On January 30, the Supreme Court of Ukraine will consider a cassation appeal regarding the high-profile case of illegal resale and legalization of property rights to several companies belonging to the public organization "CZI".
After a two-year trial, on November 21, 2023, the Northern Court of Appeal of Kyiv overturned the decision of the Commercial Court, by which the property of "TZI" remained with the new "owners". The decision marked a turning point in a long legal battle.
But despite the appellate court's decision, opponents of the CPI continue to use various legal maneuvers to drag out the process.
THE ESSENCE OF THE SCHEME
In December 2021, the Anti-Raiders Commission of the Ministry of Justice of Ukraine recognized the actions of notaries who participated in the resale and further legalization of the property of the CZI. illegal and the Ministry of Justice canceled all these agreements by Orders No. 4677–5 and No. 4191–5.
However, the opposite party immediately appealed to the courts with lawsuits challenging the Order of the Ministry of Justice. Lawsuits were considered by judges of the Economic Court of Kyiv Serhiy Vasyliovych Stasiuk and Oleksandr Vasyliovych Kotkov.who first imposed pre-trial arrests on the disputed property rights, and then made similar decisions on the cancellation of the Orders of the Ministry of Justice.
The main basis for such decisions made by the judges was a lawsuit of some kindYulia Zarichanskato the Primorsky District Court of Odesa.
It was served evenly the day before the meeting The anti-raider commission, which considered the complaint of the "Center for the Protection of the Disabled" against the actions of the raiders. In it, the roommate of Serhiy Durach, Yuliya Zarichanska, demanded to recognize the fact of cohabitation with a "civilian" husband, and now she denied the resale of the property of "CZI" by this roommate.
In her lawsuit, Yuliya Zarichanska claimed that she and Serhiy Durach had been running a joint household since 2000, living together, therefore the company, whose owner is listed as Durach, is their jointly acquired property. And allegedly, all legal actions taken by him on behalf of the company were illegal without the legal consent of the spouses. (Exactly this matter was dealt with in one of ours previous materials).
Despite the fact that Zarichanska's lawsuit is not directly related to the implementation of the Orders of the Ministry of Justice, they are trying to combine them into one.
The fact is that according to the letter of the law, the Ministry of Justice cannot consider applications for cancellation of illegal registration actions, if there is information about a court case between the same parties and under the same circumstances. This norm is enshrined in p. 4 h. 8 of the Law of Ukraine "On state registration of rights to real estate and their encumbrances".
ARGUMENTS OF THE MINISTER
The lawyers of "CZI" point out that such a situation is an example of a systemic problem in Ukrainian judicial practice, where such bogus lawsuits are often used to "destroy" high-profile cases.
«A family dispute was initiated between a roommate and a roommate, because of this lawsuit, "CZI" was deprived of its property and cannot even apply to the Ministry of Justice or to the court, because this lawsuit exists. This is a classic example of creating an artificial legal dispute - with the aim of depriving the injured party of even the opportunity to defend their rights", he declares lawyer Oleksandr Yefimov.
The artificiality of Zarichanska's claim confirmed by the Ministry of Justice and the conclusions of an independent examination.
In the documents submitted to the appeals court, the Ministry of Justice consistently sets out its position. The Ministry proves that Zarichanska's lawsuit not identical at all to the complaint from "CZI", which was considered by the Anti-Raider Commission of the Ministry of Justice, applies to other people and circumstances, and therefore, Order No. 4677/5 was legally issued and enforceable.
Ministry ofconsiders the conclusions of the court of first instance regarding the existence of a legal dispute between the parties, on the same subjects and grounds, to be erroneous, since the legal relationship in court case No. 522/23860/21, which was taken into account by the court of first instance, is not the same legal relationship that was considered in the complaint third party, they have different legal grounds, different circumstances, the Primorsky District Court of the city of Odesa investigated evidence of different content."
EXAMINATION CONCLUSIONS
The lawyers of the Central Administrative Court have the "Conclusion of the scientific and legal examination on the application of the analogy of the law in the order of cancellation of registration actions by the Ministry of Justice of Ukraine and its territorial bodies" "NISE-EXPERTISE", dated 4.01.2024. (This document is at the disposal of the editorial office of ElitExpert).
Experts note that:
- Yu. Zarichanska's lawsuit was filed against S. Durach and a number of enterprises, notaries and registrars.
The complaint of "CZI" was submitted to the Anti-Raider Commission of the Ministry of Justice.
2) Zarichanska's lawsuit relates to establishing the fact of living as a single family without registering a marriage, invalidating contracts and acts made during living as a single family without registering a marriage.
The complaint to the Anti-Raider Commission of the Ministry of Justice concerns the cancellation of the actions of state registrars.
3) Grounds for filing a lawsuit by Zarichanska - establishing the fact of living in the same family with S. Durach.
Grounds for submitting a complaint to "CZI" - illegality of registration actions.
Visnovok: and the grounds, and the subject of the lawsuit, and the parties to the dispute are different.
In this independent examination, signed by a doctor of legal sciences, professor, member of the Scientific Advisory Council at the Supreme Court, sums up what «A lawsuit filed by a third party (Yu. Zarichanska — ed.), which did not arise between the same parties on the same subject and grounds as the complaint filed by the applicant (TZI), taking into account that the applicant was involved in the said litigation as a defendant in the case in the context of Clause 3, Part 6 of Art. 34 of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations" dated May 15, 2003 No. 755-IV and clauses 5,6 of the Procedure for Reviewing Complaints on Decisions, Actions or Inaction of the State Registrar, Subjects of State of registration, territorial bodies of the Ministry of Justice", approved by the resolution of the Cabinet of Ministers of Ukraine dated December 25, 2015 No. 1128".
Whether the court will take these arguments into account will become clear on January 30, at the open hearing of the cassation appeal.
