There have been several important developments in the practice of the higher courts of Ukraine released in November.
- The Supreme Court of Ukraine having heard the claim seeking the declaration of the agreement fictitious concluded that when deciding whether the agreement is fictitious the courts shall be guided by the real intention of the parties thereto as well as the relations between the parties established by the agreement. The Supreme Court of Ukraine also noted that a prior judicial invalidation of the fictitious agreement is not necessary for the court to hold that the agreement is fictitious (Ruling No. 6-133цс12 of 14.11.2012).
- The Supreme Court of Ukraine in case pertaining to the termination of the surety agreement held that a surety agreement terminates if the non-agreed changes to the agreement entails the increase in the surety's liability (i.e. increase in interest rates). The surety in such instances is not required to bring a separate action seeking the termination of the surety agreement. However should there arise a dispute, the surety is entitled to the relevant remedies (Ruling No. 6-134цс12 of 21.11.2012).
- The Supreme Court of Ukraine in case on the collection of liquidated company’s debt from its surety concluded that the winding up of a legal entity results in the termination of all its obligations under loans agreements, subsequently the sureties securing these loans agreements also come to an end (Ruling No. 6-129цс12 of 07.11.2012).
- The Supreme Court of Ukraine in the case pertaining to the invalidation of agreement filed by the non-party thereto highlighted the following.
The Plaintiff shall select the appropriate remedy with due regard to the actual relief seeking.
In cases where Plaintiff seeks restoration of her title to the thing (that is a subject of the contested agreement) the courts shall conclude that there are substantial relations between the parties to the dispute. Consequently the Plaintiff should claim vindication or recognition of her ownership title to the thing in question. However, if the violated Plaintiffs' rights can be restored by the restitution of the disputed agreement, the claim seeking its invalidation is permitted (Ruling No. 6-107цс12 of 07.11.2012).
- The Supreme Court of Ukraine concluded that in rei vindication cases the courts shall resolve the dispute giving due notice only to the fact of unwilling retirement of the property from the owner (the Plaintiff). Thus the fact of the unwilling retirement of the property at issue from the agent selling (disposing of) it to bona fide purchaser should not be taken into account by the courts (Ruling No. 6-136цс12 of 21.11.2012).
- The Supreme Court of Ukraine once more draws the attention to the issue of the statute of limitation. Thus the statute of limitations shall be applicable only by the motion of the party to the dispute and only before the first instance court renders its decision (Ruling No. 6-101цс12 of 21.11.2012).
- The Higher Specialized Court for Civil and Criminal Cases in its circular letter No. 223-1679/0/4-12 dated 15.11.2012 explained that under the provisions of the new Criminal Procedural Code of Ukraine if the legal entities (acting through their representatives) suffered damages as a result of a crime and have the status of a “victim” in criminal procedure, they shall be entitled to enter into the conciliation agreements with the accused.