Topic 9. Writ proceeding. Claim in economic litigation.

1.General characteristic of writ proceeding...................................................................1

2.Statement of claim in economic litigation. Scope and form of a claim. Price of a
claim. Other statements of fact in economic litigation..................................................3
3.The rules of filing a claim...........................................................................................6
4.Preparatory proceeding in economic litigation...........................................................8

1.General characteristic of writ proceeding.

Prescriptive proceedings are an institution that appeared in the economic process after
the entry into force of the new edition of the Economic Procedural Code of Ukraine
on 12.15.2017.
Even at the stage of discussion of the draft Code of Civil Procedure of Ukraine, there
were many discussions among lawyers about whether it is advisable to introduce the
relevant institution in the economic process. Active critics insisted that the innovation
does not correspond to the principles of openness and competition of judicial
proceedings, fears were voiced that injunctive proceedings could become a tool of
abuse and even raider seizures. The reasons for such fears were the specifics of the
recovery procedure on the basis of a court order, since:
consideration of the relevant application is carried out within 5 days from the moment
of its receipt without notifying the applicant and the debtor and without holding a
court hearing (Article 154 of the Code of Civil Procedure of Ukraine);
it is not defined what evidence can be considered as a proper confirmation of the
existence of a monetary debt, so that the demand for its collection can be stated in the
injunctive proceedings;
during consideration of claims in the order of injunctive proceedings, the court does
not consider the merits of the claims declared by the debt collector (Clause 7, Part 1,
Article 155 of the Code of Civil Procedure of Ukraine);
the court order is not subject to appeal in the appellate procedure (Part 3 of Article
154 of the Civil Procedure Code of Ukraine). Proponents of the relevant novel
referred to the positive experience of the existence of similar procedures in European
jurisdictions and emphasized that the new institution is unlikely to become an
instrument of abuse, because the court order:
can be canceled upon the debtor's application submitted within 15 days from the date
of delivery of the court order, which must be considered by the court no later than 2
days after its submission (Part 1, Article 157 of the Code of Civil Procedure of
Ukraine);
can be issued exclusively based on the results of consideration of claims that meet the
following criteria (Article 148 of the Code of Civil Procedure of Ukraine): the claim
for collection of monetary debt arose under a contract concluded in written (including
electronic) form; the amount of the claim does not exceed 100 amounts of the
subsistence minimum for able-bodied persons.
At the same time, the question of what kind of evidence in this case can be considered
a proper confirmation of the existence of a monetary debt remained the most
controversial, because the court has the right to refuse to issue a court order if the
submitted application does not show the emergence or violation of the right to a
monetary claim (Article 152 of the Code of Civil Procedure of Ukraine ). The answer
to this question had to be provided by judicial practice.
After more than 9 months have passed since the entry into force of the new version of
the Code of Criminal Procedure of Ukraine, it is possible to talk about certain trends
based on the results of consideration of the relevant applications of debt collectors. In
particular, the approach, according to which demands for the collection of 3% annual
fines, damages, inflationary losses, are not subject to consideration in order of
injunctive proceedings. Court orders are issued based on the results of consideration
of claims for collection of principal debt.
At the same time, the courts do not satisfy demands for the recovery of 3% of annual
fines, damages, and inflationary losses within the framework of injunctive
proceedings. Refusing to issue orders for this category of claims, the courts
emphasize that they do not meet the requirements of Art. 148 of the Civil Procedure
Code of Ukraine (are not claims for the recovery of monetary debt under a contract
concluded in writing), noting that the applicants can apply for the relevant claims in
the procedure of legal proceedings. As an example, we can cite the decision of the
Kyiv Commercial Court of Appeal dated March 27, 2018 in case No. 910/1002/18
and the decision of the Kyiv Commercial Court dated March 30, 2018 in case No.
910/3640/18.
As for the evidence that can be considered as a proper proof of indebtedness in the
injunctive proceeding, it is currently premature to claim that there is a certain
established approach. When approving applications for the issuance of court orders, in
most cases the courts in the motivational part of the order do not indicate at all what
evidence was provided to confirm the existence of the debt, limiting themselves to the
fact that the relevant application was made by the person who has the right to claim
under the contract, as well as that the amount of the monetary claim, declared for
collection, does not exceed the amount specified in Part 1 of Art. 148 of the Civil
Procedure Code of Ukraine. For example, the court limited itself to such arguments,
satisfying the application for the issuance of a court order in case No. 904/2553/18,
which was considered by the Economic Court of the Dnipropetrovsk region.
At the same time, refusing to grant applications for the issuance of orders, courts
often point out that the applicants did not provide adequate evidence of the
indisputability of the stated claims. However, the reasons from which the court
reached the relevant conclusions are mostly not given in the decisions on refusal to
grant applications for the issuance of court orders. As an example, we can cite the
decision of the Commercial Court of Kyiv dated April 12, 2018 in case No.
910/3807/18. The issuance of the order was refused due to the fact that "the case
materials do not confirm the debtor's undisputed indebtedness under the written
agreement concluded between the parties." However, the court does not justify its
conclusion in any way.
It seems that there is no logical arguments in court orders and decisions on refusal to
grant applications for their issuance will not contribute to the popularization of the
institution of injunctive proceedings as an alternative to a lawsuit. If the criteria for
the indisputability of claims are unclear when applying to court, creditors will prefer
litigation, which will not allow to achieve the main goal of the new institution - to
relieve the courts.
Although the worst fears of critics about the use of injunctive proceedings as a
method of abuse have not yet come true, it is also premature to talk about its
effectiveness. At the same time, how widely the new institution will be used in the
future depends on the courts' formation of a unified approach to determining the
criteria for "undisputedness" of claims.
2.Statement of claim in economic litigation. Scope and form of a claim. Price of a
claim. Other statements of fact in economic litigation.
A statement of claim is a procedural document by means of which the right to apply
to the commercial court is exercised.
Filing a claim is a form of exercising the right to a claim. To file a lawsuit means to
apply to the commercial court with a statement, which must contain a request
addressed to the court to consider the dispute about the right that has arisen.
A lawsuit is defined in legal literature as a claim by a person to protect his or someone
else's right or interest protected by law. A claim is also understood as a claim to the
court (or to the state in the person of the court), and the right to a claim is considered
the right to such a claim.
In disputes arising from economic legal relations, appeals to the economic court are
made in the form of a claim statement.
Procedural science distinguishes the concept of "lawsuit" in the procedural and
material sense. A lawsuit in the procedural sense is a request addressed to the court of
first instance for the protection of one's rights and interests. In this aspect, a lawsuit is
a means of initiating an economic process. A claim in the material sense is the right to
satisfy one's claims.
The elements of the claim are its structural components, which collectively determine
its content. There are two elements of the claim:
a) the subject of the claim;
b) grounds of claim.

The elements of the claim are designed to individualize the claim. The parties to the
lawsuit are something external, and therefore it is not entirely correct to call them an
element. Distinguishing the elements of a lawsuit is important in the matter of
preventing the consideration of identical cases - between the same parties on the same
subject and on the same grounds. Consideration of a case identical to the one already
considered by the court is not allowed. If such a lawsuit from such a dispute is filed in
court, then in accordance with Art. 62 of the Code of Civil Procedure, the commercial
court refuses to accept a claim, if in the proceedings of the commercial court or
another body that resolves a commercial dispute within its competence, there is a case
of a dispute between the same parties, about the same subject on the same grounds, or
there is a decision of these bodies from such a dispute.
In this aspect, it is important to distinguish between the identity of claims and the
identity of disputes. The identity of the lawsuits should be determined by the subject
matter and grounds, which must coincide for a positive resolution of the issue of
identity. The difference between identity of claims and identity of disputes is that
identity of disputes covers parties that are not an element of the claim. However, the
primary importance is the identity of the lawsuits in the presence of the identity of the
parties, since it is in this case that it is impossible to file a repeated lawsuit.
The subject of the lawsuit as a requirement for the protection of a violated or disputed
right or an interest protected by law is a method of protecting this right or interest.
The grounds of the claim are the facts that substantiate the claim for the protection of
a right or legal interest. The grounds of the claim include only legal facts, that is,
those with which the norms of material law connect the emergence, change or
termination of the rights and obligations of the subjects of the disputed material legal
relationship. There are factual and legal (legal) grounds for the claim.

The value of the claim is the value of the claimed property, the money to be
collected, or the value of another right that has a value estimate.
The price of the claim is important primarily for determining the size of the court fee
for filing a claim in court. The price of the claim is determined in the claims by the
claimant independently and in accordance with Art. 54 of the Civil Procedure Code
must be included in the statement of claim.
Part 1 of the article 55 establishes the rules for determining the price of a claim for
recovery of money.
According to the classification of methods of protection of the right established by
Art. 16 of the Civil Code, claims for recovery of money should include:
a) forced fulfillment of the obligation in kind (if the obligation consists in making
calculations);
b) compensation for damages and other methods of compensation for property
damage;
c) compensation for moral (non-property) damage.
In lawsuits for recovery of money, the price of the claim is determined by the amount
recovered.
In lawsuits for claiming property, the price of the claim is determined by the value of
this property. The value of property in claims for property recovery is determined on
the basis of legal documents confirming ownership of property.

If several independent claims are stated in the claim, the price of the claim is
determined by the total amount of all claims.
The price of the claim is expressed in the national currency. According to Article 99
of the Constitution of Ukraine, the currency of Ukraine is the hryvnia. According to
Clause 3.3 of Art. 3 of the Law "On Payment Systems and Transfer of Funds in
Ukraine" 1213 hryvnia as the monetary unit of Ukraine (hryvnia) is the only legal
means of payment in Ukraine, accepted by all individuals and legal entities without
any restrictions throughout the territory of Ukraine for transfers and settlements.
According to Art. 3 of the Decree of the Cabinet of Ministers of Ukraine "On the
System of Currency Regulation and Currency Control" 1214, the currency of Ukraine
is the only legal means of payment on the territory of Ukraine, which is accepted
without restrictions for the payment of any claims and obligations, unless otherwise
provided by this Decree, other acts currency legislation of Ukraine.
If a claim for recovery of foreign currency is filed with the commercial court, the
price of the claim is expressed in foreign currency and in hryvnia1215 in accordance
with the official exchange rate established by the National Bank of Ukraine
3.The rules of filing a claim.
A claim is a written demand of one party to the contract to the other regarding the
restoration or protection of violated rights (fulfilment of an obligation, payment of a
debt, penalties, etc.) arising from the contractual relationship between them.
In simpler terms, a claim is a warning letter about a possible appeal to court in case of
non-fulfillment of the requirements specified in it.
According to Part 1 of Art. 222 of the ГОСПОД Code and Part 2 of Art. 19 of the
Civil Procedure Code, persons who have violated the rights or legitimate interests of
other subjects are obliged to renew them without waiting for a claim or a lawsuit to be
filed. However, in practice, one of the parties often has to resort to restoring violated
rights or interests in exactly this way - using a claim as a legal means of psychological
pressure.
In the event of the need for compensation for damages or the application of other
sanctions, a business entity or other legal entity - a participant in economic relations,
whose rights or legitimate interests have been violated, for the direct settlement of the
dispute with the violator of these rights or interests, has the right to apply to him with
a written claim (clause 2 of Article 222 of the ГОСПОД Code).
According to Part 3 of Art. 222 of the ЕКОНОМІК Code, the claim must state:

 full name and postal details of the applicant of the claim and the person(s) to
whom the claim is presented;
 date of submission and claim number;
  the circumstances on the basis of which the claim was made;
 evidence confirming these circumstances;
 requirements of the applicant with reference to normative acts;
 the amount of the claim and its calculation, if the claim is subject to monetary
assessment;
 payment details of the claimant;
 the list of documents attached to the claim.
Documents confirming the applicant's requirements must be attached in originals or
duly certified copies. At the same time, documents available to the other party may
not be attached to the claim, with an indication of this in its text. A payment request-
order for the amount of the claim can also be added to the claim for the payment of
funds.
It should be noted that the specific list of documents will also depend on the type of
disputed legal relationship and the nature of the claims. Meanwhile, in separate
special regulatory acts, such as the Code of Merchant Shipping, the Air Code, the
Statute of the Railways of Ukraine and some others, the specifics of the appendices to
the claim are determined depending on the specific type of dispute.
The claim must be signed by an official of the institution or its representative. The
claim is sent to the addressee (debtor party) by registered or registered letter or
delivered under signature. In the latter case, a note about receiving a claim is proof of
its receipt, which will be useful if, after all, it is necessary to resolve disputed legal
relations in court.
SUBMISSION OF CLAIM
The term during which a claim must be submitted is not established by law. However,
in the case of the intention to settle the dispute in this way, the passage of the statute
of limitations must be taken into account. We remind that according to Art. 256 of the
Civil Code is a period during which a person can apply to the court with a demand for
the protection of his civil right or interest.
The general statute of limitations is three years, but for certain types of claims, the
law may establish a special statute of limitations - shortened or longer compared to
the general statute of limitations. Therefore, during this period, you need to send a
claim,
Missing the deadline for submitting a claim will result in the loss of the right to legal
protection.
If the debtor party has not satisfied the claim, and the statute of limitations has already
expired, the creditor party can apply for judicial protection, since according to Art.
267 of the Civil Code, an application for the protection of a civil right or interest must
be accepted by the court for consideration, regardless of the expiration of the statute
of limitations. At the same time, the statute of limitations is applied by the court only
upon the statement of the party in the dispute, made before the court renders a
decision. However, in this case, the expiration of the statute of limitations, the
application of which has been declared by the party in the dispute, is a reason to reject
the claim.
It should also be noted that filing a claim does not interrupt the statute of limitations.
Therefore, if the specified period is coming to an end and there is not enough time to
submit a claim and receive an answer, you should immediately contact the court.
Filing a claim will suspend the statute of limitations (Part 2 of Article 264 of the Civil
Code), which will not allow the debtor to avoid liability for non-fulfillment of the
obligation.
4.Preparatory proceeding in economic litigation.
Chapter 3. Preparatory proceedings
Article 177. Tasks and period of preparatory proceedings
1. The tasks of the preparatory proceedings shall be as follows:
1) final determination of the subject of the dispute and the nature of the disputed legal
relations, claims and the composition of the trial participants;
2) clarification of objections to claims;
3) determination of the case circumstances to be established and collection of relevant
evidence
4) the decision on recusals;
5) determination of the procedure for case consideration;
6) committing other actions in order to ensure proper, timely and unimpeded
consideration of the case on the merits.
2. Preparatory proceedings shall begin with the opening of proceedings and end with
the closing of the preparatory hearing.
3. Preparatory proceedings shall be conducted within sixty days from the date when
the proceedings are opened. In exceptional cases, for the proper preparation of the
case for consideration on the merits, this period may be extended by not more than
thirty days at the request of one of the parties or at the initiative of the court.
This stage is the first stage of consideration of the case in the commercial court. At
this stage, the court decides the issue of accepting the claim for consideration and
opening the proceedings in the case, if the claim meets the requirements provided for
by the Code of Civil Procedure of Ukraine. If the statement of claim contains
deficiencies, the court may leave it motionless, return it, or refuse to open
proceedings.
The peculiarity of the opening of proceedings in the case, if the defendant is an
individual who is not an entrepreneur, is that the court needs to receive information
about the place of residence (residence) of the individual-respondent, registered in
accordance with the procedure established by law.
The purpose of this stage is to check the statement of claim for compliance with the
Code of Civil Procedure of Ukraine. Also at this stage, the court determines under
which rules of legal proceedings (general or simplified) the case will be considered;
the date, time and place of the preparatory meeting, if the case will be considered in
the order of general legal proceedings; the result of the resolution of the plaintiff's
statements and motions, which were received together with the statement of claim, if
their resolution does not require a summons of the parties; deadline for the defendant
to file a response to the lawsuit, etc.
Stage of preparatory proceedings. According to Part 1 of Article 177 of the Civil
Procedure Code of Ukraine, the tasks of preparatory proceedings are:
1) final determination of the subject of the dispute and the nature of the disputed legal
relationship, claims and the composition of the participants in the legal process;
2) clarification of objections to claims;
3) determination of the circumstances of the case to be established and collection of
relevant evidence;
4) resolution of objections;
5) determining the order of consideration of the case;
6) taking other actions in order to ensure the correct, timely and unhindered
consideration of the case on its merits.
The preparatory proceedings must be conducted within 60 days from the day of the
opening of the proceedings in the case. In exceptional cases, for the proper
preparation of the case for consideration on the merits, this period may be extended
by no more than 30 days at the request of one of the parties or at the initiative of the
court. The duration of the preparatory proceedings established by the current
legislation seems too long to domestic scientists and practitioners, in connection with
which even when the current version of the Code of Civil Procedure of Ukraine was a
draft, proposals were made to establish that the preparatory proceedings should be
conducted within 35 days from the day of the opening of the proceedings in the case
with the possibility extension of this term for ten days (the term of consideration of
the case remains unchanged)
The stage of preparatory proceedings is characteristic only for general legal
proceedings and is aimed at quality preparation of the case for consideration. Based
on the results of the preparatory meeting, the court issues a decision to leave the claim
without consideration; closure of proceedings in the case; closing the preparatory
proceedings and assigning the case to a trial on the merits. Also, based on the results
of the preparatory proceedings, the court adopts a court decision in case the claim is
recognized by the defendant.