Kiev. Ukraine. Ukraine Gate – February 09, 2021 – Economy
No court fee is charged for consideration of a case on tortious liability of public authorities or local self-government bodies.
The relevant provision is contained in the decision of the Supreme Court of Ukraine of December 29, 2020 in case № 924/159/14.
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Circumstances of the case
By a decision, the Commercial Court of Appeal dismissed the LLC’s appeal.
The Court of Appeal noted that the subject of consideration in this case is a dispute related to the economic activity of the debtor, which is considered directly in the bankruptcy case and is a dispute of a property nature.
The court noted the unfoundedness of the applicant’s arguments about the need to apply in this case the provisions of subparagraph 10 of paragraph 2 of part two of article 4 of the Law “On court fees”and that the subject matter of the dispute relates to the refutation of the property actions (inaction) of the debtor LLC in the bankruptcy proceedings and the reference to the confirmation of its position on the decision of the Supreme Court in the case № 915/441/18. The court noted that the subject of the claim in this case does not fall under the notion of refutation of property actions (inaction) of the debtor – LLC in bankruptcy proceedings, as the subject of the dispute is directly recovery of property damage – the claim, expressed in property, price, money, which accordingly entails the payment of the appropriate amount of court fees, namely – 1.5% of the price of the claim. The court also noted that the lawsuit in this case was filed not by the arbitral trustee or creditor in the bankruptcy case, but by the debtor.
The Supreme Court noted that the courts did not take into account that Article 1173 of the Civil Code, to which the plaintiff referred in the statement of claim, is special and provides for certain features characteristic of the consideration of tortious liability of public authorities, local governments and their officials, which are different from the general rules of tortious liability. The legislator also provides for the peculiarities of collecting court fees for consideration of this category of cases by the court. Thus, paragraph 13 of the second part of Article 3 of the Law “On Judicial Fees” provides that for filing a claim for damages caused to a person by illegal decisions, actions or omissions of a public authority, authority of the Autonomous Republic of Crimea or local government, their official or official, as well as illegal decisions, actions or omissions of bodies carrying out operational and investigative activities,
The Supreme Court notes that local and appellate courts, in assessing the case and the grounds identified by the plaintiff in the application, must be guided by the principle of jura novit curia (“the court knows the laws”), according to which the court must independently examine the parties’ arguments. finding out in the case that the party or other party to the proceedings to substantiate their claims or objections did not refer to the rules of law that actually govern the disputed legal relationship, the court independently carries out the correct legal qualification of such legal relations and applies to decide those substantive and procedural law, the subject of regulation of which are the relevant legal relations.
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Therefore, the local court, in assessing the subject matter, the grounds of the claim and the subject-matter specified by the complainant in the statement of claim, had to apply the second part of Article 3 of the Law on Judicial Fees, which provides for cases where the court fee is not collected. The appellate court, reviewing the case on appeal, also did not take into account these requirements, and therefore erroneously concluded that the plaintiff’s failure to pay court fees for filing a statement of claim in this category of cases should be assessed as failure to leave the statement of claim without movement and is the basis for its return.