NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of December 18, 1997

According to the petition of Limited liability company "Hairdressing salon "Sonun" about recognition of Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 79, to Items 2 and 3 of Article 84, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 8, 1997 in the claim of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som

Constitutional court of the Kyrgyz Republic in structure: Chairman Bayekova Ch. T., vice-chairman Sutalinov A. A., judges: Dryzhaka P. N., Kenensariyeva Ampere-second., Osmonova K. E., Satybekova S. S., Togoybayev Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

with participation of the court session secretary Kurbanbayev Zh. P.,

parties: the CEO of Limited liability company "Hairdressing salon "Sonun" of Maglelya Tamara Vladimirovna, representative of this society - Zotova Nina Vasilyevna who is acting on the basis of the power of attorney of October 3, 1997 signed general the director of OSOO "Hairdressing salon "Sonun", the representative of the Supreme Arbitration Court of the Kyrgyz Republic - Tyurin Vladimir Ivanovich, the head of department of the analysis and generalization of court practice of the office of the Supreme Arbitration Court of the Kyrgyz Republic which is acting on the basis of the power of attorney of October 29, 1997, 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", article 11 of the Law "About the Constitutional Legal Proceedings of the Kyrgyz Republic", considered in proceeding in open court the petition of Limited liability company "Hairdressing salon "Sonun" about recognition of Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 79to to Items 2 and 3 of Article 84, Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 8, 1997 in the claim of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som.

Having heard the report of the judge Dryzhak P. N., speech of the CEO of Limited liability company "Hairdressing salon "Sonun" of Magleli T. V., the representative of this society - Zotova N. V., the representative of 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 Limited liability company "Hairdressing salon "Sonun" about recognition of Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 79, to Items 2 and 3 of Article 84, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 8, 1997 in the claim of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som arrived on October 6 and 15, 1997.

Limited liability company "the Hairdressing salon "Sonun" brings the following arguments into reasons for the petition.

The Supreme Arbitration Court of the Kyrgyz Republic, having accepted to the production and having considered in essence the above-stated dispute over the first instance, violated Item 2 of article 7 of the Constitution of the Kyrgyz Republic according to which it represents the government only within the powers established by the Constitution of the Kyrgyz Republic and Item 3 of article 79 of the Constitution of the Kyrgyz Republic providing that the organization and procedure for activity of the courts are determined by the law, but not the Supreme Arbitration Court of the Kyrgyz Republic. The Supreme Arbitration Court of the Kyrgyz Republic went beyond the powers, stipulated in Item 3 articles 84 of the Constitution of the Kyrgyz Republic, assigning to the Supreme Arbitration Court of the Kyrgyz Republic only implementation of supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek. Limited liability company "the Hairdressing salon "Sonun" considers that the Supreme Arbitration Court of the Kyrgyz Republic consideration of this case violated constitutional right on judicial protection, the constitutional principles of identical application of the laws to all citizens and about equality of all before the law and court, 38 and 88 Constitutions of the Kyrgyz Republic provided by Articles 15, of 22, of 29,. Asks to recognize Article unconstitutional and inappropriate to Item 2 7, to item 4 of Article 79, to Items 2 and 3 of Article 84, to Item 2 of Article 88 and article 90 of the Constitution of the Kyrgyz Republic the law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of May 8, 1997 in the claim of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som.

In judicial session CEO of Limited liability company "Hairdressing salon "Sonun" of Magleli T. V. and the representative of this society Zotova N. V. supported the petition and asked it to satisfy. Representative of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. did not agree with the petition and asked to leave it without satisfaction.

Constitutional court of the Kyrgyz Republic, having listened to performances of the parties and having discussed their arguments, having researched case papers, considers the petition of Limited liability company "Hairdressing salon "Sonun" subject to satisfaction on the following bases.

Apparently from the provided materials, on March 19, 1997 the First Deputy Chairman of the Supreme Arbitration Court of the Kyrgyz Republic adopted the action for declaration of Limited liability company "Hairdressing salon "Sonun" about collection of the amount of 19828 som from Kanykey LTD Limited liability company and charged its consideration to the judge Akmatov B. Zh.

Decision of the Supreme Arbitration Court of the Kyrgyz Republic (judge Akmatov B. Zh.) of May 8, 1997 claims of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som are left without satisfaction and is specified that it becomes effective after monthly term from the date of its acceptance. In this connection, OSOO "Hairdressing salon "Sonun" appealed on June 6, 1997 this decision in the Supreme Arbitration Court of the Kyrgyz Republic.

Determination of June 20, 1997 the judge of the Supreme Arbitration Court of the Kyrgyz Republic Kozhonova A. A. returned the petition for appeal, referring to the fact that decisions of the Supreme Arbitration Court of the Kyrgyz Republic according to Article 122 of the Arbitral Procedure Code of the Kyrgyz Republic take legal effect from the moment of acceptance and can be appealed in cassation instance. And the writ of appeal OSOO "Hairdressing salon "Sonun" the Supreme Arbitration Court of the Kyrgyz Republic as a part of judges: Rybalkina A. D., Bazarkulova K. K. and Kovalenko G. G. is returned by determination of August 8, 1997 as given with violation of term.

The constitutional court of the Kyrgyz Republic considers that acceptance and consideration of the Kyrgyz Republic by the Supreme Arbitration Court on the first instance of the claim of OSOO "the Hairdressing salon "Sonun" to OSOO "Kanykey LTD" about collection of the amount of 19828 som violates Items 3 and 4 of article 79 of the Constitution of the Kyrgyz Republic providing that the organization and procedure for activity of the courts are determined by the law, and the judge submits only to the Constitution and the law. The law determines procedure for administration of law by economic disputes, so, the Arbitral Procedure Code of the Kyrgyz Republic in Article 19 determined, economic disputes are subordinated to Arbitration Courts of areas and the city of Bishkek, and in Article 20 specifically specified that the Supreme Arbitration Court of the Kyrgyz Republic considers cases on recognition invalid (fully or partially) the substandard acts of the President of the Kyrgyz Republic, General Court and Meeting of national representatives of Jogorku Kenesh of the Kyrgyz Republic, the Government of the Kyrgyz Republic which are not corresponding to the laws and other regulatory legal acts and violating the rights and legitimate interests of the companies.

Contrary to it, the Supreme Arbitration Court of the Kyrgyz Republic accepted to the production and considered on the first instance case, cognizable to Arbitration Court of the city of Bishkek.

According to Article 122 of the Arbitral Procedure Code of the Kyrgyz Republic of the decision of the Supreme Arbitration Court of the Kyrgyz Republic become effective from the moment of their acceptance.

The Supreme Arbitration Court of the Kyrgyz Republic the decision of May 8, 1997 having resolved dispute in defiance of the procedures established by the Law though specifies that it takes legal effect after monthly term from the date of its acceptance, the subsequent actions deprives of OSOO "Hairdressing salon "Sonun" of the right of consideration of its claims to this decision, thereby violates Item 2 of article 88 of the Constitution of the Kyrgyz Republic guaranteeing right of defense at any stage of process of consideration of legal case.

Besides, violations of Item 2 of Article 7 and Item 3 of article 84 of the Constitution of the Kyrgyz Republic according to which the Supreme Arbitration Court of the Kyrgyz Republic can represent and perform the government within the powers established by the Constitution of the Kyrgyz Republic take place and the constitutional powers are conferred to the Supreme Arbitration Court of the Kyrgyz Republic to exercise supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek.

Under the specified circumstances the Constitutional court of the Kyrgyz Republic considers that the law-enforcement practice established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 8, 1997 in the claim of OSOO "Hairdressing salon "Sonun" to OSOO "Kanykey LTD" about collection of the amount of 19828 som is Article unconstitutional and inappropriate to Item 2 7, to Items 3 and 4 of Article 79, to Item 3 of article 84 of the Constitution of the Kyrgyz Republic.

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, of 24, of 25, 29 and 30 Laws "About the Constitutional Legal Proceedings of the Kyrgyz Republic", the Constitutional court of the Kyrgyz Republic

Solved:

1. Recognize Article unconstitutional and inappropriate to Item 2 7, to Items 3 and 4 of Article 79, to Item 3 of article 84 of the Constitution of the Kyrgyz Republic the law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 8, 1997 in the claim of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som.

Satisfy the petition of Limited liability company "Hairdressing salon "Sonun".

2. The decision of the Supreme Arbitration Court of the Kyrgyz Republic of May 8, 1997 in the claim of Limited liability company "Hairdressing salon "Sonun" to Kanykey LTD Limited liability company about collection of the amount of 19828 som is not subject to execution.

3. The final decision, is not subject to appeal, it is obligatory 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", "Erkin Too" and "Our newspaper".

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