In a published material justification of legitimacy of the appeal of prosecutor’s office in court in case of not rent payments is given.
According to lease contracts of the land lots term of introduction of a rent – on December 1. As of this date to one lessors who have addressed on the enterprise, the rent is paid, and others didn’t receive it for various reasons (left, etc.). The regional prosecutor’s office directed on the enterprise inquiry about providing the register of lessors to which for December 1 the rent isn’t paid. The enterprise provided such data. In turn, the prosecutor’s office addressed in district court with the statement for issue of orders of court. In the orders issued by court it was a question of collecting from the enterprise:
• a rent in favor of lessors;
• the national duties and the sums of expenses on information and technical providing an adjudication in favor of district court.
Whether actions of prosecutor’s office and court are lawful?
Yes, are lawful. I will explain in more detail.
Mandative production – is the simplified type of civil process directed on fast and effective protection of the indisputable rights of persons by issue of the order of court which at the same time is both the judgment, and the executive document. According to the Code of civil procedure of Ukraine from 18.03.04 of No. 1618-IV (further – GPK) the order of court is a special form of the judgment on collecting from the debtor of money or property reclamation according to the statement of the person to which possesses the right of such requirement, and only on demand which is based on the transaction which has been carried out in writing (Art. 95 and 96).
The prosecutor has the right to appeal to court in interests of citizens according to standards of the Law of Ukraine from 05.11.91 of No. 1789-XI About prosecutor’s office, namely:
• Art. 361 according to which the basis for a predyostavitelstvo the prosecutor in court of interests of the citizen is his inability because of a fiyozichesky or material condition, advanced age or for other good reasons independently to protect the broken or challenged rights or to realize protsesyosualny powers;
• Art. 20 according to which at identification of violations of the law the prosecutor or his deputy within the competence can appeal to court with zayavleniyami about protection of the rights and legitimate interests of citizens, the states, and also the enterprises and other yuridiyochesky persons.
The similar opinion contains and in Generalization of the Supreme Court of Ukraine from 01.07.07. Practice of consideration by vessels of civil cases in mandative production. In this document on the basis of the analysis of standards of the legislation, in particular, it is noted that the proyokuror has the right to appeal to court with the statement for issue of the order of court, and courts should consider such statements.
How the enterprise can protect itself in a poyodobny situation?
First, the order of court can be challenged in court. For this purpose it is necessary for the enterprise in 10-day term from a moyoment of obtaining the order to submit the application for its cancellation to the relevant court (GPK Art. 104). The court should otmenit the order irrespective of validity of objections of the debtor as existence of the specified statement (by the way, in GPK there are no requirements to its form and a soderzhayoniya) already testifies to disagreement of the debtor with this order, therefore, and about dispute existence.
If the specified term was passed for good reasons, it is possible to appeal to court with a request for its restoration (GPK Art. 73).
Secondly, not to allow similar situations in the future, I recommend to provide accurately in the lease contract procedure of introduction of a rent in a natural form – who and in what terms should receive it. If such duty is assigned to the lessor, and he didn’t receive it in the terms established by the contract, the fault of the enterprise in not introduction of a rent won’t be.
Besides, by drawing up for the prosecutor of the register of lessors to whom the rent isn’t paid, neobxodimo to specify, for what reasons it occurred (for example, because of lessors whom, breaking contract provisions, don’t come behind it). In this case the court won’t regard debt as indisputable, so, can’t take out the order on its collecting.
(On Balans-Agro newspaper materials).