The effect of the norm of the fifth part of Article 142 of the Civil Procedure Code of Ukraine regarding the compensation of court costs in the case of closing the proceedings applies to legal relations arising in connection with the consideration of complaints about actions, decisions, inaction of the executor. This conclusion was reached by the Supreme Court as a member of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation, after considering in the procedure of simplified legal proceedings the cassation appeals of a limited liability company (LLC) and an individual against the decision of the Zakarpattia Court of Appeal in case No. 308/9100/19-ts . The circumstances of the case
The lawyer of an individual entrepreneur appealed to the court with a complaint against the actions of the state executive of the Uzhgorod City Department of the State Executive Service of the Main Territorial Department of Justice in Zakarpattia Oblast regarding the use of the property valuation report, the interested parties: the individual himself and two limited liability companies.
The appeal was dismissed by the decision of the court of first instance. The appellate court annulled the mentioned court decision and closed the proceedings in the case on the basis of paragraph 1 of the first part of Article 255 of the Civil Code of Ukraine, since the dispute was subject to consideration in the order of administrative proceedings. The interested parties (collectors) asked the appellate court to make an additional decision on the distribution of court costs for legal aid and to collect the relevant costs from the applicant in their favor. The appellate court refused to grant the applications, referring to the fact that, in accordance with the requirements of Article 452 of the Civil Code of Ukraine, court costs related to the consideration of the complaint are assigned by the court to the applicant, if a decision was made to reject his complaint. However, in this case, the proceedings on the complaint were closed, the court did not make a decision to reject the complaint, therefore there are no legal grounds for imposing court costs on the applicant.
Disagreeing with this, the LLC and the individual filed cassation appeals to the Supreme Court, in which, referring to the violation of procedural law by the appellate court, they asked to cancel the contested court decision and refer the case to the appellate court for further consideration.
As the basis for the cassation appeal against the decision of the Transcarpathian Court of Appeal, LLC and the individual noted the incomplete clarification by the court of appeal of the factual circumstances of the case, incomplete investigation and provision of a legal assessment of the evidence available in the case regarding the deprivation of the applicants' right to compensation for legal aid expenses incurred by them, related to the review affairs.
They believed that the appellate court incorrectly applied Article 452 of the Civil Code of Ukraine and did not apply Article 142 of the Civil Code of Ukraine.
In particular, the LLC's cassation appeal is motivated by the fact that the court's violation of the rules of procedural law consists in the fact that, contrary to the provisions of Article 142 of the Civil Code of Ukraine, the company was wrongfully denied the application for the adoption of an additional decision, thereby depriving it of its right to compensation for the expenses incurred by it, related to consideration of the case.
The appellate court, the complainants pointed out, closing the proceedings in the case on the grounds provided for in clause 1 of the first part of Article 255 of the Civil Code of Ukraine, should have been guided by the fifth part of Article 142 of the Civil Code of Ukraine, according to which in the case of closing the proceedings in the case or leaving the claim without consideration, the defendant must the right to claim compensation for expenses incurred by him, related to the consideration of the case, as a result of unreasonable actions of the plaintiff.
In their opinion, the appellate court unjustifiably denied the company compensation for incurred legal costs.
The cassation appeal of PERSON_2 is motivated by the fact that the appellate court, closing the proceedings in the case on the grounds provided for in paragraph 1 of the first part of Article 255 of the Civil Code of Ukraine, did not apply the provisions of the second part of this article and did not decide the issue of the distribution of court costs between the parties.
The Supreme Court canceled the decision of the appellate court and referred the case to the appellate court in view of the following. The court pointed out that the general rule regarding the compensation of court costs in the event of closing the proceedings is provided for in part five of Article 142 of the Civil Procedure Code of Ukraine, according to which in the case of closing the proceedings in the case or leaving the claim without consideration, the defendant has the right to claim compensation for the costs incurred by him, related to the consideration of the case, as a result of the plaintiff's unjustified actions. The appellate court was guided by the provisions of Article 452 of the Code of Criminal Procedure of Ukraine, however, this special rule of procedural law concerns other legal consequences, in particular, consideration of a complaint against the actions of a state executive on the merits. In the case under review, the appellate court closed the proceedings on grounds of violation of the rules of jurisdiction.
Therefore, in the Court's opinion, the general provisions of the civil procedural legislation, namely Article 142 of the Code of Criminal Procedure of Ukraine, were applicable, in particular, regarding the proceedings for complaints against the actions and decisions of the executor. The Supreme Court considered that the appellate court improperly investigated the above, did not take into account the requirements of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms on a fair trial and fair court procedures, and reached a premature conclusion that there were no grounds for imposing court costs on the plaintiff, since the procedural the law provides for the possibility of compensation for court costs in case of closing the proceedings in the case.