The current Code of Civil Procedure of Ukraine allows the court not to proceed with the case in fact, if the defendant has a legal entity changed address.

Oleksandr Pysarenko.

Especially for the Yuridicheskaya Praktika neswpaper.

Objectivity, competitive and comprehensive review of cases in court are the main provisions of the civil proceedings in the Ukraine. To comply with these principles GIC establishes a number of safeguards, one of which lies in the fact that the court defer consideration of the facts of the case in the event of failure to appear at a hearing of the parties, for which no information on the receipt to her agenda. If the case will be considered by the court in the absence of one of the persons who took part in it, not notified about the subpoena of time and place of the hearing, the court’s decision is subject to cancellation and direction for a new trial (paragraph 3 of Article 307 CPC).

One can not disagree with the fairness and reasonableness of these rules. Only upon receipt of summons party learns of the time and place of the hearing. Accordingly, in this case, the party has an opportunity to realize the rights of a trial – to participate in the hearing, to submit their evidence to refute the opponent’s evidence, explanations, arguing, etc.

But the rules of CPC of Ukraine governing the implementation of these rules, so do not correspond to contemporary reality of relations between subjects of the trial, in which the defendant is a legal entity that can turn them from the guarantees of legality in the guarantee of lawlessness.

As you know, going to court, the plaintiff must specify in the statement of claim the full names of the defendants, their place of residence or location. Thus, the law imposes on the plaintiff’s duty to clarify and inform the court identified the correct information, on which the timely review of his case.

A legal entity recognized by the location of its permanent body (Article 30 of the Civil Code of Ukraine). The condition of the location of the enterprise is a prerequisite of the statute (Article 9 of the Law of Ukraine “On Enterprises in Ukraine”). Location address of the company shall be entered into the register of business entities and the Unified State Register of enterprises and organizations of Ukraine. In the event of a change of address the governing body of an enterprise is required within seven days to notify the state registration body and to provide for the registration of a change in the statute, as well as a certificate of registration for the appropriate changes (paragraphs 26, 27 Provisions on state registration of business entities, approved by Cabinet Ministers of Ukraine dated May 25, 1998). Authority that registered the change of address of the enterprise, makes changes to the registry of business entities, as well as notify the appropriate Department of Statistics, sending an informational message.

If the defendant is a legal person, claims to it are presented to the court at the location of its governing body (Article 125 CPC).

Thus, the plaintiff, having on hand a copy of the certificate of registration of an enterprise of the respondent, as well as contacting the Department of Statistics and getting the proper help on the whereabouts of the defendant company, points out in the Statement of the location of the defendant – the address specified in such documents, unless, of course, plaintiff does not know the location of other standing body of the defendant. At this address is sent a subpoena. Plaintiff expects the case in fact at the appointed time. If the defendant received the summons and fails to appear at the hearing, the court adjourned the case (part 2 of article 172 CCP). If the defendant will receive another summons and not re-appear for the hearing, the court may review the case, but only if it contains sufficient materials on the rights and relations between the parties. If the defendant does not receive the summons and fails to appear at the hearing, the court must defer consideration of the case (the mandatory rule of Part 1 of Article 172 CPC).

Last the above rule, at first glance, designed to ensure the legality of the proceedings and the rights of its members, so uncoordinated with other rules CPC does not meet the reality that allows the court not to proceed with the case in fact, if the defendant just changed address.

In January 2003, the Law Office of Pisarenko asked the founder of M “Citizen S., owns 50% of the statutory fund, to provide legal services to protect its interests, disturbed during the general meeting of the Company. The general meeting of the citizen AS was excluded from the membership of M “, dismissed the director, and appointed a new director.

A few days after the meeting of the Company “M”, without telling a citizen of SA, left the office, at which have been registered in the state register (rented apartments) and conducts its activities. All property and documents of M “were taken. About the new actual location of M “citizen of the St. has not been notified.

In the Shevchenko district court of Kiev has been sued to invalidate the general meeting of M and cease actions that violate the rights of the plaintiff. The defendants – a founder (individual) and “M”. Upon presentation of the claim location of M “was named the address specified in the certificate of registration, otherwise the location of M” the plaintiff is not known. At this address, the court had sent summons. Naturally, the agenda returned to the court with numerous notes on the impossibility of separation mail delivery to the addressee because of the fact that “the office door closed” more than 7 days. In accordance with Article 94 of the CPC agenda, addressed to the company, handed over official who signs the receipt on the return receipt. Thus, the agenda is handed. In case of failure of officials from obtaining the agenda face, delivers the agenda, put a corresponding mark on it, confirms its signature of the official building management or the signature of at least two people and returns to the court. In this case, the agenda is also deemed to be delivered.

As follows from Article 94 of the Code of Civil Procedure, the law contains no such grounds, claiming to be entrusted to the agenda as closed doors destination for some time.

During the adoption of the Civil Procedure Code (1963) the situation is the lack of a legal entity in its inability to address either a summons from the fact that the door is closed the company is simply not tolerated. Therefore, the agenda always was given to a legal entity on its location.

To date, the situation is the absence of the defendant by registered mail are often, as in a court case at the suit of a citizen to S. OOO “M”.

In that court case Shevchenko district court of Kyiv, quite legitimately, on the basis of paragraph 1 of Article 172 of the CPC, adjourned the case is essentially due to the absence in the hearing of M, for which no information about his acceptance of the agenda.

The next court hearing the situation repeated. Additionally, the plaintiff was granted an act drawn up with the participation of the lessor apartment, at which have been registered OOO “M”, and the head housing organization for the absence of M “at the apartment. In addition, the plaintiff was given the court a certificate issued upon request, based on the Regulation on the procedure and conditions for issuing information from the Unified State Register of Enterprises and Organizations of Ukraine, approved by Decree of the Ministry of Statistics № 43 dated February 12, 1996, Kyiv City Statistical Office, dated for one day before the hearing, in which the number is still the same address of M “. Summons directed to the defendant, was returned to the court and marked as the chief housing organization of the impossibility of her presentation due to lack of the defendant.

Providing documents and pointing out that otherwise the location of M “is not known to the plaintiff, a representative of the plaintiff asked the court to hear the case in fact, referring to article 96 of CPC. This procedural provision states that if the place of actual residence is not known to the defendant, the court shall consider the matter after receiving the agenda with the signature of the official housing organization last known place of residence the defendant that the recipient can not give him a summons for his absence.

Nevertheless, in a conflict of norms in Article 96 and 172 of the Code of Civil Procedure, the court gave preference to the article 172 and the case postponed. A similar situation is repeated in the third and the fourth time.

Practically, on the basis of paragraph 1 of Article 172 of the CPC, if the defendant – a legal entity has not received the summons, the proceedings may be postponed indefinitely. Thus, if the defendant – a legal person replaced office without notifying the plaintiff and not notifying the state registration body, and if the plaintiff does not know the actual location of “escape” the defendant, despite the fact that a summons sent to the location of the defendant’s listed at the moment hearing in the founding documents and the state register, they can not be handed over, therefore, the case will be delayed.

Article 97 of the Code of Civil Procedure provides: If the place of actual residence is not known to the defendant, the court may declare it in the search both on its own initiative or at the request of the plaintiff. On the one hand, even if the search will be declared, it does not guarantee detection of the actual location of the respondent and awarding him a summons. On the other hand, Article 97 of the Code of Civil Procedure contains a right, not a duty of the court declare the search. Thus, if the court denies the plaintiff in satisfaction of his statements, it is not subject to appeal.

Article 95 of the Code of Civil Procedure provides that persons involved in business, must report to the court to change its address during the proceedings. If no request for change of address agenda sent to the last known address and shall be deemed delivered, even if the addressee at that address is no longer live. This rule does not apply if the defendant had not received any summons. In this case, the defendant, though to him, and brought the claims, is not participating in, as he was on trial is not known. On the other hand, the wording of Article 95 of the Code of Civil Procedure “… agenda … shall be deemed delivered, even if the addressee at that address is no longer live” means that this rule applies to individuals, and not to legal persons.

If you know exactly what your respondent – the legal person was in the apartment, the only way out – to ask the court to hear the case in the absence of the defendant on the basis of Article 96 of the CPC, that is, when you receive the agenda marked with an official house management of the impossibility of her presentation due to the absence of the defendant. Such withdrawal is far from perfect and does not warrant consideration of the case by the court.

In the simultaneous operation of the rules of Articles 96 and 172 GIC court has the right to use one of them. According to the general principles of law enforcement, the two legal standards applicable special, that is the case should be considered in the presence of the agenda with a note on the impossibility of delivery. But if the court adjourned the case due to non-receipt of the agenda by the defendant, that is, apply the general rule rather than the special, get back the plaintiff can not. Question deposits to make a decisive ruling of the court. An appeal court ruling is allowed only in cases provided by GIC (Article 290). Determination on adjournment of the case is not included in the list of definitions that can be appealed (Part 1 of article 291 CCP).

As a result, in the absence of signature of the person the defendant on the back of the receipt to the agenda, despite the fact that the summons sent to the appropriate address listed in the constituent documents of the defendant and not amended at the time of the case by the court if the plaintiff does not know the location of another defendant, the court can not proceed to consider the case in fact. Thus, strictly observing the law, the court, on the other hand, this very well and it breaks: being designed to protect the rights and interests of participants in the judicial process by solving the dispute, the court does not stop them from further violations of the infinite deposition hearing on the substance.

In the above case the claim of the citizen AS the founder and “M” plaintiff failed to find a new resident director of “M”. Once the defendant – a legal entity has not received the agenda for the virtual absence of the registered address and did not appear in the trial for the fifth time, and in fact there was a receipt of the new director of “M” that he had received the agenda for the home address, the court proceeded to consideration of the facts of the case.

It seems reasonable to include in the new Civil Procedural Code of Ukraine provision stating that the defendant – a legal entity that is not at the location specified in the actual founding documents and the actual location is not known to be notified of the time and place of the hearing, if the information on the review the case was published in advance in one of the official media.

PYSARENKO Oleksandr.