Procedural abuses during the implementation of judicial protection under martial law — recommendations of a lawyer


Procedural abuses during the implementation of judicial protection under martial law — recommendations of a lawyer

Court protection of violated rights in economic proceedings since the introduction of martial law in Ukraine has acquired a certain update of the rules, which are mostly related to the behavior of the unscrupulous party – the debtor, who understands for himself the so-called bonuses in the circumstances that exist in the country. Touching on certain aspects of procedural abuse, it is worth paying attention to the following.

Currently, due to objective reasons, when the plaintiff applies to the court at the defendant's place of residence and is unable to personally participate in the trial, the proceedings are mostly held via video conference.

Thus, the defendant, who intends to consider the case as long as possible (and, accordingly, not to fulfill the obligation to pay), having absolute confidence that the plaintiff has the originals of the primary documents, because he has his own copies, applies the requirements to the court to demand the originals for review in court, expressing doubts about their existence. The court cannot refuse to demand the originals, which would be grounds for appealing such a decision in the future. Most often, sending such originals by post carries the risk of loss/damage, etc., which creates a forced necessity for the plaintiff to personally visit a court located in another area, as well as lengthens the interval between the dates of consideration of the case. In this case, we personally recommend presenting the originals for review from the first hearing of the case at the preparatory meeting and using video conferencing at future meetings. It is also advisable to use it through the video conference room of the local court, where the employee of this court, upon providing him with the originals, announces the evidence presented to the court for review and confirms their originality.

Most often, the debtor's position is a denial of his conclusion (signing by a director, representative, etc.) of any contracts that are the basis for collection and/or primary documents.

Thus, at the preparatory stage, requests for the appointment of a handwriting examination of such documents are submitted. At the same time, the parties and the court understand that such an examination, as a rule, is carried out for at least two months, and the consideration of the case is stopped for this period. After that, the case must go to court again, go through the procedure of resuming proceedings and setting a hearing date with advance notification and summoning of the parties.

In this context, objecting to the court's granting of such requests in the case, we recommend paying attention to the Supreme Court's opinion and applying the provisions of judicial practice established:
  • in the resolution of the Supreme Administrative Court of the Supreme Court of July 23, 2019 No. 918/780/18 – the presence of a seal on a deed, in the absence of evidence of the illegal use of the latter or evidence of its loss (for example, an appeal to law enforcement agencies in connection with loss or theft) , is an additional argument in favor of the fact that the transaction corresponded to the will of the legal entity on whose behalf the transaction was signed. The same should be applied to primary documents regarding commodity transactions;
  • in the resolution of the Supreme Administrative Court of the Supreme Court of December 22, 2021 in case No. 918/208/21, where it is stated that the signing of the deed by the plaintiff's director is confirmed by the presence of the plaintiff's seal impressions as a legal entity on the disputed contract. The seal belongs to the data that make it possible to identify the person who participated in the implementation of the relevant legal relationship.

In this context, the position of the debtor and his request for the appointment of an expert opinion clearly indicate the insufficiency of the arguments for the appointment of an expert opinion, it is aimed at achieving the maximum procedural delay of the consideration of the court case, which we suggest that the court immediately pay attention to.

In addition, we emphasize that the debtor's manipulations in court with concepts such as "critical infrastructure enterprise" and arguments about his assistance to the army and volunteer activities were most often observed.

This happens precisely in order to reduce fines imposed by the court (Article 233 of the Economic Code of Ukraine, clause 3.17.4 part 3 of the resolution of the Higher Economic Court of Ukraine "On some issues of the practice of applying the Economic Procedural Code of Ukraine by courts of first instance" No. 18 dated 26.12.2011 ), installments of the execution of the court decision and sometimes cancellation by the court of measures to ensure the claim against the defendant.

In this context, it is expedient to define the legislative concept of such enterprises in accordance with the Laws of Ukraine "On Critical Infrastructure" and "On Mobilization Preparation and Mobilization", to check whether the debtor has a mobilization task, to confirm them for the court with relevant valid contracts regarding the involvement of the enterprise in the production of products, performance of works and provision of services to meet the needs of the Armed Forces and other military formations under martial law.

Thus, sometimes misleading the court, some debtors submit to the court, for example, copies of contracts with legal entities whose names contain the words "volunteer", "defense", etc., submit letters of request for the purchase of equipment/technique for military needs from volunteer or charitable foundations and even from military formations, while evidence of corresponding payments/purchases for the benefit of such organizations is not provided.

A separate case from the practice of judicial review of a dispute about the recovery of the amount of debt for the delivered goods and accrued fines is the debtor's submission to the court of a printout of the payment order regarding the alleged payment by the debtor of a car purchased for the Armed Forces of Ukraine.

However, after a request to confirm such payment with a duly authenticated bank document, it was found that the printout cannot be evidence and does not confirm the assistance of the Ukrainian Armed Forces by the debtor, who requested the cancellation of 80% of the penalty charged to him.

It is also appropriate to compare the period of the beginning of the fact of non-payment by the debtor (and the imposition of fines and penalties on him) with the period of the beginning of the events that made it impossible or difficult for the debtor to fulfill his monetary obligations in the context of the latter's reference to the circumstances of the martial law in Ukraine as the main reason for the impossibility of repaying the debt. Since the occurrence of debt, which was not systematically extinguished by the defendant for a long time and is not connected with the beginning of martial law, does not justify the latter's reference to the provisions of Art. 233 of the Economic Code of Ukraine during the submission of a petition to the court regarding the reduction of the accrued amounts of economic sanctions against the entity that violated the obligations.

Therefore, under such circumstances, we recommend drawing the court's attention to the need to critically evaluate each written evidence in this area submitted by the debtor in order to avoid the fulfillment of a monetary obligation or to delay it.


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