NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of April 17, 2001

According to the petition of Kurulush-Bank joint stock bank for recognition unconstitutional and inappropriate to Item 1 of Article 4, to Item 3 of Article 15, to Article 38, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 7, 2000 on case on the claim of the business owner Vorobyov B. D. to Kurulush-Bank joint stock bank and the Insan-Dayvoo company joint Kyrgyz Korean about recognition invalid the purchase and sale agreement of the pishchekombinat signed on March 29, 2000 between Kurulush-Bank joint-stock commercial bank and the joint Kyrgyz-Korean business "Insan-Dayvoo" and also Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., P.N., Kenensariyev A. S. sudeydryzhaka., Togoybayeva Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Alymkulov M. S., the parties: representatives of Kurulush-Bank joint stock bank Karaulova Larisa Kerimovna and Makeeva Galina Grigoryevna, the acting on the basis of the powers of attorney of December 18, 2000 signed by the chairman of the board of Kurulush-Bank joint stock bank, the representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin Vladimir Ivanovich who is acting on the basis of the power of attorney of January 18, 2001, the signed Chairman of the Supreme Arbitration Court of the Kyrgyz Republic, being guided by article 82 of the Constitution of the Kyrgyz Republic, article 13 of the Law "About the Constitutional Court of the Kyrgyz Republic" and article 11 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", considered in proceeding in open court the petition of Kurulush-Bank joint stock bank for recognition unconstitutional and inappropriate to Item 1 of Article 4, to Item 3 of Article 15, to Article 38, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 7, 2000 on case on the claim of the business owner Vorobyov B. D. to Kurulush-Bank joint stock bank and the Insan-Dayvoo company joint Kyrgyz Korean about recognition invalid the purchase and sale agreement of the pishchekombinat signed on March 29, 2000 between Kurulush-Bank joint-stock commercial bank and the joint Kyrgyz-Korean business "Insan-Dayvoo" and also Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic.

Having heard the report of the judge Esenaliyev K. E., speeches of representatives: joint stock bank "Kurulush-Bank" of Karaulova L. K. and Makeeva G. G., the Supreme Arbitration Court of the Kyrgyz Republic - Tyurina V. I., having researched case papers, the Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of Kurulush-Bank joint stock bank for recognition unconstitutional and inappropriate to Item 1 of Article 4, to Item 3 of Article 15, to Article 38, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 7, 2000 on case on the claim of the business owner Vorobyov B. D. to Kurulush-Bank joint stock bank and the Insan-Dayvoo company joint Kyrgyz Korean about recognition invalid the purchase and sale agreement of the pishchekombinat signed on March 29, 2000 between Kurulush-Bank joint-stock commercial bank and the joint Kyrgyz-Korean business "Insan-Dayvoo" and also Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic arrived on December 22, 2000.

The following arguments are given to reasons for the petition. By the decision of Arbitration Court of the city of Bishkek of May 3, 2000 it is refused satisfaction of the claim of the business owner Vorobyov B. D. for recognition invalid the purchase and sale agreement of the pishchekombinat located in the village Military Antonovka of the Sokuluksky district concluded on March 29, 2000 between Kurulush-Bank joint-stock commercial bank and the joint Kyrgyz-Korean business "Insan-Dayvoo". This judgment is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 22, 2000 without change.

The Supreme Arbitration Court of the Kyrgyz Republic, having considered case according to the procedure of supervision on Vorobyov B. D. claim, the resolution of November 7, 2000 cancelled the decision and the resolution of appellate instance of Arbitration Court of the city of Bishkek and being guided by Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic made the new decision on satisfaction of the claim of Vorobyov B. D. on recognition of the above-named purchase and sale agreement with invalid on case.

Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic and the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 7, 2000 are unconstitutional, contradict Item 1 of Article 4, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic. The decision of the Supreme Arbitration Court of the Kyrgyz Republic, being final and unliable to appeal, violates shareholder rights on judgment appeal, and also breaks the constitutional principles of justice general and single for all courts and judges that entailed violation of shareholder rights on property, on providing with justice and judicial protection, guaranteed by articles 15 and 38 of the Constitution of the Kyrgyz Republic.

In judicial session representatives of Kurulush-Bank joint stock bank of Karaulov L. K. and Makeev G. G. ask to satisfy the petition.

Representative of the Supreme Arbitration Court Tyurin V. I., without having agreed with petition arguments, asks the constitutional legal proceedings to stop on this case.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers the petition subject to satisfaction on the following bases.

From the provided materials it is visible that by the decision of Arbitration Court of the city of Bishkek of May 3, 2000 it is refused the claim of the business owner Vorobyov B. D. for recognition invalid the purchase and sale agreement of pishchekombinat, at the address: the village Military Antonovka of the Sokuluksky district concluded on March 29, 2000 between Kurulush-Bank joint-stock commercial bank and the joint Kyrgyz-Korean business "Insan-Dayvoo". Satisfied the claim of the joint Kyrgyz-Korean business "Insan-Dayvoo" for reclamation of property from others adverse possession of the business owner Vorobyov B. D., having obliged him to return пищекомбинат to the Insan-Dayvoo company joint Kyrgyz Korean.

This judgment is left by the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 22, 2000 without change.

The Supreme Arbitration Court of the Kyrgyz Republic, having considered case according to the procedure of supervision on the claim of the business owner Vorobyov B. D., the resolution of November 7, 2000 cancelled the above-stated court decrees of Arbitration Court of the city of Bishkek and on case made the new decision, nullified the agreement signed on March 29, 2000 between Kurulush-Bank joint-stock commercial bank and the joint Kyrgyz-Korean business "Insan-Dayvoo" about purchase and sale of pishchekombinat. Refused satisfaction of the counter action of the joint Kyrgyz-Korean business "Insan-Dayvoo" about reclamation of pishchekombinat from others adverse possession.

In case of adoption of the resolution of November 7, 2000 the Supreme Arbitration Court of the Kyrgyz Republic was guided by Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic granting it the right to cancel decisions of subordinate courts and to make the new decision on the substance of dispute, without submitting the case on new trial.

Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic by which the Supreme Arbitration Court of the Kyrgyz Republic in case of adoption of the resolution of November 7, 2000 on the new decision on this case was guided is acknowledged as the solution of the Constitutional court of the Kyrgyz Republic of December 4, 2000 according to the petition of Kyrgyzpotrebsoyuz to the unconstitutional and contradicting Items 2 of Article 38 and Item 2 of article 88 of the Constitution of the Kyrgyz Republic and its action is cancelled.

Under the specified circumstances, the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by the Supreme Arbitration Court of the Kyrgyz Republic the resolution of November 7, 2000, being guided by Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic is unconstitutional, contradicts Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic providing that protection is not violated right of person at any stage of process of consideration of legal case, and the principles of justice established by the Constitution are general and single for all courts and judges in the Kyrgyz Republic and violates constitutional rights of shareholders of Kurulush-Bank joint stock bank on providing with justice and judicial protection of all rights and freedoms, fixed by the Constitution and the laws, guaranteed by item 4 of Article 15 and Item 2 of article 38 of the Constitution of the Kyrgyz Republic.

According to part 4 of article 22 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic" the constitutional legal proceedings initiated in part of recognition unconstitutional Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic are subject to the termination.

Based on stated and being guided by the subitem 8 of Item 3 of article 82 of the Constitution of the Kyrgyz Republic, articles 13 and 14 of the Law "About the Constitutional Court of the Kyrgyz Republic", articles 10, of 11, of 13, of 14, part 4 Articles 22, Articles 24, of 25, 29 and 30 Laws "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic

DECIDED:

1. Recognize Article 88 unconstitutional and inappropriate to Item 2 and article 90 of the Constitution of the Kyrgyz Republic the law-enforcement practice established by the resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 7, 2000 on case on the claim of the business owner Vorobyov B. D. to Kurulush-Bank joint stock bank and the Insan-Dayvoo company joint Kyrgyz Korean about recognition invalid the purchase and sale agreement of the pishchekombinat located in the village Military Antonovka of the Sokuluksky district concluded on March 29, 2000 between Kurulush-Bank joint stock bank and the joint Kyrgyz-Korean business "Insan-Dayvoo".

Stop the constitutional legal proceedings initiated in part of recognition unconstitutional Item 3 of Article 158 of the Arbitral Procedure Code of the Kyrgyz Republic.

Satisfy the petition of Kurulush-Bank joint stock bank.

2. The resolution of the Supreme Arbitration Court of the Kyrgyz Republic of November 7, 2000 about cancellation of the decision of Arbitration Court of the city of Bishkek of May 3, 2000, the resolution of appellate instance of Arbitration Court of the city of Bishkek of June 22, 2000 in the matter of No. B01-269/2000-S4pr is not subject to execution. and adoption of the new decision, about recognition invalid the agreement of the March 29, 2000 signed between Kurulush-Bank joint stock bank and Insan-Dayvoo joint business about purchase and sale of pishchekombinat with a total area of 12351 sq.m with the equipment according to the list, at the address: the village Military Antonovka, Ulitsa Pionerskaya, with area of the adjacent parcel of land, according to inventory case, about application of effects of recognition of the transaction invalid, reduction of agreement parties of March 29, 2000 in initial provision: to transfer by Kurulush-Bank joint stock bank of 16 thousand US dollars of JV Insan-Dayvoo, the states of emergency received under the agreement of March 29, 2000 to Vorobyov B. D., about refusal in satisfaction of the counter action of JV Insan-Dayvoo about reclamation from others adverse possession of pishchekombinat, about collection for benefit of Vorobyov B. D. state of emergency with JSB Kurulush-Bank of 1750 som, with JV Insan-Dayvoo of 2750 som of the amount of the state fee.

3. The final decision, is not subject to appeal. Surely to execution by all state bodies, officials and citizens.

4. The decision to publish in "Sheets of Jogorku Kenesh of the Kyrgyz Republic", newspapers: "Tuusu's Kyrgyz", "Word of Kyrgyzstan" and "Erkin Too".

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