ANALYSIS OF JUDICIAL PRACTICE FROM 04.07.2018 YEAR OF 01.08.2018

Consider the decisions of the Supreme Court in the composition of the panel of judges of the Court of Cassation and the ruling of the Supreme Court in the composition of the board of judges of the Court of Cassation of the court from 04.07.2018 to 01.08.2018.

Case number 686/114/16-ts, decree dated 04.07.2018

The Supreme Court, in the composition of the panel of judges of the Court of Cassation, overturned the decision of the Court of Appeal, which refused to comply with the application for reduction of the court fee of the participant in the court proceedings, the defendant, from whom the arrears under the loan agreement were charged in the amount of 48,609.99 dollars. The USA and a fine of 2 000 UAH. His appeal was declared unsatisfied by the court and returned due to violation of the provisions of art. 8 of the Law of Ukraine "On court fees" (in the wording effective at the time of the adoption of the appeal decision).

Referring the case to the court of appellate instance for further review, the Supreme Court proceeded from the fact that the provisions of the Articles of the CPC of Ukraine and the Law of Ukraine "On Court Fee" do not contain an exhaustive and clearly defined (clear) list of documents that can be considered as confirming the property status person In each case, the court establishes the possibility for an individual to pay a court fee on the basis of evidence submitted by him regarding his property status in his internal conviction. At the same time, grounds for refusal of a court in similar applications must be adequately argued.

The court of cassation confirmed its conclusion that in accordance with the practice of the European Court of Human Rights, the requirement to pay state fees is a restraining measure for potential plaintiffs from making frivolous and unfounded claims. In order to ensure a fair balance between maintaining the normal functioning of the judiciary and protecting the applicant's interests when filing a lawsuit, the domestic courts exempt from the payment of the state duty of applicants who can confirm their poor financial status (paragraph 111 of the ECtHR judgment of 20 February 2014 in the case of Shishkov v. Russia ("Shishkov v. Russia")).

Consequently, when assessing the financial situation of a person who appeals to a court requesting her to be exempted from payment of a court fee, reduction of its amount, granting of a deferral or installment payment, the national courts must establish the presence of such person real income (wages, scholarships, pensions, profits, etc.), movable or immovable property, securities, the ability to dispose of them without a significant deterioration of financial position.

Case number 219/11736/16-ts, decree dated July 11, 2018

In accordance with Article 19 of the Law of Ukraine "On Combating Terrorism", compensation for damage caused to citizens by a terrorist act is carried out at the expense of the State Budget of Ukraine in accordance with the law, with subsequent collection of the amount of this compensation from persons who have suffered harm in accordance with the procedure established by law.

That is, the obligation to compensate for the damage inflicted on the state independently of its fault, and after the reimbursement to the state passes the right to claim the guilty       person.

Proceeding from the systematic analysis of articles 1, 11 and 19 of the specified Law of Ukraine, the establishment of persons who committed a terrorist act who carried out terrorist activities, the presence of a conviction of a court against them, is not a condition for the reimbursement of damage by the state on the basis of Article 19 of the said Law.

However, Part 9 of Article 86 of the Civil Protection Code of Ukraine stipulates that provision of housing for the victim or payment of monetary compensation at the expense of the state shall be carried out subject to the voluntary transfer to the local state administrations or local self-government bodies of the victim, destroyed or damaged as a result of an emergency. Consequently, in accordance with the law, requiring the state to pay compensation for the property destroyed during the antiterrorist operation, the owner of the property must initially, that is, before the court decision is passed, voluntarily transfer the house or property to the local state administrations damaged or destroyed as a result of a terrorist act, or bodies of local self-government, which the plaintiff did not do

Any other procedure for determining the amount of compensation for a damaged apartment, due to such an emergency as a terrorist act, is currently absent.

Case number 911/2635/17, decree dated July 11, 2018

Part 1 of Article 254 of the Commercial Procedural Code stipulates that the participants of the case, persons who did not participate in the case, if the court has decided on their rights, interests and / or duties, have the right to file an appeal against the decision of the court of first instance.

However, both civil and commercial procedural laws do not specify who exactly is such persons, how courts should find out the belonging of other persons to the subjects of appeals.

A person who believed that the court decisions resolved the issue of his rights and obligations, appealed to the court of appeal with the corresponding complaint, in which he requested to involve him in the case as a third party without separate requirements for the subject of the dispute as a person who is not took part in the case, but the court of first instance decided on its rights and interests as the owner of the property located on the disputed land plot.

The decision of the Court of Appeal in the satisfaction of the application was denied due to the subject matter of the dispute and established in the circumstances, the court's decision in this case can in no way affect the rights, duties and interests of the said person. At the same time, the court opened the proceeding under the aforementioned appeals, and by its decision refused to satisfy the appeal.

Part 1 of Art. 254 of the Civil Code of Ukraine defines the circle of persons who have the procedural right to appeal the court decision, which are divided into two groups - the participants of the case, as well as those who did not take part in the case, but the court decision concerns their rights, interests and responsibilities.

In this case, in contrast to the appeal of a court decision by a party to a case, a person not involved in the case must prove that he has a legal connection with the parties to the dispute or directly by a court decision, justifying the existence of three criteria: the court decision on its right, interest, The duty and such connection should be obvious and unconditional, but not probable.

Consequently, the decision is such that the rights and obligations of a person who was not involved in the case if the reasoning part contains the conclusions of the court on the rights and obligations of the person, or in the resolution part of the judgment, the court has expressly indicated about the rights and responsibilities of such persons.

Case number 336/6535/16-ts, decree dated July 11, 2018

The petition of the energy company (Open Joint Stock Company Zaporizhzhyaoblenergo) was motivated by the fact that the controllers of the Raid Brigade of the OJSC during the verification of compliance with the Rules for the Use of Electricity for the Population (PCEE) found a magnet installed on the calculated electricity meter, resulting in the stopping mechanism, and a counter did not take into account the electricity consumed. That is, the consumer has taken actions that led to the consumption of non-electric power. According to this fact an act was drawn up, which the respondents refused to sign, but it was signed by three representatives of the OJSC.

The court of first instance found that the defendants denied the fact that the electrical energy meter was interrupted by installing a magnet counter, which led to a change in its impressions, and that the plaintiff did not carry out an examination to confirm this fact. In view of these circumstances, the court concluded that the JSC did not provide the court with proper and admissible evidence to support the fact that the respondent was interfering with the operation of the electricity meter, and thus failed to prove its claims. In connection with the above, the court of first instance refused to comply with a claim for the recovery of the cost of unplanned electrical energy.

The Supreme Court, in the composition of the panel of judges of the Court of Cassation, recognized that the fact of consumer interference in the operation of the recording devices, including the actions of the consumer, which led to a change in the displays of accounting devices, in particular, by the influence of magnetic field, in the event that they did not recognize such a fact, The order of magnitude should be confirmed by the expert assessment envisaged by the regulatory act - Methodology for determining the amount and value of electric energy not accounted for as a result of consumer violations of the rules of using electric energy, solid by the decision of the National Electricity Regulatory Commission of Ukraine dated May 4, 2006 No. 562.

Case number 915/1145/17, decree dated 17.07.2018

Limited Liability Company in the person of the manager of the sanation - the arbitration manager appealed to the Commercial Court with a suit against LLC for the invalidation of the license agreement (Agreement) on the transfer of rights to use the trademark.

Claims were motivated, because: the challenged transaction signed by the licensor by an unauthorized person in the absence of evidence of its approval by a legal entity; the contract falsified the date of its conclusion; available defect in the seal of the plaintiff's seal contained in the contract; the licensor continued to fully use the proprietary rights of the trademark certificate in such a way that this contract was not accepted for execution and did not fit in at all.

The Economic Court of Appeal, by abolishing the court decision negative for the plaintiff, adopted a new one - on satisfaction of the claim, with which the Supreme Court also agreed.

For the technical examination of the document (details of the document, printed forms) its original is required, which at the request of the court was not provided by the defendant, the Economic Court of Appeal came to a reasoned conclusion about the impossibility of conducting expert research (in the absence of the object of the study).

At the same time, the court noted that in the case of failure to submit a party to the case the evidence sought by the court without valid reasons or without notice of the reasons the court, depending on which person evade their submission and what these evidences are relevant, can recognize the circumstances for which the claim was sought proof, or refuse to recognize it, or to consider the case on the evidence in its possession, and in the absence of such evidence by the plaintiff - also leave the claim without consideration.

Taking into account the above, taking into account the distribution of the burden of proof, the court reached a reasoned conclusion that the defendant did not refute the claim of the plaintiff regarding the date of conclusion of the Contract. The above also applies to prove the authenticity of the stamp of the plaintiff's seal on the Agreement, as well as the powers of the person who signed the Contract on the day of its conclusion.

Consequently, the claims for recognition of the Agreement are invalid on the grounds stipulated by the requirements of ch. 1, 2, 3, 5 st. 203 of the Civil Code of Ukraine, Part 1 of Art. 215 of the Civil Code of Ukraine are legal and lawful.

The Supreme Court noted that Part 2 of Art. 42 of the Code of Civil Procedure of Ukraine established that the participants of the case are obliged, in particular: to contribute to timely, comprehensive, complete and objective establishment of all circumstances of the case; to submit all evidence available to them in the order and in the terms established by law or court, not to conceal evidence in accordance with the requirements of Part 1 of Art. 43 of the Code of Civil Procedure of Ukraine parties to the trial and their representatives must use procedural rights in good faith; abuse of procedural rights is not allowed.

Case number 713/1528/16-ts, decree dated July 18, 2018

A woman who lived in an unregistered marriage with the deceased appealed to the court with a claim to change the order and obtain the right to inherit, basing this on the fact that the right to inherit the law in the first turn has the son of the testator, and it is in the fourth turn. With the decedent, the latter lived with one family, was associated with a common life, had reciprocal rights and responsibilities. At the time of the discovery of the inheritance the testator was 75 years old. For the last two years before his death, he was seriously ill, could not take care of himself and needed constant help. His own son lived with his family separately and did not take care of his father even before his death.

At the same time, the plaintiff cared for, cared for and provided material for the deceased for 10 years, all the while living with him a single family, they were associated with a common life and had reciprocal rights and responsibilities, and therefore, in her opinion, the latter is the successor to the first queues

The courts of the first and appellate courts in the satisfaction of claims were denied due to the fact that the plaintiff had not been provided with adequate evidence that he had been taking care of, for a long time, materially and provided other assistance to the testator who, because of his advanced age, serious illness or injury, was in a helpless state. The very fact of the joint and long-term residence of one family is not sufficient grounds for the application of the provisions of part two of Article 1259 of the Civil Code of Ukraine.

The court agreed with such conclusions and indicated that, in the content of part two of article 1259 of the Civil Code of Ukraine, an individual who is the successor to the law of the next queues may, by decision of the court, obtain the right to inherit with the heirs of the queue which has the right to inherit, provided that she had been taking care for a long time, providing materially, providing other care to the testator who was in a helpless state because of his advanced age, serious illness or injury.

The reasons for the satisfaction of the claim to change the order of succession by inheritors under the law of inheritance law is a set of the following legal facts, established in the court: 1) the exercise of custody of the heir, that is, providing him with non-material services (communication, advice and advice, congratulations on holidays, etc.) ; 2) material maintenance of the testator; 3) the provision of any other assistance to the decedent, that is, such assistance, which has a materialized expression - cleaning the premises, cooking, repairing the apartment; 4) long-term implementation of the actions specified in paragraphs 1-3; 5) a helpless state of the testator, that is, a condition in which a person is unable to independently meet his needs caused by the elderly, serious illness or injury. To satisfy such a claim, the presence of all five of the above circumstances is required.

The materials of the case contain a certificate that the pension of the deceased substantially exceeded the pension of the plaintiff, which indicates the inability of the latter to provide financial support to the testator, as well as the certificate that the deceased son carried out the burial of his father by himself.

Case number 916/3255/17, decree dated July 24, 2018

The local economic court opened the proceedings and held a preparatory meeting in it. However, after the preparatory meeting and the appointment of the consideration of the case in substance, the said statement of claim was left without motion in connection with the non-payment of the court fee in full and provided a time limit for elimination of the identified deficiencies.

The plaintiff in the time established by the court does not eliminate the shortcomings of the statement of claim, in connection with which the decision of the local economic court the statement of claim is left without consideration.

The Court of Appeal issued a decision that was quashed, and the case was referred for further consideration to the court of first instance.

The Court of Cassation, having reviewed the case on the cassation complaint of the defendant, left the decision of the Court of Appeal unchanged and, in substantiating its position, noted the following.

According to part 11 of Article 176 of the Code of Civil Procedure of Ukraine, the judge, having established, after the opening of proceedings that the claim was filed without observing the requirements set forth in Articles 162, 164, 172 of this Code, decides not later than the next day, which shall state the reasons for the abandonment of the application without movement, about which the plaintiff informs and gives him a term for elimination of defects, which can not exceed five days from the date of delivery of the plaintiff's ruling.

In accordance with Part 13 of Art. 176 of the Code of Civil Procedure of Ukraine, if the plaintiff did not eliminate the defects of the statement of claim within the term established by the court, the statement of claim remains without consideration.

In this case, the court of first instance closed the preparatory proceedings and assigned the case to the merits of the court hearing, and only then, on the basis of part 11 of Article 176 of the Code of Civil Procedure of Ukraine, ordered the removal of the statement of claim without motion. However, the absence of a statement of claim without motion in this case could only take place before the opening of preparatory proceedings in the case.

Consequently, the court of first instance, having already established at the stage of consideration of the merits of the case, that the claim was filed without observance of the requirements set forth in Articles 162, 164, 172 of this Code, had to consider the case on the merits, and the court costs related to the consideration case, to divide according to the results of such consideration in accordance with Article 129 of the Code of Civil Procedure of Ukraine.

Thus, the court of first instance, through its own oversight, did not, at the stage of opening the proceedings, pay attention to the partial non-payment of the amount of the court fee by the party to the case. At the same time, such a fact should not create such an obstacle to access to justice in the subsequent stages of the proceedings. Such an approach to the solution of this issue is consistent with the principle (principle) of the rule of law, enshrined in paragraph 1 of the third part of Article 3 and in the first paragraph of Article 11 of the Code of Civil Procedure of Ukraine, is, in the circumstances, fair and justifies the legitimate expectations of a person for consideration of her case by a court reasonable time.

Case number 180/683/13-ts, decree dated July 25, 2018

Article 129-1 of the Constitution of Ukraine stipulates that the court decides in the name of Ukraine. The judgment is binding. The state ensures execution of a court decision in accordance with the procedure established by law.

In accordance with Article 67 of the Constitution of Ukraine, everyone is required to pay taxes and fees in the order and in the amounts established by law.

In accordance with Article 383 of the Civil Procedure Code of Ukraine 2004, the parties to the enforcement proceedings have the right to appeal to the court if they consider that the decision, action or inaction of a state executive or other official of a state executive service or a private executor in the execution of a court decision adopted in accordance with this Code violates their rights or freedoms.

Article 387 of the Civil Procedure Code of Ukraine in 2004 established that in case of establishing the validity of a complaint, the court shall declare the impugned decisions, actions or omissions unlawful and oblige the state executor or other official of the state executive service, the private executor to satisfy the claimant's claim and to eliminate the violation or otherwise renew it his violated rights or freedoms.

The Supreme Court drew attention to the fact that, in accordance with subparagraph (a) of subclause 164.2.14, paragraph 164.2 of Art. 164 of the Tax Code of Ukraine to the total monthly (annual) taxable income of the taxpayer include income in the form of a penalty (fines, penalties), compensation for tangible or non-pecuniary (non-pecuniary) harm, except for the amount that, by decision of the court, is directed towards reimbursement of losses inflicted on the payer as a result of causation it pecuniary damage, as well as damage to life and health.

Consequently, the current tax legislation provides that the amounts of compensation for non-pecuniary (moral) damage, imposed on the basis of a court decision, are included in the taxable income of the taxpayer, respectively, subject to taxation, except for the amounts that, by decision of the court, are directed towards the reimbursement of losses inflicted upon the payer as a result of causing him damage to life and health.

Case number 382/1039/16-ts, the decree of 25.07.2018

In case of dismissal of an employee due to changes in the organization of production and labor, namely, because of the reduction of the staff (Article 40, paragraph 1, Article 40, paragraph 1, of the Labor Code of Ukraine), there are advantages to abandonment of work as established by Article 42 of this Code of Labor Law. At the same time, the range of employees, among which determine the persons who have a preferential right to leave at work, and workers who do not have such benefits, and therefore are subject to release, include all employees who occupy the same position and perform the same job at the enterprise , and not only those who work in the structural unit, where the work was performed, or the employee who was to be dismissed.

The court did not take into account the arguments of the defendant (employer) that the positions of engineers can not be compared because of the various functional responsibilities of engineers, and therefore compared the qualifications of only two employees of the structural subdivision in which the plaintiff worked.

Case number 333/5649/16-ts, decree dated July 25, 2018

The Supreme Court, as part of the board of judges of the Court of Cassation, noted that, in accordance with clause 1.7 of the current order of the Ministry of Health of the USSR of September 8, 1988, No. 694 "On Measures for the Further Improvement of Medical Education to Determine the Use of Alcohol and Condition and paragraph 2 of the Provisional Instruction on the Procedure for the Medical Examination to establish the fact of drinking and intoxication, approved by the Ministry of Health of the USSR dated September 01, 1988 No. 06-14 / 33-14, a medical examination for the establishment of the fact of drinking and intoxication is done in specialized offices of narcological dipansers (departments) by doctors-psychiatrists-narcologists or in medical-prevention institutions by doctors-psychiatrists-narcologists and doctors of other specialties who have been trained.

Thus, conducting a medical examination of the plaintiff by the physician of the regional state clinical narcological dispensary meets the requirements for carrying out such medical examinations.

At the same time, the act drawn up at the medical center of the station is not a valid evidence to confirm the fact that the plaintiff is in a sober condition, since the examination was not carried out in accordance with the requirements of the medical examination for the establishment of the fact of drinking and intoxication, the persons who signed and made the act are not specialists in the field of medicine. The court also takes into account that the state of alcohol intoxication (the level of alcohol in the blood) can only be determined by special means and by a person who has medical education.

In accordance with paragraph 25 of the resolution of the Plenary Session of the Supreme Court of Ukraine "On the practice of consideration of labor disputes courts" of November 6, 1992, No. 9, it was clarified that in resolving cases on the resumption of work of persons whose employment contract was terminated on the basis of clause 7 . 40 of the Labor Code, the courts should keep in mind that for these reasons, workers may be dismissed from work for appearance at work in a state of intoxication, in a state of narcotic or toxic intoxication at any time of the working day, regardless of whether they were suspended from work, or continued to perform labor duties. For a worker with an irregular working day, the time of employment at work exceeds the established total duration is considered a worker.

The employee's noiseless condition or narcotic or toxic intoxication can be confirmed as a medical conclusion, as well as other types of evidence (Article 27 of the CPC), which the court must give an appropriate assessment.

Case number 809/1174/17, decree dated 27.07.2018

The plaintiff purchased a non-resident vehicle, a BMW car, the X3 model, 2013, which was in service and worth 12,300 euros, as evidenced by an invoice, a bank statement and a seller's letter recalculation of the specified amount of cash. In order to carry out the customs clearance of this car in the electronic customs declaration, the custom value was determined precisely at the price of the contract.

Meanwhile, the Customs (the defendant) in connection with the lack of documents specified in Part 2 of Art. 53 MK of Ukraine, all information confirming the numerical values ​​of the components of the customs value of the goods or information about the price refused the customs clearance (release) of goods, which was accepted by the refusal card and the decision on adjusting the customs value, according to which, using the backup method, determined the customs the cost of the imported car in the amount of 14,329.00 euros,

The above was the basis for an administrative claim for the recognition of the wrongful and cancellation of the said card refusal to accept the customs declaration, customs clearance of release or passage of goods, vehicles for commercial use and the decision on adjusting the customs value of goods.

The Administrative Court, whose decision was left unchanged by the decision of the Administrative Court of Appeal, was pleased with the case, which the Supreme Court also agreed on as a panel of judges of the Administrative Court of Cassation.

The declarant is obliged, in particular, to submit to the customs authority reliable information on the determination of the customs value, which must be based on objective, documented data, which is computable (Part 2 of Article 52 of the Criminal Code of Ukraine). According to Art. 53 MK of Ukraine, in cases provided by the Criminal Code of Ukraine, simultaneously with the customs declaration, the declarant submits to the body of incomes and fees documents confirming the declared customs value of the goods and the chosen method of its determination. Among such documents, including an invoice (invoice); if the invoice is paid, - bank payment documents relating to the estimated product; if available, other payment and / or accounting documents confirming the value of the goods and containing the requisites necessary for the identification of the imported goods.

As to the duties of the Customs, in the decision on the adjustment of the declared customs value, the customs authority must give an explanation of the corrections made and indicate the detailed information used by the customs authority when determining the customs value of the goods under valuation using the reserve method.

Consequently, the respondent was not proved to have a reasonable doubt as to the correctness of the plaintiff's determination of the customs value of the goods, whereas the plaintiff confirmed the declared customs value of the goods with the necessary documents. This, in turn, indicates that there are no grounds for adjusting the customs value of the goods imported by the plaintiff and the unlawfulness of the decision taken by the Customs to adjust the customs value of the goods.

Determination of the customs value by the standby method is mainly carried out by a specially created commission, which provides an expert assessment of the object crossing the border. When using this method, it is assumed more flexible than other methods, that is, the use of price directories containing a complete description of goods at the assortment level; catalogs and similar publications, data on stock quotes; the use of statistics on the usual levels of fees, discounts, profits, transport tariffs, etc.

In its ruling of December 12, 2011, in the case No. 21-378а11, the Supreme Court of Ukraine, rejecting the customs complaint, noted that the court of cassation in the case under review was right to conclude that the decisions of the customs authority regarding the application of the sixth (reserve) method of determining the customs value the goods without successive use of the previous five, as established by part five of Article 266 of the MK, and without justification of the impossibility of their application.

Case number 754/8605/16-ts, the resolution dated 01.08.2018

A former employee was dismissed on the basis of clause 1 part 1 of Art. 36 of the Labor Code of Ukraine (with the consent of the parties) filed suit with the employer on the collection of wages and average earnings for the entire time of delay in the calculation of the release, considering the amount of compensation for unused holidays is deliberately underestimated, and referring to the data on salary and income in his opinion, is the basis for the application of the norms of Art. 117 Labor Code of Ukraine, that is, payment of compensation for the delay of settlement at release.

The decision of the court of first instance, with which the court of appeal accepted the claims, is fully satisfied, since payments to an employee for the performance of work in the working groups and the receipt of an individual remuneration for the provision of scientific and technical services should be included for the basic calculation of the average wage, since performance of work under contracts was determined by his job description, these payments were not one-off and were included in the range of employment obligations of the plaintiff.

However, for such decisions, the employer filed a cassation appeal on the grounds that, when calculating the average wage in all cases of its preservation, according to the current legislation, disbursements for execution of separate orders (one-time nature) not included in the employee's labor duties are not taken into account. The execution of contracts for research topics in the working group is not a plaintiff's duty, and therefore the payment of remuneration for work in the working groups for the performance of contracts should not be taken into account for determining the average wage to calculate the amount of compensation for unused vacation.

The Court of Cassation quashed the decisions of the local and appellate courts and refused to satisfy the claim in connection with the fact that according to the norms of paragraphs. "A" Clause 4 of the Procedure for Calculating the Average Salary, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 100 dated February 8, 1995, when calculating the average wage in all cases of its preservation, according to the current legislation, disbursements for fulfillment of separate orders (one-time nature) are not taken into account, that are not part of the employee's labor duties.

At the same time, the provisions of a statutory act of an enterprise and regulating the activities of the unit in which the plaintiff worked in the functions assigned to such a unit does not have such function as execution of economic contracts or contracts on research topics. At the same time, assignment to a division of duties that does not belong or beyond its competence is not allowed.

Payments in the form of remuneration for work performed under contracts are not remuneration for the work performed in accordance with official duties, they are separate types of payments to various components of the structure of wages.

Consequently, according to the above-mentioned provisions, the execution of commercial contracts was not part of the plaintiff's official duties.

Thus, the employer in calculating the amount of compensation to the plaintiff for unused annual leave lawfully did not take into account the payment of individual remuneration for participation in the working groups when performing economic contracts on research topics.