Review of the practice of the Supreme Court in the period from 3 to 14 September 2018

Earnings awarded by the court for the period of forced absence are paid withholding taxes and fees

Case № 359/10023/16-c 

The employer lawfully withheld personal income tax and military duty from the court-determined amounts of recovery of average earnings during the forced absence of the employee and compensation for non-pecuniary damage. This conclusion was reached by the Supreme Court.

The Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Civil Court of Cassation, concluded that a systematic analysis of the law led to the conclusion that the amounts determined by the court to be recovered from the employer in favor of the employee as average earnings during forced absence were calculated and fees. The latter are subject to accrual by the employer in execution of the relevant court decision, as a result of which the amount paid to the employee is reduced by the amount of taxes and fees.

In addition, the deduction of taxes and mandatory payments from average earnings during forced absence does not worsen the situation of the employee who was reinstated, because during this period, if in office, the employee would receive a salary from which taxes would also be deducted. and fees.

A single mother, including one who is not married, as a former family member of a serviceman cannot be evicted from a dormitory without providing other accommodation.

Case № 493/1942/15-c

The Supreme Court, composed of a panel of judges of the Second Judicial Chamber of the Civil Court of Cassation, noted that the issue of eviction from a dormitory has its peculiarities related to protecting the housing rights of dormitory residents from unilateral termination of the lease and eviction without legal grounds. 132 of the Housing Code of the Ukrainian SSR, the Regulations on Dormitories and the Law of Ukraine "On Ensuring the Realization of Housing Rights of Dormitory Residents". In Part 3 of Art. 1 of this Law states that its scope extends to dormitories that are objects of state and communal property, except for dormitories that are under economic management or operational management, in particular, military units.

The courts came to premature conclusions on the extension of the Law of Ukraine "On Ensuring the Realization of Housing Rights of Dormitory Residents" to the disputed legal relations. At the same time, these conclusions do not affect the legality and validity of the conclusions of the courts of previous instances on the groundlessness of this claim in general.

To the disputed legal relationship regarding eviction from the dormitory is subject to the application of Art. 132 LCD of the USSR. According to the rules of this norm, persons who have stopped working for reasons other than those specified in Part 2 of this Article, as well as persons listed in Art. 125 of this Code, can be evicted only with the provision of other housing.

In Art. 125 of the Housing Code of the Ukrainian SSR, among other things, states that without the provision of other housing in the cases specified in Art. 124 of this Code, the following may not be evicted: families of servicemen; single people with minor children living with them.

Single mothers (who are not married) can also be included in the category of single persons.

The Supreme Court noted that a person with a disability is entitled to preferential travel

Case № 711/6330/17-c

According to the provisions of Articles 37 and 38 of the Law of Ukraine "On Road Transport" preferential transportation of passengers who in accordance with the law enjoy such rights, provided by road carriers that carry passengers on public bus routes. A contract for the carriage of a passenger by bus on a public route is concluded between the road carrier and the passenger. For persons who enjoy the right of preferential travel, such an agreement is concluded from the moment of boarding the bus.

Thus, this Law establishes the right of a passenger who enjoys benefits on transport, to directly use the discounted fare, presenting the bus driver with a standard certificate.

Article 38-1 of the Law of Ukraine "On the basis of social protection of disabled people in Ukraine" provides that, in particular, disabled people of group I have the right to free travel in passenger public transport (except taxis). Narrowing the content and scope of the right of persons with disabilities to preferential travel by transport is not allowed.

The plaintiff as a war veteran - a participant in hostilities on the basis of paragraph 7 of Part 1 of Art. 13 of the Law of Ukraine "On the status of war veterans, guarantees of their social protection" has the right to free travel, in particular, buses suburban and intercity routes, including intra-district, intra- and interregional, regardless of distance and place of residence. The defendant, as a road carrier that carries passengers on public bus routes, is prohibited from refusing concessional transportation, except as provided by law (Article 37 of the Law of Ukraine "On Road Transport").

Resolution of the Supreme Court on the distribution of court costs related to the case

Case № 910/23235/17

The Commercial Court of Cassation of the Supreme Court noted the following. In accordance with Part 3 of Art. 130 Code of Civil Procedure of Ukraine in case of refusal of the plaintiff from the claim the costs incurred by him by the defendant are not reimbursed, and the costs of the defendant on his application are collected from the plaintiff. However, if the plaintiff does not support his claims due to the satisfaction of the defendant after filing a lawsuit, the court on the plaintiff's application awards recovery of costs incurred by him in the case from the defendant.

According to parts 1 and 3 of Art. 123 Code of Civil Procedure of Ukraine court costs consist of court fees and costs associated with the case. The costs associated with the case include the costs of: 1) professional legal assistance; 2) related to the involvement of witnesses, specialists, translators, experts and examination; 3) related to the demand for evidence, the review of evidence at their location, the provision of evidence; 4) related to the commission of other procedural actions necessary for the consideration of the case or preparation for its consideration.

Since LLC "X" filed an application to involve him as a third party who does not make independent claims on the subject of the dispute, on the part of the defendant, and in accordance with Art. 130 Code of Civil Procedure of Ukraine in case of refusal of the plaintiff from the claim the right to reimbursement of court costs is provided only to the defendant in the case, the plaintiff has the right to withdraw the claim at any stage of the proceedings, the courts of previous instances closed the proceedings. 4 h. 1 st. 231 of the Code of Civil Procedure of Ukraine and denied LLC "X" in satisfaction of the application for reimbursement of court costs. The courts of previous instances had no grounds to apply in the disputed legal relationship the provisions of Part 13 of Art. 129 of the Code of Civil Procedure of Ukraine, to which the complainant refers, because this case was not considered on the merits and the dispute was not resolved in it, and therefore it was impossible to reach an unambiguous conclusion that

On the practice of application by the Supreme Court (CCC) of the institute of insignificant cases

Case № 607/9863/17 

The purpose of this novelty of civil proceedings is a reasonable simplification, efficiency and differentiation of the process, including cassation proceedings.

Given the novelty of the application of this procedural institution (cassation filter) in practice, it provokes lively discussions, including on social networks. In particular, Facebook users drew attention to the decision of the Civil Court of Cassation of the Supreme Court of July 20, 2018 in  case № 607/9863/17 (cassation proceedings № 61-39667 SK 18), in which the decision of the Supreme Court of September 7, 2018 corrected note and stated that the subject of the claim in this case is the recovery of debt for district heating services.

The main motive for the discussions is, according to the contributors, the Supreme Court's disregard for the rule of law and the restriction of access to justice.

It should be noted that the Supreme Court in its activities unconditionally applies the principle of the rule of law, enshrined in Articles 8, 129 of the Constitution of Ukraine, Article 10 of the CPC, as evidenced by numerous relevant court decisions.

However, one of the elements of the rule of law is the principle of legal certainty res judicata (ECtHR Brumarescu v. Romania). According to this principle, neither party has the right to demand a review of the final and binding court decision for one purpose only - to seek reconsideration and a new decision in the case. The powers of higher review courts should be exercised to correct judicial errors and deficiencies, not to reconsider the case. Such a control function should not be considered as a disguised appeal, and the mere possibility of the existence of two opinions on the subject matter of the dispute cannot be a ground for a new trial. Deviation from this principle is possible only when required by the relevant compelling and insurmountable circumstances (ECtHR Ryabykh v. Russia).

In the above case, the subject of the dispute was the recovery of debts for district heating services in the amount of UAH 11,260.64. Therefore, in view of the above, the Supreme Court must apply the mandatory rules of procedural law, given that the cassation review is an extraordinary stage of civil proceedings.

Thus, in accordance with paragraph 1 of part six of Article 19 of the CPC, the only formal criterion for automatically classifying a case as insignificant is the amount of the claim price (not exceeding 100 subsistence levels). In this case, part three of Article 389 of this Code of the Court of Cassation is required to take into account that court decisions in minor cases are not subject to cassation appeal, except as provided in paragraph 2 of this rule of law.

These provisions of the procedural law do not violate the Constitution of Ukraine and international legal acts.

Reviewing the case in cassation, the Supreme Court, which in accordance with part three of Article 125 of the Constitution of Ukraine is the highest judicial body, performs the function of "court of law", which considers disputes that have the most important (fundamental) significance.

This is in line with Recommendation № R (95) 5 of the Committee of Ministers of the Council of Europe of 7 February 1995, which recommended that Member States take measures to determine the range of issues excluded from the right of appeal and cassation to prevent any abuse of the appeal system. Pursuant to Article 7 (c) of this Recommendation, complaints to the court of third instance should first be lodged against those cases that deserve a third trial, such as cases that will develop law or promote a uniform interpretation of the law. They may also be limited to complaints in cases where issues of law are relevant to the general public. The complainant should be required to justify the reasons why his or her case will contribute to the achievement of such objectives.

According to the case law of the European Court of Human Rights, which is the source of law (Article 17 of the Law of Ukraine "On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights"), the conditions of admissibility of a cassation appeal may be stricter. ordinary statement. However, the right to a court is not absolute and may be subject to permissible restrictions on the content, in particular on the conditions of admissibility of complaints, and such restrictions may not prejudice the substance of the right of access to court, must have a legitimate aim and must be justified and purpose, paragraph 36 of the judgment in Golder v. the United Kingdom of 21 February 1975 and paragraph 27 of the judgment in Pelevin v. Ukraine of 20 May 2010. France ”(Levage Prestasion Service v. France) of 23 October 1996; «Brualla Gomez de la Torre v. Spain ”(Brualla Gómez de la Torre v. Spain) of 19 December 1997). France ”(Levage Prestasion Service v. France) of 23 October 1996; «Brualla Gomez de la Torre v. Spain ”(Brualla Gómez de la Torre v. Spain) of 19 December 1997).

In the cassation appeal filed against the court decisions in the above case, which by law is insignificant, no reference was made to the fact that there are cases that would allow the court of cassation to consider and motivate them.

Thus, the problem here is not the rule of law or obstruction of access to justice, but the quality and completeness of the cassation appeal, which was filed in June 2018, despite the fact that the Supreme Court since January 2018 has developed the practice of applying the above amendment to the CPC court decisions, as well as in scientific publications of judges of the Supreme Court on this issue, which were to assist the participants in the process.

VP VS commented on the application of Art. 1212 of the Central Committee of Ukraine to legal relations on use of the land plot without registration of the lease agreement

Case № 629/4628/16-c

The right to lease land arises on the basis of the relevant agreement from the moment of state registration of this right. The emergence of ownership of a house, building, structure is not a ground for the emergence of the right to lease the land on which this object is located and which was not leased to the previous owner. However, given the requirements of Part 2 of Art. 120 of the Land Code of Ukraine, it is not an offense the absence of the owner of the house, building, structure of the registered lease of land, which has another owner and on which these house, building, structure are located.

Until the owner of the real estate obtains the right to lease the land on which the object is located, the relationship of actual use of land without a lease agreement and the owner does not receive income in the form of rent are inherently conditional.

The actual user of the land plot, who without a sufficient legal basis at the expense of the owner of this plot kept the funds he had to pay for its use, is obliged to return these funds to the owner of the land plot on the basis of Part 1 of Art. 1212 of the Civil Code of Ukraine.

The Supreme Court has expressed a position on resolving disputes on the recognition of a notary's writ of execution as unenforceable

Case № 320/8269/15-c

The current legislation of Ukraine regulates the methods and procedure for foreclosure on collateral. In the extrajudicial method of foreclosure on collateral, it is necessary to take into account the requirements of a special law, which is the Law of Ukraine "On securing creditors' claims and registration of encumbrances."

The courts of previous instances found that the plaintiff - an individual and the defendant - LLC "X" entered into a loan agreement. To ensure the fulfillment of obligations under the loan agreement, the parties entered into a pledge agreement for the vehicle. The plaintiff did not pay the debt within the terms set by the creditor, LLC "X" appealed to a private notary with a statement of execution of the writ of execution. The plaintiff also disputed the circumstances regarding the receipt of the notice of early repayment of the loan. The private notary made a writ of execution, which is obliged to collect on the vehicle owned by the plaintiff, in accordance with the pledge agreement to satisfy the claims at the expense of funds received from the sale of this vehicle.

The possibility of foreclosure on the subject of the pledge on the basis of the notary's writ of execution is provided by the laws of Ukraine "On Notary", "On Pledge", "On Securing Creditors' Claims and Registration of Encumbrances". At the same time, the procedure for foreclosure on mortgaged property is regulated in the Law of Ukraine "On Securing Creditors' Claims and Registration of Encumbrances", which is special.

The encumbrancer, who initiates the application for foreclosure on the subject of security encumbrance, is obliged to register in the State Register of encumbrances on movable property (hereinafter - the Register) information on the application for foreclosure on the subject of collateral.

This requirement is consistent with Part 1 of Art. 27 of the special law, according to which the encumbrancer, who intends to collect the penalty on the security encumbrance out of court, is obliged to send a written notice to the debtor and other encumbrances on the violation of the obligation secured by the encumbrance. The notification shall be sent simultaneously with the registration in the Register of information on the application for foreclosure on the subject of security encumbrance.

These requirements are mandatory and do not depend on the discretion of the collector. Evasion from sending such a notice to the debtor, registration in the Register of Information, as well as non-compliance with the 30-day period from the moment of registration are violations, due to which the notary can not make a writ of execution on foreclosure on collateral.

Absence in the Law of Ukraine "On Notaries" and in the Procedure for notarial acts by notaries of Ukraine, approved by the order of the Ministry of Justice of Ukraine, a requirement for a notary to verify the actions of the claimant to comply with a special law on registration in the Register -day from the moment of registration does not indicate the possibility of a notary not to comply with these requirements. When the notary establishes at the stage of opening notarial proceedings that the statement of the claimant does not contain such information or the claimant has not provided the necessary documents confirming these circumstances, it prevents him from making a writ of execution.

In connection with the above, the Grand Chamber of the Supreme Court considers the fact that the claimant did not comply with the provisions of Part 3 of Art. 24 and Part 1 of Art. 27 of the Law of Ukraine "On securing creditors' claims and registration of encumbrances" and did not register in the Register of information on foreclosure before the notary makes a writ of execution, a sufficient legal basis for recognizing it as unenforceable. 

Resolution of the Supreme Court on the correct determination of the nature of relations in enforcement proceedings

Interior and number 910/23713/17

In the case № 910/23713/17 a lawsuit was filed to invalidate the contract for the assessment of property arrested in the enforcement proceedings, the parties to which are the defendants, and motivated by the conclusion of this contract in violation of parts 1, 2, 4 of Art. 203 of the Civil Code of Ukraine, Art. 57 of the Law of Ukraine “On Enforcement Proceedings” and Articles 10, 11 of the Law of Ukraine “On Valuation of Property, Property Rights and Valuation Professional Activity in Ukraine”, as the disputed transaction was made without the consent of the property owner and aimed at underestimating the value of seized property. rights and interests of the plaintiff.

The Commercial Court of the city of Kyiv, by a decision of March 19, 2018, upheld by the decision of the Kyiv Commercial Court of Appeal of May 23, 2018, dismissed the claim. Judicial decisions are motivated by the absence between the defendants of property and economic relations and the emergence of disputed legal relations on the basis of the decision of the state executor, issued within the enforcement proceedings.

The panel of judges of the Commercial Court of Cassation of the Supreme Court noted that relations between the parties to the case are governed by the Law of Ukraine "On Enforcement Proceedings" and other regulations on enforcement of court decisions.

At the same time, the relevant relations are not civil, as they are related exclusively to enforcement proceedings, and therefore they are not subject to regulation by the Central Committee of Ukraine, and acts issued by the state executor and his actions in enforcement proceedings do not fall under the terms of the transaction. of the said Code, in particular its Article 202. Therefore, such acts and actions in principle cannot be appealed according to the rules and on the grounds specified by civil law. At the same time, a participant in enforcement proceedings who considers that the decision, action or inaction of the state executor, another official of the state executive service body during the execution of the court decision violated his rights, is not deprived of the right to appeal such decisions, actions or inaction.