INCOMPETENCE OF COURTS? OR ARTIFICIALLY CREATING CONDITIONS FOR CORRUPTION?

Returning to the issue of corruption in courts in Ukraine, once again I want to note that the government provokes the conditions under which judges taking unjust decision "legally". In Ukraine there is no precedent as a source of law. However, each practitioner refers the decision and explanation of the higher courts. Knowledge of legislation and court practice enables the lawyer to predict the impact of litigation. In European countries, most disputes are resolved in the pretrial order, as is clear legislation is the clear position of judges.

Everyone understands that the duty of the contract must be returned, missing the statute of limitations is a ground for denying the claim, is an exhaustive list of grounds of renovation procedural terms, etc.

Ukrainian approach is unique! The approach gives rise higher courts say or incompetent judges or the artificial creation of duality proceedings to the courts below had used the jurisprudence that is more profitable and thereby possibly create conditions conducive to corruption risks.

Simply put, the Ukrainian proceedings may in absolutely identical cases (with the same parties in the same circumstances, for the same reasons) to make exactly the opposite decision.

For example the plot. The plaintiff goes to court with a claim in civil proceedings, the court returns zavu plaintiff in connection with violation of jurisdiction (place the defendant on territoriality is in the jurisdiction of another court), after returning lawsuit plaintiff refers to the appropriate court, but with the violation of the statute of limitations .

The above story at least twice considered by the Supreme Court of Ukraine.

Thus, according to the Resolution of the Supreme Court in case number 12/02/2015 6-895tss15, Motor (Transport) Insurance Bureau of Ukraine (hereinafter - MTSBU Ukraine) appealed with recourse claim for costs associated with insurance claims to _1 Persons in Moscow District court. Kharkov. The above petition the court returned to the plaintiff due to the fact that it is not the jurisdiction of this court, and explains the right to sue at the place of the defendant.

MTSBU Kominternovsky Ukraine appealed to the District Court. Kharkov for the same claim, but with the omission of the statute of limitations.

The results of the examination of this case the Supreme Court articulated the following legal opinion: "In terms of Article 257, paragraph two of Article 264, parts four, five, Article 267 of the Civil Code of Ukraine of Article 118, paragraph one of Article 122 of the Civil Procedure Code of Ukraine (hereinafter - GIC Ukraine) flow limitation by filing a claim can not be interrupted in the event of any action sending mail, and carried out in compliance with procedure law, in particular articles 109, 119, 120 CPC of Ukraine. If the court in making a claim denied or returned, the flow limitation is not interrupted. Do not interrupt the flow of such period and filing a lawsuit to noncompliance with the rules of jurisdiction. "

However, according to the Resolution of the Supreme Court in case number 22/03/2016 6-2755ts17, MTSBU Ukraine made a claim for recourse costs associated with insurance claims to Persons _2 Stavysche District Court of Kyiv region. By a decision of the court on the claim returned to the plaintiff due to the fact that it is not the jurisdiction of this court, and explains the right to sue at the place of the defendant.

MTSBU Obolon Ukraine appealed to the District Court. Kyiv with the above claim. The District Court, following the practice of the Supreme Court rejected the claim satisfied, referring essentially to set out the legal position set out SCU.

However, considering the Supreme Court listed the case has reached a completely opposite conclusion: "According to the parts of the fourth, fifth article 267 CC Ukraine expired statute of limitations, the use of which is claimed to litigants is grounds for denial of the claim. If the court finds good reason bandwidth limitation violated right be protected. "

Further, from the nature Regulation, the Supreme Court concluded that the appeal against the misuse of the court is the basis for updating the statute of limitations. As a result of the adoption of a completely opposite decision.

Further, the Supreme Court indicates that judgments rendered by comparison, setting different factual circumstances that no evidence of unequal application by courts of cassation of the same substantive law, which resulted in the adoption of different content of court decisions in similar legal relationships discrepancy court judgment cassation laid down in Regulation Ukraine Supreme Court opinion on the use of such relationship of substantive law.

The analysis described above gives grounds to say that the Supreme Court did not even notice that the parties in the case of the same dispute absolutely identical, with identical circumstances. And the results of the case completely opposite.

Now the courts below, it is legitimate to use that jurisprudence, which is advantageous in each individual case.

Question. This incompetence courts? Or artificially creating conditions for corruption in Ukraine?