of February 1, 2013
Court practice on consideration of civil cases about consumer protection (2009 - 2012) (1)
(Extraction)
__________
(1) Extraction from the analysis for printing was prepared the judge of the Supreme Court of Ukraine I.E. Lark and main consultant of management of studying and analysis of court practice S. V. Pavlovsk
According to Art. 42 of the Constitution of Ukraine the state protects the rights of consumers, exercises control of quality and safety of products and all types of service and works, promotes activities of public organizations of consumers.
Social and economic and political transformations which happen in our country development of the market relations, freedom of enterprise, the competition of producers promote market saturation goods of both domestic, and foreign production, to increase in amount of consumption and possibility of more wide choice of goods (works, services). These processes, unfortunately, are followed by filling of the consumer market goods and services of unseemly quality, and also such which do not meet fully requirements and consumer requirements.
Consumer protection perform specially authorized central executive body in the field of consumer protection and its territorial authorities, Council of Ministers of the Autonomous Republic of Crimea (further - the Autonomous Republic of Crimea), local public administrations, bodies and organizations which exercise the state sanitary and epidemiological surveillance, other state bodies, local government bodies.
The powerful place in system of legal remedies of the rights of consumers is taken by judicial protection of the violated right.
The purpose of this analysis is studying of practice of application by courts of the legislation in the solution of cases of the specified category, identification of the existing shortcomings and matters of argument of court practice and the legislation.
The relations between consumers of goods, works and services and producers and sellers of goods, contractors and representatives of services of different patterns of ownership are regulated by the Law of May 12, 1991 No. 1023-XII "About consumer protection" (further - the Law No. 1023-XII). The rights of consumers are established by this Law, and also the mechanism of their protection and basis of realization of state policy in the field of consumer protection is determined.
According to item 22 p.1 of Art. 1 of the Law No. 1023-XII the consumer is physical person which acquires, orders, uses or intends to acquire or order products for the personal needs which are directly not connected with business activity or accomplishment of obligations of hired employee.
Considering specified, judicial consumer protection is performed by general courts on civil procedure rules according to the procedure of claim production in claims of physical persons - consumers of goods, works and services.
The specified conclusion follows also from provisions of Art. 12 of the Economic Procedure Code of Ukraine.
According to the Art. 24, item 9 p.1 the Art. 25, item 10 p.1 Art. 26, item 6 p.1 Art. 28 of the Law No. 1023-XII according to the procedure of civil legal proceedings are considered also claims of public organizations (associations) of consumers; specially authorized central executive body in the field of consumer protection and its territorial authorities in areas, the cities of Kiev and Sevastopol, and in the territory of the Autonomous Republic of Crimea - Autonomous Republic of Crimea executive body in the field of consumer protection; local government bodies.
The Appeal Court of the Dnipropetrovsk region satisfied with determination of December 3, 2008 the petition for appeal of physical Person 1 on determination of Marganetsky city court of the Dnipropetrovsk region of September 18, 2008 about closing of production on civil case in the claim of physical Person 1 to the business owner Litsu 2, of executive committee of Marganetsky city council concerning consumer protection, recognition of actions of the business owner Lits 2, of executive committee of Marganetsky city council illegal and compensation of moral damage.
Closing proceeedings, the local court proved the decision by the fact that as one of defendants is the state body, the dispute shall be considered in administrative production according to item 1 p.1 by Art. 18 of the Code of administrative legal proceedings of Ukraine (further - KAS).
Canceling determination of local court, the Appeal Court correctly considered that according to the text of the action for declaration between physical person, on the one hand, the dispute connected using the Law No. 1023-XII arose both the business owner and executive body of local self-government, with the second. Therefore case is subject to consideration according to the procedure of civil legal proceedings.
According to the procedure of administrative legal proceedings by consideration of the corresponding administrative claims cases against local government bodies and executive bodies which establish criteria and conditions of provision of services (sales of goods) and which can apply measures of administrative influence to violators of the consumer legislation are solved.
On case which was considered by Leninsky district court of Kirovohrad Person 1, including for the benefit of Person 2, the Person 3 addressed with the claim the information and consulting center for work with consumers of electrical energy of JSC Kirovogradoblenergo, territorial representation in the NKRE Kirovohrad area of Ukraine, to the Kirovohrad regional management for consumer protection, to the Kirovohrad regional territorial department of the Antimonopoly Committee of Ukraine, the State inspectorate for control of the prices in the Kirovohrad region. Claimants asked to recognize work of the head of the defendant 1 failure and such which violates their rights, freedoms and legitimate interests, and also to oblige management of JSC Kirovogradoblenergo to relieve of the post the head of the defendant 1; oblige the new head of the defendant 1 to fulfill in a month duties which are provided by the second Section "Tasks and IKTs Functions", oblige management of JSC Kirovogradoblenergo to apologize to claimants for divergence, to recognize work of heads of defendants 2, of 3, of 4, 5 unsatisfactory regarding control and supervision of proper accomplishment by the defendant І regulations.
On contents of requirements claimants appealed divergence as information and consulting center for work with consumers of electrical energy of JSC Kirovogradoblenergo, and divergence of territorial representation in the NKRE Kirovohrad area of Ukraine, the Kirovohrad regional management for consumer protection, the Kirovohrad regional territorial department of the Antimonopoly Committee of Ukraine, the State inspectorate for control of the prices in the Kirovohrad region.
The judge of local court determination of May 19, 2009 refused opening of production. The decision is motivated that requirements of claimants to the information and consulting center for work with consumers of electrical energy of JSC Kirovogradoblenergo are subject to consideration according to the procedure of the Code of civil procedure of Ukraine (further - GPK), and dispute decision regarding requirements to territorial representation in the NKRE Kirovohrad area of Ukraine, to the Kirovohrad regional management for consumer protection, to the Kirovohrad regional territorial department of the Antimonopoly Committee of Ukraine, the State inspectorate for control of the prices in the Kirovohrad region - is carried to competence of administrative court according to the procedure RE:.
As according to the Art. 16 GPK consolidation in one production of requirements which are subject to consideration by rules of different types of legal proceedings is not allowed, it is offered to claimants to separate claims and to take a legal action with the claim to the information and consulting center for work with consumers of electrical energy of JSC Kirovogradoblenergo according to the procedure of civil legal proceedings, and with the claim to territorial representation in the NKRE Kirovohrad area of Ukraine, to the Kirovohrad regional management for consumer protection, to the Kirovohrad regional territorial department of the Antimonopoly Committee of Ukraine, the State inspectorate for control of the prices in the Kirovohrad region about consumer protection - according to the procedure of administrative legal proceedings.
In appeal procedure determination was not appealed.
It is possible to agree with conclusions of the judge in that part that requirements about appeal of divergence of subjects of powers of authority when implementing of imperious managerial functions by them concerning violators of the consumer protection law are subject to consideration according to the procedure of administrative legal proceedings.
In case of illumination of question of jurisdiction it is necessary to draw the attention of judges also to the Law of February 3, 2011 No. 2983-VI "About modification of article 6 of the Law of Ukraine "About reference tribunals" concerning jurisdiction of cases in the field of consumer protection to reference tribunals" according to which cases on financial services are withdrawn from jurisdiction of reference tribunals.
Determination of concepts "financial institution" and "financial service" contain in Articles 1, 4 Laws of July 12, 2001 No. 2664-III "About financial services and state regulation of the markets of financial services" (further - the Law No. 2664-III).
Court practice testifies to neodinight cases of groundless return behind incompetence of cases on consumer protection.
Resolving issue of territorial cognizance, courts shall be guided by regulations of section III of hl. 1 GPK (Article 107 - and to consider 117) that according to the p. 5 of the Art. 110 GPK are granted to the claimant in cases on consumer protection the right at discretion to make the claim: on the location of the defendant, at the registered place of residence or stay of the consumer or in the place of damnification or agreement performance (except for exclusive cognizance).
Dzerzhinsky district court of Kharkiv determination of April 2, 2009 returned the action for declaration on case on the claim of the Person 1 to U.-bank LLC, the third party - the Kharkiv branch U.-bank LLC, about compensation of damage and provided explanation that for dispute decision the claimant needs to appeal to competent court of Kiev (the location of U.-bank LLC) or to Leninsky district court of Kharkiv (in place of registration of the claimant). Leninsky district court of Kharkiv determination of April 16, 2009 returned this action for declaration to the claimant for submission to proper court of Kiev.
The Appeal Court of the Kharkiv region determination of judicial board of trial chamber on civil cases of September 14, 2009 cancelled determination of Leninsky district court of Kharkiv, directed case to this district court for the solution of question of opening of proceeedings as the claimant lives in Leninsky district of Kharkiv and according to provisions of the p. 5 of the Art. 110 GPK appealed with the claim to proper court.
Such conclusion of Appeal Court answers provisions of procedural law as requirements about protection of the rights of the consumer are declared.
Hortitsky district court of Zaporizhia determination of the judge of June 13, 2008 the action for declaration гр. B. to the business owner T. about protection of the rights of the consumer returned to the claimant, having at the same time explained that for the decision of this dispute it is necessary to appeal to competent court in the place of damnification or agreement performance.
Determination in appeal procedure was not appealed.
On this case the claimant based on Art. provisions 109 GPK appealed to Hortitsky district court of Zaporizhia (at the place of residence of the defendant). Returning the application, the judge recognized that provisions of h 5, of the p. 6 of the Art. 110 GPK exclude possibility of submission of the claim for the residence of the defendant.
Conclusion of the judge is wrong as the specified regulations grant to the consumer option, but do not oblige him.
By rules of exclusive cognizance (the Art. 114 GPK) claims which arise concerning real estate are shown on the location of property or its main part, and claims to carriers which arise from transportation agreements of loads, passengers, baggage, mail - on the location of carrier.
The Simferopol district court of the Autonomous Republic of Crimea determination of November 23, 2007 opened production on civil case in the claim of Person 1, of the Person 2 to A-T Airline Ltd about consumer protection, proceeding from the right of claimants to the choice of territorial cognizance according to the p. 5 of the Art. 110 GPK.
The Appeal Court of the Autonomous Republic of Crimea determination of August 11, 2008 cancelled the specified determination of the judge and correctly proved the conclusion, having found from local court abuse of regulations about exclusive cognizance.
Such conclusion of Appeal Court is correct considering the following.
Exclusive cognizance - special type of territorial cognizance which prohibits application of other types of territorial cognizance (general, contractual, alternative or cognizance of the requirements connected among themselves). It is explained by features of cases to which such cognizance extends, and is directed to creating favorable conditions for consideration of the case and accomplishment of the judgment.
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