of October 31, 2011 No. 20
About some questions of hearing of cases with participation of the commercial organizations and their founders (participants)
Plenum of Supreme Economic Court of the Republic of Belarus for the purpose of ensuring the correct and uniform application by economic courts of the legislation by hearing of cases with participation of the commercial organizations and their founders (participants), 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. Judicial protection of the rights and legitimate interests of the commercial organizations and their founders (participants) is guaranteed by Articles 13, 60 Constitutions of the Republic of Belarus.
The legal status of the commercial organizations is regulated, in particular, by the Civil code of the Republic of Belarus (further - group of companies), the Law of the Republic of Belarus of December 9, 1992 "About economic societies" (Vyarkhochnaga Savet's Vedamastsi of Respubliki Belarus, 1992, No. 35, Art. 552; National register of legal acts of the Republic of Belarus, 2006, No. 18, 2/1197; 2010, No. 183, 2/1720) (further - the Law on economic societies), the Law of the Republic of Belarus of February 18, 1991 "About peasant farm" (Vyarkhochnaga Savet's Vedamastsi of SSR Belaruskay, 1991, No. 12 (14), Art. 125; National register of legal acts of the Republic of Belarus, 2005, No. 122, 2/1141; 2010, No. 170, 2/1709) (further - the Law on peasant farm).
2. Features of legal status of the commercial organizations with foreign investments are regulated by the Investment code of the Republic of Belarus (the daleeinvestitsionny code); banks, non-bank credit and financial organizatsiybankovsky code of the Republic of Belarus; insurance companies, insurance brokers - the Presidential decree of the Republic of Belarus of August 25, 2006 No. 530 "About insurance activity" (The national register of legal acts of the Republic of Belarus, 2006, No. 143, 1/7866; 2010, No. 183, 1/11806); the national associations which are the commercial organizations, the open joint stock companies (далееОАО) created in the course of privatization of the property which is in state-owned property - the legislation for the relevant commercial organizations.
3. According to the paragraph the fifth parts one of Article 47 of the Economic Procedure Code of the Republic of Belarus (further - HPK) hearing of cases belongs to special jurisdiction of economic court:
on disputes between joint-stock company and its shareholders whose consideration judicially is provided by Article part nine 73, part eight of article 78 of the Law on economic societies;
on disputes between limited liability company (further - Ltd company), additional liability company (further - ODO) and their participants whose consideration judicially is provided by Article part seven 98, Article part eight 99, part three of article 103 of the Law on economic societies;
on disputes between economic societies and their participants whose consideration judicially (in court, court) is provided by Article part seven 33, Article part six 41, Article part seven 45, parts nine, the eleventh, twelfth Article 57, part ten of article 58 of the Law on economic societies;
on disputes between economic partnerships and their participants whose consideration judicially is stipulated in Item 2 Articles 69, part two of Item 1 of Article 74, Item 1 of Article 75 of group of companies;
on other disputes between economic societies and partnerships and their participants, except for employment disputes.
Appeal by the former director (CEO) - the member of economic society of the decision of general meeting of members of economic society on the termination of its powers of the director (CEO) when such decision conforms to requirements of the Law on economic societies and other legislation or the charter belongs to employment disputes (the disputes following from employment legal relationship) and (or) does not violate its rights and legitimate interests as member of economic society.
If the decision of general meeting of members of economic society on the termination of powers of the director (CEO) is appealed by the former director (CEO) - the member of economic society on the bases of its acceptance with violation of requirements of the Law on economic societies and other legislation or the charter and (or) the rights and legitimate interests of the claimant as member of economic society, then it put to subordinated economic court.
4. According to the paragraph to the seventh part one of article 47 HPK consideration of other cases connected with implementation of business and other economic (economic) activity in the cases provided by legal acts belongs to special jurisdiction of economic court.
Hearing of cases on the disputes connected with activities of peasant farm belongs to such cases according to article 29 of the Law on peasant farm.
5. On cases with the participation of the commercial organizations and their founders (participants) connected with business and other economic (economic) activity disputes which list contains in part two of article 41 HPK can be considered, to be applied methods of protection of the civil laws, stipulated in Article 11 groups of companies and other legal acts: about change or termination of the foundation agreement; about award to discharge of duty to provide information and (or) to inform of documentation; about award to discharge of duty to make necessary actions for modification of constituent documents and their representations for state registration; about collection of cost of part of property or about award of property in nature; about collection of dividends; about collection of profit; about collection of percent for delay of execution of monetary commitment based on Article 366 of group of companies; about indemnification; about recognition of the debatable transaction invalid and application of effects of its invalidity; about factual determination of negligibility of the transaction and application of effects of its invalidity and others.
6. Cases of special jurisdiction are considered by economic court irrespective of whether are participants of legal relationship from which there were dispute or the requirement, the legal entities, the organizations who are not legal entities, individual entrepreneurs or citizens (part two of article 47 HPK). Can be participants of such legal relationship, in particular:
the citizen - the founder (participant) of the commercial organization, the affiliate of economic society;
the citizen who lost the status of the founder (participant) of the commercial organization, the affiliate of economic society;
heir, legal successor of the founder (participant) of the commercial organization, affiliate of economic society.
7. The dispute which is not connected with business and other economic (economic) activity does not belong to jurisdiction of economic court (Article 39, of 41, 47 HPK), is not subject to consideration in economic court. In that case the economic court refuses adoption of the action for declaration (paragraph two of part one of article 164 HPK).
Disputes with participation are not connected with business and other economic (economic) activity:
the commercial organization and its founder (participant), the affiliate of economic society if the dispute is not connected with activities as the founder (participant) of the commercial organization, the affiliate of economic society and (or) is employment dispute;
non-profit organization (consumer cooperative (housing, building, country, garage and other), partnerships of owners, gardening partnership) and her founder (the participant, the owner of property) if the dispute is connected with activities of non-profit organization and its governing bodies.
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