RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of February 15, 2006 No. 3-D12/44

About recognition invalid the agreement and audit opinion, collection of moral harm, profits under the agreement and lost profit

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 27.04.2006 it is refused to open production on review)

The Supreme Economic Court of Ukraine as a part of board of judges:

the chairman is Nevdashenko L. P. judges: Mikhaylyuka M. V.,

Dunayevskoy N. G. having considered in proceeding in open court the writ of appeal of Limited liability company of Promresursa on determination of 10.11.2005 of the Dnipropetrovsk Economic Court of Appeal on case N3/44 of economic court of the Dnipropetrovsk region on the claim of Promresursi LLC to

- Ukrpromresurs LLC

- Auditkapitalinvest Auditing Firm LLC

about recognition invalid the agreement and audit opinion, collection of moral harm, profits under the agreement and lost profit with the participation of agents of the parties:

the claimant - were not

the defendant 1 - were not

the defendant 2 - did not appear

ESTABLISHED:

10.07.2003 the claimant took a legal action with the action for declaration to defendants in which asked to nullify the agreement of 28.03.2002 of N04/03 and to exact from the defendant - Ukrpromresurs LLC 1 517 231, 25 UAH of the caused moral losses, to withdraw in the income of the state of means, received from Ukrpromresurs LLC - 7500, 00 UAH. Also 18.09.2003 the claimant addressed with the petition for attraction as the second defendant of limited liability company "Auditkapitalinvest auditing firm, motivating with the fact that the head of this company signed the agreement N04/03 of 28.03.2002, without having checked power of the person which signed it on behalf of Ukrpromresurs LLC, using not checked materials and certificates of the chief accountant of Ukrpromresurs LLC of Ryabokon O.V., and also using not originals, but copies of documents and did not check their reliability. Besides the claimant specified that the audit opinion of 18.04.2002 does not answer available materials and documents and asked to nullify it. Specifies that the agreement of 28.03.2002 is signed by N04/03 by the malicious agreement between the auditor Goncharova O. I. and chief accountant of Ukrpromresurs LLC of Ryabokon O. V. At the same time the claimant specified the claims in which asked to exact solidary from both defendants in own favor 1 517 231, 25 UAH of moral harm. The petition of the claimant was satisfied with court; to case, in qualities of the defendant-2, the limited liability company "Auditkapitalinvest auditing firm is attracted.

By the decision of economic court of the Dnipropetrovsk region of 09.03.2005 the claim it is refused as the claimant did not prove competent evidences the claims.

The petition for appeal of limited liability company of Promresursa is left by the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.05 without satisfaction, and the decision of economic court of the Dnipropetrovsk region of 09.03.2005 is changed and its substantive provisions in the following edition are stated:

"Regarding claims of Limited liability company of Promresursa, Dnipropetrovsk to Ukrpromresurs Limited liability company, Dnipropetrovsk and to Limited liability company of Auditkapitalinvest Auditing firm, Dnipropetrovsk about recognition invalid audit opinion of 18.04.2002 of proceeedings to stop based on item 1 p.1 the Art. 80 GPK of Ukraine. - to refuse other part of claims." 19.08.05 of Promresursy LLC the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.2005 submitted the application for review on the new revealed circumstances. Also made to 15.08.2005 of Promresursy LLC the writ of appeal about the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.2005.

Proceeedings were stopped by determination of the Dnipropetrovsk Economic Court of Appeal of 19.08.2005 before consideration by the Supreme Economic Court of Ukraine of the writ of appeal of Promresursy LLC on the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.05 16.09.2005. The Supreme Economic Court of Ukraine returned the writ of appeal of Promresursy LLC with the documents attached to it to the complainant, and case in the Dnipropetrovsk Economic Court of Appeal in this connection, 14.10.2005 proceeedings are resumed.

Determination of the Dnipropetrovsk Economic Court of Appeal of 10.11.2005 the statement of Promresursy LLC for review on the new revealed circumstances of the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.2005 on case N3-D 12/44 it is left without satisfaction.

Without agreeing with the specified determination of Appeal Court, the claimant of Promresursy LLC appealed with the writ of appeal to the Supreme Economic Court of Ukraine in which he asks it to cancel, and to send case papers for new trial in Appeal Court, referring to violation of regulations of substantive and procedural law by Appeal Court.

Having checked arguments of the writ of appeal, correctness of application of regulations of substantive and procedural law, the board of judges came to conclusion that the writ of appeal is not subject to satisfaction, proceeding from the following.

As established and specified the Dnipropetrovsk Economic Court of Appeal, the statement for review on the new revealed circumstances of the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.2005 it is motivated that according to the claimant, the new revealed circumstances is that the agreement of 28.03.2002 was signed by N04/03 from Ukrpromresurs LLC based on the false document - the power of attorney of Ryabokon O.V. and with provision by the auditor of fabricated physical evidences.

According to Article 112 GPK of Ukraine economic court can review the judgment made by it which took legal effect, on the new revealed circumstances which have essential value for case and could not be known to the applicant.

Review of the judgment on the new revealed circumstances is separate procedural form of legal procedure which is determined by the legal nature of these circumstances.

The substantive facts on which requirements and objections of the parties, and also other facts which matter for the correct dispute resolution or consideration of the case are based belong to the new revealed circumstances. Necessary signs of the new revealed circumstances are, first, their availability for the period of consideration of the case, secondly, the fact that these circumstances could not be known to the applicant for the period of consideration of the case.

If the new revealed circumstances are connected with identification of the facts, provision by the expert of obviously wrong conclusion which was the basis for the judgment, or obviously incorrect translation of documents or explanations of participants of process, or provision of false documents and so forth, such facts shall be confirmed in the procedure established by the law. Whereas, concerning falsification of documents, the applicant did not provide proofs of criminal prosecution of the citizen Ryabokon of O.V. As for the petition of the claimant for reclamation of the original of the power of attorney issued addressed to Ryabokon O.V., it is rejected by court as in the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.05 assessment is provided as to the disputed agreement, and the fact of issue of the power of attorney.

Besides circumstances to which the claimant refers in the statement for review of the resolution on the new revealed circumstances were known to it for the period of consideration of the case and the corresponding legal treatment when considering the case by Appeal Court was provided to the specified circumstances that is displayed in the text of the resolution of 15.07.2005.

Also are not taken by court into account of the reference of Promresursy LLC to the letter of the arbitration manager of Rudnitsky O.C. N18/4 of 18.10.2005 about recognition of amount of debt as this letter concerns circumstances which take place as of October 18, 2005, and the application for review of the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.05 was submitted 19.08.2005 more, and circumstances which arose later cannot be consideration subject within this reconsideration of the case.

Under such circumstances the board of judges appeal economic to court came to conclusion that about review on the new revealed circumstances it is necessary to refuse allowance of the application, and to leave the resolution of the Dnipropetrovsk Economic Court of Appeal of 15.07.2005 without changes.

The board of judges of the Supreme Economic Court of Ukraine considers that the Economic Court of Appeal gave to the given circumstances proper legal treatment and came to reasonable conclusion.

As for arguments of the writ of appeal, they do not confute the conclusions of court, and, besides, are connected with revaluation of proofs that oversteps the bounds of powers of court of cassation instance.

Therefore and considering that owing to requirements of Art. 111-7 of HPK of Ukraine the cassation instance has no right to establish or consider proved circumstances which were not established in the decision or the resolution of economic court or are rejected by it, to resolve issue of reliability of this or that proof, of benefit of one proofs over others, to collect new proofs or in addition to check them, the board of judges sees no reason for cancellation of the appealed determination that answers case papers and the current legislation.

Being guided by the Art. of Art. 111-5, 111-7, 111-9, 111-10, 111-11 of the Economic Procedure Code of Ukraine, the Supreme Economic Court of Ukraine DECIDED:

To leave determination of the Dnipropetrovsk Economic Court of Appeal of 10.11.2005 on case N3/44 without changes, and the writ of appeal - without satisfaction.

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