RESOLUTION OF THE PLENUM OF SUPREME ECONOMIC COURT OF THE REPUBLIC OF BELARUS

of December 18, 2007 No. 11

About some questions of application by economic courts of the legislation on examination

Plenum of Supreme Economic Court of the Republic of Belarus for the purpose of the correct application by economic courts of the legislation on examination, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, decides to make the following explanations.

1. In case of the solution of question of purpose of examination on cases on the economic (economic) disputes arising from civil and other legal relationship, and also connected with implementation of business and other economic (economic) activity, economic courts it is necessary to be guided by regulations of the Economic Procedure Code of the Republic of Belarus (further - HPK), the Presidential decree of the Republic of Belarus of September 14, 2003 No. 407 "About some measures for enhancement of judicial and expert activities" (The national register of legal acts of the Republic of Belarus, 2003, No. 105, 1/4928; 2004, No. 120, 1/5713; 2012, No. 72, 1/13579) (further - the Decree No. 407), the Presidential decree of the Republic of Belarus of April 22, 2013 No. 202 "About formation of the State committee of judicial examinations of the Republic of Belarus" (The national legal Internet portal of the Republic of Belarus, 25.04. 2013, 1/14233), Regulations on payment procedure and the sizes of the amounts which are subject to payment to the victims, civil claimants and their representatives, witnesses, experts, specialists, translators, the witnesses approved by the resolution of Council of Ministers of the Republic of Belarus of December 30, 2006 No. 1775 (The national register of legal acts of the Republic of Belarus, 2007, No. 6, 5/24478; 2011, No. 7, 5/33143) (further - the Provision), the Instruction about procedure for production of judicial examinations and special researches in "Research Institution of Problems of Criminology, Criminalistics and Judicial Examination of the Ministry of Justice of the Republic of Belarus" research establishment approved by the resolution of the Ministry of Justice of the Republic of Belarus of July 31, 2003 No. 20 (The national register of legal acts of the Republic of Belarus, 2003, No. 91, 8/9858; 2012, No. 51, 8/25386), the Instruction about procedure for production of judicial examinations by persons having special permissions (licenses) for implementation of activities for rendering legal services with indication of constituting licensed service type of activity - judicial and expert activities, the Republic of Belarus approved by the resolution of the Ministry of Justice of August 6, 2007 No. 50 (The national register of legal acts of the Republic of Belarus, 2007, No. 213, 8/17021; 2008, No. 71, 8/18403; 2009, No. 15, 8/20256; 2011, No. 2, 8/23113; No. 56, 8/23640; No. 112, 8/24227; National legal Internet portal of the Republic of Belarus, 06.01. 2013, 8/26725; 23:01. 2013, 8/26815), the Instruction about the organization of conducting complex and commission examinations approved by the resolution of the Ministry of Justice of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, the Ministry of Internal Affairs of the Republic of Belarus, the Ministry of Emergency Situations of the Republic of Belarus, Committee for State Security of the Republic of Belarus, the Ministry of Defence of the Republic of Belarus and the State Customs Committee of the Republic of Belarus of August 13, 2007 No. 52/31/196/69/22/806/89 (The national register of legal acts of the Republic of Belarus, 2007, No. 209, 8/16970), and also other acts of the legislation regulating procedure for appointment and conducting examination.

2. According to part one of article 92 HPK examination is appointed by economic court according to the petition of persons participating in case, or on the initiative for explanation of the questions arising when considering the case requiring special knowledge.

The petition for purpose of examination can be told in economic court of the first either to appellate instance in written or oral form to the announcement by the chairman in judicial session of research of proofs finished (part one of article 187 HPK), and in case of renewal of their research - to the announcement finished additional research of proofs (article 188 HPK). The oral petition for purpose of examination is reflected in the protocol of judicial session.

In the petition for purpose of examination in relation to part two of article 100 HPK the circumstances important for the correct permission of case which can be established during conducting examination, and the approximate list of questions which explanation requires special knowledge are specified.

In the presence of the bases provided by part one of article 92 HPK, the economic court of the first and appeal instances can appoint examination on own initiative in the absence of the corresponding petitions of persons participating in case.

3. The question of purpose of examination according to the petition of persons participating in case or at the initiative of economic court can be solved by economic court of the first instance both in preparatory judicial session, and in case of substantive prosecution.

If need for purpose of examination arises by preparation of case for legal proceedings, the economic court owing to part two of article 173 HPK has the right to announce break in preparatory judicial session for the term of no more than five working days (taking into account adherence to deadline, stipulated in Clause 169 HPK) for refining (representation) of the list of questions which shall be explained when conducting examination, and introduction of the sum of money which is subject to payment to experts into the account of economic court.

If need for purpose of examination arose during legal proceedings, the economic court for the solution of the specified questions has the right to postpone legal proceedings based on article 179 HPK or to announce break in judicial session according to article 186 HPK.

In need of receipt of information on possibility of conducting examination, its cost, carrying out terms, and also the information about the expert to whom conducting examination will be entrusted (surname, name and middle name of the expert, data on its specialty, length of service and post) the economic court sends to expert organization or other persons to whom conducting examination, the corresponding determination about adjournment of legal proceedings or break in judicial session can be entrusted.

In case of impossibility to resolve issue of conducting examination by certain expert organization or faces to which it can be charged by economic court by way of adjournment of legal proceedings or the announcement of break in judicial session the economic court has the right to make the corresponding inquiry in competent authorities and (or) the organizations and to suspend proceeedings according to the paragraph the eighth article 146 HPK.

4. If the sums of money which are subject to payment to the expert are not granted on the time established by economic court into the account of economic court, the economic court has the right to reject the petition for purpose of examination and to consider case on the available proofs.

If the economic court will come to conclusion about purpose of examination on own initiative, and necessary sums of money in time, established by economic court, in pursuance of requirements of article 132 HPK of economic court are not deposited by the parties in equal parts to account, the economic court has the right to appoint examination and depending on the specific facts of the case to collect from the parties the necessary amounts into the corresponding account of economic court in case of removal of determination about purpose of examination or the court decree on case.

In case of impossibility of collection of the necessary amounts into the account of economic court the amount which is due to expert organization (expert) is paid for the account of the money which is in addition received by economic court in case of forced execution on property penalties based on the decision of the manager of means (the chairman of economic court) with further expense recovery of court from (parties) on case.

5. The amount size for payment to the expert who is subject to introduction it is preliminary before purpose of examination to the account of economic court by persons specified in article 132 HPK it is determined by economic court approximate proceeding from the amount of payment specified in the Provision or by results of approval of expert organization.

In case of insufficiency of the money which is previously deposited to account economic court, the necessary amount depending on the specific facts of the case is offered to introduction into the corresponding account of economic court or is collected by economic court.

6. According to provisions of Articles 92, of 276, 277 HPK economic court of appellate instance can appoint examination on own initiative if it comes to conclusion that the economic court of the first instance allows incomplete clarification of the circumstances important for case.

According to the petition of person participating in case, examination can be appointed by economic court of appellate instance in cases when the economic court of the first instance does not consider or unreasonably reject the petition for purpose of examination and also if case is considered in the absence of the applicant of the petition which is not informed properly on time and the venue of judicial session, and the decision of economic court of the first instance is cancelled by economic court of appellate instance on the specified basis.

7. In case of the solution of question of purpose of examination economic courts should determine and state the conclusions on questions:

whether obligatory purpose of examination on the considered dispute (case) is provided by the legislation;

whether really the questions which arose when considering the case require special knowledge;

important for case what circumstances can be established when conducting examination;

whether perhaps receipt of explanation on the questions requiring special knowledge by challenge in judicial session of the specialist.

8. In case of determination of questions which shall be explained when conducting examination it must be kept in mind that points of law and consequence in law of assessment of proofs are within the competence of economic court.

In this connection the questions concerning availability or lack of fault in actions (failure to act) of persons participating in case, fault forms and also other questions concerning legal treatment of the evidence produced by the parties are not subject to permission the expert.

9. Proceeding from nature of the questions which arose when considering the case and requiring special knowledge, the economic court establishes the final list of questions on which expertize shall be carried out. At the same time they can be selected as from the questions provided by persons participating in case and are determined by independently economic court.

10. Physical evidences, documents, objects, samples for comparative research, and also case papers on which judicial examination, the containing data relating to examination subject is made can be objects of expert research.

If object of examination is at the other persons who are not participating in case, economic court, being guided by Articles 27, 101 HPK, resolves issue of reclamation of this object and provision to his expert for examination production.

11. Expertize is carried out by specialists of expert organization at the request of the head of organization or other persons to whom it is charged by economic court (part one of article 93 HPK).

In case of determination of expert organization or the expert to whom conducting examination can be entrusted the economic court should take into account provisions of Item 2 of the Decree No. 407, according to which the public judicial and expert institutions and divisions which list is provided in the specified Item perform the activities without receipt of the corresponding special permissions (licenses).

Conducting examination can be entrusted to other organizations which are not the public judicial and expert institutions and also individual entrepreneurs economic court in the presence at them the special permission (license) for implementation of activities for rendering legal services issued by the Ministry of Justice of the Republic of Belarus with indication of the service constituting the licensed type of activity, judicial and expert activities.

12. In cases when the economic court charges conducting examination to the individual entrepreneur having the corresponding license, or the expertize charged to expert organization is carried out out of expert organization, the expert is invited in judicial session where the economic court proves his identity, specialty, finds out whether there are no bases for its branch, explains to the expert of its right and obligation and on receipt warns him about criminal liability for making obviously false conclusion, for refusal or evasion without valid excuse from execution of the obligations assigned to it.

13. The basis for carrying out by expert organization or the expert of examination is determination of economic court about purpose of examination. The conclusion of any civil agreements in this case is not provided by the legislation.

14. In determination about purpose of examination are specified: the bases for purpose of examination, the name of expert organization, surname, name and the expert's middle name if they are known to economic court, the questions raised before the expert, the materials and documents made available to the expert.

In case of purpose of examination the economic court has the right to establish the term of its carrying out, in view of if necessary terms of conducting examinations established by acts of the legislation. If expertize cannot be carried out at the scheduled time, additional term of conducting examination is subject to written approval of economic court.

15. Together with determination about purpose of examination to expert organization (expert) the research objects specified in determination about purpose of examination go.

At the same time it must be kept in mind that authentic documents are submitted to the order of the expert if object of research are documents, but data which are not containing in them. If object of research are the facts and circumstances stated in written instruments, the economic court has the right to provide to the order of the expert properly verified copies of the relevant documents.

If in determination about purpose of examination obligation to provide objects to expert organization (expert) it is assigned to persons participating in case in determination economic court specifies the term of representation of objects of research in expert organization (expert), and also warns about the responsibility for non-execution of the court decree established by legal acts and about possibility of the termination of conducting examination.

In case of impossibility of submission to expert organization or to the expert of objects for research the economic court in determination about purpose of examination shall specify where there is object of research and who shall provide to the expert (experts) easy access to object and possibility of its research, including carrying out certain work type, aimed at ensuring access of the expert to research object (opening of building constructions, etc.).

16. In case of purpose of examination the economic court has the right to suspend proceeedings on the basis provided by the paragraph the second article 146 HPK.

About suspension of proceeedings the economic court takes out determination which can be appealed according to the procedure, the provided HPK.

Determinations about purpose of examination and about suspension of proceeedings for the purpose of procedural economy can be drawn up by removal of one determination with indication of on possibility of its appeal regarding suspension of proceeedings.

17. HPK is not provided appeal of determination about purpose of examination as separate court decree.

At the same time according to part two of article 216 HPK of objection concerning purpose of examination can be declared in case of appeal of the court decree with which substantive prosecution comes to an end.

In case of suspension of proceeedings in connection with purpose of examination (paragraph two of article 146 HPK) purpose of examination as the basis of suspension of proceeedings is subject to assessment by economic court by consideration of the claim (protest) to determination about suspension of proceeedings.

18. If after removal of determinations the expert according to the paragraph third parts five of article 70 HPK will declare the petition for provision purpose of examination and suspension of proceeedings to it additional materials for making the conclusion, the economic court for consideration according to article 180 HPK of the declared petition resumes proceeedings and in judicial session resolves it in essence.

In case of satisfaction of the petition the economic court takes out determination about the direction of additional materials to the expert if they were provided in judicial session of economic court by persons participating in case or about reclamation of required materials from persons at whom they are, by rules of article 101 HPK, having specified the term and procedure for submission of required materials to the expert in determination, and also having warned about the responsibility for non-execution of the court decree established by legal acts and about possibility of the termination of conducting examination.

After removal of the specified determinations the economic court stops proceeedings.

Determinations about the direction of additional materials to the expert or about reclamation of required materials from persons at whom they are and about suspension of proceeedings can be drawn up by removal of one determination with indication of on possibility of its appeal regarding suspension of proceeedings.

19. In cases when after removal of determination about purpose of examination and suspension of proceeedings from persons participating in case in economic court petitions for acceptance of abandonment of claim, for approval of the voluntary settlement, for leaving of the action for declaration without consideration based on the paragraph of the twelfth of article 151 HPK arrive, the economic court taking into account all facts of the case has the right according to article 147 HPK before receipt of the expert opinion to take out determination about renewal of proceeedings and purpose of legal proceedings in which the arrived petitions are subject to consideration and permission in essence. At the same time the economic court in determination about renewal of proceeedings has the right to specify suspension of production of examination to permission of the specified petitions, in that case determination also goes to expert organization or to the expert. If as a result of permission of the declared petitions need for conducting examination disappeared, the economic court takes out determination about examination cessation of production which sends to expert organization or the expert to which conducting examination is entrusted. The expenses which are actually incurred in that case connected with conducting examination are distributed between the parties by general rules, stipulated in Clause 133 HPK.

20. In case of purpose of complex and commission examinations determination of economic court goes to all expert organizations and other persons to whom conducting such examinations is entrusted.

At the same time in determination about purpose of examination it shall be specified what of judicial and expert organizations, other organizations or which of persons participating in conducting examination is leader, the complete list of objects of research and the materials made available to each of experts is provided, and in case of need it is specified possibility of application when conducting examination of the methods capable to lead to complete or partial destruction of objects or to change of their appearance or the main properties.

21. In case of application of part six of article 92 HPK it must be kept in mind that the economic court has the right to admit the fact for which clarification examination was appointed, established or confuted if after removal of determination about purpose of examination the party litigant refuses participation in conducting examination or makes difficulties to its carrying out.

Non-presentation of questions by the party which shall be explained when conducting examination, not introduction of the sum of money which is subject to payment to the expert into the account of economic court, disagreement of the party with the choice by economic court of expert organization (organization) or the expert are not the bases for application of part six of article 92 HPK.

22. The economic court makes the decision on purpose of examination, determines the final list of questions on which it shall be carried out, the expert organization (organization) or person to whom it will be charged is taken out by determination about purpose of examination (article 92 HPK).

In this connection it must be kept in mind that the expert opinion by results of the expertize which is carried out on the contractual basis at the request of persons participating in case or appointed by consideration of other legal case or in case of production of investigative actions, etc. which is brought into economic court as evidentiary fact (part two of article 83 HPK) cannot be recognized the expert opinion on case in point. Such conclusion can be accepted and researched by economic court as one of written proofs which can confirm or confute the facts which are subject to proof on case in point.

23. The expert opinion has no predefined force for economic court and is subject to research in judicial session and assessment by economic court along with other proofs on case.

In case of need in case of research and assessment of the expert opinion the economic court according to the petition of persons participating in case or has on own initiative the right to call the expert in judicial session for making necessary explanations and the answer to questions of economic court and persons participating in case (part five, the sixth article 94 HPK).

The expert takes the oath which text is signed and stored by it in case papers (article 69 HPK) in judicial session.

24. Additional examination is appointed by economic court in case of insufficient clarity or incompleteness of earlier drawn conclusion. At the same time economic courts should mean that insufficient clarity of the expert opinion can be eliminated by challenge in judicial session of the expert for making necessary explanations and the answer to questions of economic court and persons participating in case (parts five, the sixth article 94 HPK).

In determination about purpose of additional examination it is specified who and on what questions carried out expertize earlier to what conclusions he came what circumstances remained obscure what provisions require additional researches and on what questions it is necessary to receive answers of the expert.

The economic court directs the same materials to additional examination that were researched in case of primary examination. Additional materials can be provided for receipt of answers to questions which were not raised when conducting primary examination.

25. Repeated expertize is carried out in the cases specified in part two of article 95 HPK and is entrusted to other expert or expert organization.

In determination about purpose of repeated examination are specified: circumstances and conclusions of primary examination which raised doubts in their correctness or justification, the information about what materials are acknowledged doubtful in what contradictions between the conclusions of several experts consist or in what abuses of regulations of conducting examination, and also questions which are subject to permission in case of repeated examination consist.

26. In case the questions which arose when considering the case require special knowledge of the field of science, art, the equipment or craft, and the public judicial and expert institutions (divisions) or the organizations and individual entrepreneurs having the corresponding licenses cannot provide conducting examination for the objective reasons (absence of the expert of specific specialty, necessary material and technical resources for conducting examination or special conditions for carrying out researches, etc.), the economic court has the right to cause in judicial session of the specialist for explanation of the questions requiring special knowledge including to charge to it to draw the conclusion on the questions (article 71 HPK) raised by economic court.

Owing to article 71 HPK the economic court can recruit the specialist in case and in other cases if the explanation of the questions connected with consideration of the case requires special knowledge.

As the specialist the person having knowledge of the expert, but who is not given in the procedure established by the legislation authority on conducting examination can appear in economic court.

At the same time it must be kept in mind that owing to article 132 HPK of person, called in the specified Article, shall bring previously into the corresponding account of economic court the sum of money which is subject to payment to the specialist.

If the necessary sum of money in time, established by economic court, in pursuance of requirements of article 132 HPK the parties in equal parts of economic court is not deposited to account, the economic court has the right to charge to the specialist to draw the conclusion on the questions requiring special knowledge and to collect from the parties the necessary amount into the account of economic court in case of pronouncement of the court decree on case.

The conclusion of the specialist, also as well as the expert opinion, belongs to evidentiary facts and is subject to assessment by economic court.

27. Appointment of examination as economic court for carrying out financial analysis and solvency of the debtor on cases on economic insolvency (bankruptcy) in the cases provided by parts four and the fifth Article 43, part two of article 47 of the Law of the Republic of Belarus of July 13, 2012 "About economic insolvency (bankruptcy)" (The national legal Internet portal of the Republic of Belarus, 24.07. 2012, 2/1967), it is made according to HPK and taking into account the features provided by resolutions of the Ministry of Economics of the Republic of Belarus of February 27, 2004 No. 57 "About approval of the Instruction for conducting examination of financial condition and solvency of the organization which is in the procedure of economic insolvency (bankruptcy), and the Instruction for conducting examination of the plan of sanitation of the organization which is in the procedure of economic insolvency (bankruptcy)" (The national register of legal acts of the Republic of Belarus, 2004, No. 44, 8/10682; 2009, No. 162, 8/21107) and of December 4, 2012 No. 107 "About approval of the Instruction about procedure for determination of availability (absence) for signs of false economic insolvency (bankruptcy), deliberate economic insolvency (bankruptcy), concealment of economic insolvency (bankruptcy) or preventing to indemnification to the creditor, and also preparation of expert opinions on these questions" (The national legal Internet portal of the Republic of Belarus, 06.02. 2013, 8/26864).

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