REVIEW OF PRACTICE OF CIVIL AND ECONOMIC AFFAIRS OF GRAND CHAMBER OF SUPREME COURT FROM 20.06.2018

From "PRIKHODKO&PARTNERS", adopted from June 20 to July 4, 2018. In 2016, the Constitution was amended and a new Law of Ukraine "On Judicial System and Status of Judges" was adopted, according to which the Supreme Court in the system of judicial system of Ukraine is the Supreme Court (Article 125 of the Constitution, article 17 of the Law).

We bring to your attention the review of the judicial practice of civil and economic cases of the Grand Chamber of the Supreme Court adopted from June 20 to July 4, 2018:

Case № 308/3162/15-ts, resolution of 20 June 2018

In accordance with Article 541 of the Civil Code of Ukraine, a joint and several liability arises in cases established by the contract or by law, in particular in the case of the indivisibility of the subject of the obligation. The legislation of Ukraine does not provide for joint and several liability of the insurer and the insured for compensation of damage caused by the accident as a result of the accident of the victim. In the sense of clause 33.2 of Article 33 of the Law of Ukraine "On compulsory insurance of civil liability of owners of land vehicles" and a note to Article 124 of the Code of Ukraine on Administrative Offenses for obtaining insurance payments under a contract of compulsory insurance of civil liability of owners of land transport the means of the protocol on the administrative offense and the resolution on bringing to administrative responsibility can not be the only evidence of guilty person, the head damaging the victim's property.

Case № 317/2520/15-ts, resolution of 20 June 2018

According to the content of Articles 1, 5, 7, 8 and 12 of the Law of Ukraine "On Farmers", after the conclusion of a land lease agreement for conducting a farm and holding a state registration of such a farm, the tenant of this land plot performs the farm, and not a citizen, to whom it was provided.

Consequently, disputes related to the provision of land without a land auction to an existing farm by leasing an additional plot of land for the holding of a farmer to its founder and the subsequent transfer of this land to the use of the farm, should be considered under the rules of economic legal proceedings.

Case № 909/403/17, resolution of 26 June 2018

The dispute regarding the exclusion of an apartment from the number of employees is private law, since its decision affects the rights and obligations of individuals who use such an apartment, and the cases in such disputes within the meaning of Articles 1, 12 of the Code of Civil Procedure of Ukraine and taking into account the provisions of the Housing Code of the Ukrainian SSR for the subjective composition of the parties is not subject to consideration by the rules of economic legal proceedings.

Case № 902/517/17, decree of June 26, 2018

According to articles 1, 12 of the Commercial Procedural Code of Ukraine and subject to the provisions of Article 17 of the Code of Administrative Procedure of Ukraine, consideration by administrative courts shall be subject to disputes having a public-law basis, that is, arising from the power and administrative functions or executive and administrative activities of public bodies. If a person's right to a land plot is violated as a result of the decision, the dispute concerns private legal relations and is subject to consideration in civil or commercial proceedings, depending on the subjection of the parties to the dispute.

Case № 909/971/17, Order of 26 June 2018

The dispute regarding the exclusion of an apartment from the number of employees is private law, since its decision affects the rights and obligations of individuals who use such an apartment, and the cases in such disputes within the meaning of Articles 1, 12 of the Commercial Procedural Code of Ukraine, taking into account the provisions of the Housing Code of the Ukrainian SSR, according to the subjective composition of the parties, are not subject to consideration by the rules of economic legal proceedings.

Case № 607/12895/17, resolution of 27 June 2018

The judge refuses to open the proceedings in case the application is not subject to consideration in the procedure of civil proceedings (paragraph 1 of the second part of Article 122 of the Civil Code of Ukraine in the wording valid until December 15, 2017; paragraph 1 of part one of Article 186 of the Civil Code of Ukraine in the wording of the Law of Ukraine "On amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and other legislative acts "of October 3, 2017).

In deciding on the opening of proceedings in relation to the appeal of the decision of the subject of authority to approve land use documentation regarding the allocation of land and its ownership or use, the court must determine whether this decision was implemented, that is, whether it acquired it the addressee has a corresponding right to the land plot, after which the challenged decision has expired.

The court refuses to open proceedings in accordance with paragraph 1 of part one of Article 186 of the Civil Code of Ukraine in the wording of the Law of Ukraine "On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Justice of Ukraine and other legislative acts" of October 3, 2017, if the addressee of the decision of the subject of authority to approve land use documentation regarding the assignment of a land plot and the provision of it for ownership or use has not acquired the corresponding substantive right.

If from the statement of claim and its annexes it is impossible to establish the fact of acquiring the contested decision of the real rights to the land plot by the addressee, the court opens the proceedings in the case. In case if after that it will be established that the specified right of right has not received the addressee of the contested decision, the court closes the proceeding in the case on the basis of clause 1 of part one of Article 255 of the Civil Code of Ukraine in the wording of the Law of Ukraine "On amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, Code of Administrative Legal Proceedings of Ukraine and other legislative acts "of October 3, 2017.

Case № 916/2791/16, Decree dated June 27, 2018

Disputes about the cost of utilities for servicing premises in multi-apartment buildings are subject to consideration in the economic procedure only in cases of compliance of their subjects with the requirements of the Civil Code of Ukraine.

Case № 917/1345/17, decree dated 03 July 2018

Cases arising between a limited liability company and its members regarding the acquisition of the company's funds by these parties as dividends or in respect of the maintenance of such funds without sufficient legal grounds are corporate.

The possibility of applying to such disputes Article 1212 of the Civil Code of Ukraine is excluded if the participants have received funds on the basis of a valid decision of the general meeting.

Case № 653/1096/16-ts, resolution of July 4, 2018

Owners own the rights to own, use and dispose of their property. According to Article 317 of the Civil Code of Ukraine, the contents of the property right are not affected by the residence of the owner and the location of the property.

In accordance with Part 4 of Art. 334 of the Civil Code of Ukraine, the rights to immovable property subject to state registration arise from the day of such registration in accordance with the law.

The person who registered the ownership of the object of the real estate acquires all the rights of the owner. The possession of real estate (possessio) can be confirmed, in particular, by state registration of ownership of this property in accordance with the procedure established by law (the principle of registration of ownership).

In accordance with Part 1 of Art. 118 of the Housing Code of the UkrSSR, residential residential premises are intended for settlement by citizens who, in connection with the nature of their labor relations, must reside at or near the place of employment.

One of the features of hiring a home is, in particular, that the tenant has the right of temporary possession (detentio) him. Owning (possessio) housing remains with its owner, who does not lose this right even when another person uses such property illegally.

The owner has the right to claim his property from a person who illegally acquired it without a proper legal basis (Article 387 of the Civil Code of Ukraine).

According to Art. 124 of the Housing Code of the UkrSSR, workers and employees who have ceased labor relations with the enterprise, institution, organization, are subject to eviction from an official housing with all persons who reside with them without the provision of another accommodation.

Even if the owner of the dwelling does not demand the release of this dwelling, living in it after the termination of the employment relationship with the employer does not indicate the lawfulness of its use by the person to whom it was provided at the time of the existence of the specified relationship.

According to Art. 256 of the Civil Code of Ukraine, the limitation period is a term within which a person may apply to the court for the protection of his civil law or interest.

As long as the person is the owner of the real estate, it can not be restricted in the right to apply to the court with a claim to remove obstacles to the exercise of the right to use and dispose of this property, including by eviction. As a result, a negative action can be brought up throughout the duration of the relevant offense.

In accordance with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to respect for his private and family life and for his home. Public authorities can not interfere with the exercise of this right except in cases where the interference is in accordance with the law and is necessary in a democratic society in the interests of national and public security or economic well-being of the country, in order to prevent disturbances or crimes, to protect health or morals or to protect the rights and freedoms of others.

The eviction of a person from a dwelling without the provision of another dwelling space is possible, provided that such interference with the person's right to respect for housing is provided for by law, pursues the legitimate aim set forth in article 8, paragraph 2 of the Convention, and is necessary in a democratic society. Compliance with the latter criterion is determined in the light of whether there is an urgent public need for such a restriction on the right to respect for housing and whether the interference with this right will be proportional to the legitimate aim pursued.

Case № 761/12665/14-ts, decree dated 04 July 2018

Article 53 of the Law of Ukraine "On Enforcement Proceedings" specifies the peculiarities of recourse to a debtor in foreign currency and enforcement of decisions in calculating foreign currency debt.

In the case of indication in a court decision on the collection of funds in foreign currency, with the definition of the equivalent of such amount in the hryvnia payer, the amount in foreign currency specified in the resolution part of the court decision, and not its equivalent in hryvnia, shall be transferred.

The transfer to the collector of the amount in the national currency of Ukraine or in a currency other than the currency specified in the operative part of the court decision is not considered to be due execution of the court decision.

Case number 755/18006/15-ts, resolution of July 4, 2018

Article 1191 of the Civil Code of Ukraine and Article 38 of the Law of Ukraine "On Compulsory Insurance of Civil Liability of Owners of Land Vehicles", on the one hand, and Article 993 of the Civil Code of Ukraine and Article 27 of the Law of Ukraine "On Insurance", on the other hand, regulate different on the content of the relationship.

In cases where tort relations are combined with the relation of obligatory insurance of civil liability of owners of land vehicles, the debtor in a tort liability within the amount of the insurance indemnity advocates the insurer of the inflicted damage. This insurer, though not harmed, but is obliged to be a subject to the victim, to whom he pays the insurance indemnity instead of the harmholder in accordance with the procedure provided for by the Law of Ukraine "On compulsory insurance of civil liability of owners of land vehicles". After such payment, the tort liability is terminated by its proper performance by the insurer of the damage inflictor instead of the latter. Under the conditions provided for in Article 38 of the said Law, this insurer acquires the right of a reverse claim (regress) to the claimant for the amount of damage paid to the victim.

In accordance with Article 993 of the Civil Code of Ukraine and 27 of the Law of Ukraine "On Insurance", the insurer of the victim transfers the right to a claimant to the detriment of a tort liability within the amount of the insurance indemnity paid to the victim. After such a payment, the tort liability is not terminated. In this there is a change of creditor: the victim's insurer passes the claim right that belonged to this victim in the tort liability within the amount of insurance compensation paid to him. Such a transition is a subrogation.

In accordance with Article 1194 of the Civil Code of Ukraine, a person who insured his civil liability, in case of insufficiency of the insurance payment (insurance compensation) for full compensation of the damage caused to him, is obliged to pay the victim the difference between the actual amount of damage and the insurance payment (insurance compensation).

Thus, compensation for damage by a person whose liability is insured under a contract of compulsory insurance of civil liability of owners of land vehicles is possible provided that in accordance with this agreement or the Law of Ukraine "On Compulsory Civil Liability Insurance for Owners of Land Vehicles "The insurer did not have a duty to pay insurance indemnity (in particular, in the cases provided for in Article 37), whether the amount of damage inflicted exceeds the limit of liability insurance vetch. In the latter case, the amount of liability of the policyholder is limited by the difference between the actual amount of harm done and the amount of insurance indemnity.

The imposition of a duty to compensate for damage within the limits of insurance indemnity to the insured who entered into the relevant insurance contract and pays insurance premiums contradicts the objective of the civil liability insurance institute (Article 3 of the Law of Ukraine "On Compulsory Insurance of Civil Liability of Owners of Land Transport means ").

Having concluded an agreement on compulsory insurance of civil liability, the insurer undertakes, in the event of a tort liability, within the amount of the insurance indemnity for fulfilling the obligation of the insured who caused the damage. Therefore, the insurer, who paid the insurance indemnity under the property insurance contract, in accordance with Articles 3 and 5 of the said Law, exercises the right to claim stipulated by Articles 993 of the Civil Code of Ukraine and 27 of the Law of Ukraine "On Insurance" by way of suing an insurer in which the applicant causes damage insured its civil liability.

Case number 361/3009/16-ts, resolution of July 4, 2018

Courts consider, in accordance with the procedure of civil proceedings, the case concerning the protection of violated, unrecognized or disputed rights, freedoms or interests arising, inter alia, from civil and land relations, except when such cases are being considered in accordance with the rules of other legal proceedings (Article 15.1 of the Civil Code of Ukraine in the wording effective until December 15, 2017).

Courts consider in civil proceeding cases that arise, in particular, from civil and land relations, except cases, which are being considered in a different procedure (Article 19.1 of the Civil Code of Ukraine, as amended, effective December 15, 2017).

Economic courts are subordinate to cases arising out of land relations, in which economic entities participate, with the exception of those that fall within the competence of administrative courts (paragraph 6 of the second part of Article 12 of the Code of Civil Procedure of Ukraine, as amended, effective until December 15, 2017 year)

Commercial courts consider, in particular, cases in disputes concerning property rights, including land, registration or registration of rights to property, which (the rights to which) are the subject of a dispute, the invalidation of acts that violate such rights, except for disputes, the party to which is an individual who is not an entrepreneur, and disputes regarding the seizure of property for public needs or the motives of public necessity (Article 20, paragraph 1, Article 20 of the Civil Code of Ukraine, as amended, effective December 15, 2017).

Disputes arising from land relations, in which, in particular, economic entities participate, if the subject of such dispute concerns the rights or obligations of individuals who do not engage in economic activities as entrepreneurs registered in accordance with the law, have considered by the rules of civil proceedings.

Case number 910/2603/17, decree dated 04 July 2018

In accordance with Article 993 of the Civil Code of Ukraine and Article 27 of the Law of Ukraine "On Insurance", the insurer who paid the insurance indemnity under the property insurance contract transfers the claim right, which the insured or other person who received the insurance indemnity, responsible for the losses incurred in the tort liability incurred as a result of a traffic accident. The replacement of a creditor in a tort liability in the order of Article 993 of the Civil Code of Ukraine and Article 27 of the Law of Ukraine "On Insurance" is a subrogation that does not change the order of the limitation period.

According to part one of Article 261 of the Civil Code of Ukraine, the limitation period begins from the day when the person knew or could have learned of the violation of his right or of the person who violated him. In accordance with part one of Article 260 of the Civil Code of Ukraine, the limitation period is calculated according to the general rules for determining the terms established by Articles 253 to 255 of this Code. In accordance with the requirements of Article 253 of the same Code, the period of time begins on the next day after the corresponding calendar date or occurrence of the event, with which its beginning begins. At the same time, in accordance with part one of Article 254 of the Civil Code of Ukraine, the term, determined by years, expires in the corresponding month and the number of the last year of the term. For the controversial relationship, the general limitation period of three years is applicable (Article 256, 257 of the Civil Code of Ukraine). Thus, if the day of the onset of the event is the day of the accident, the total limitation period of three years starts from the day following the day of the accident , and pops up to the corresponding number and month of the last year, that is, corresponding to the number and month of the event.