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Legal news in Ukraine: creation of new courts, the law on the creation of an anticorruption court, the entry into force of the Law on limited liability companies and changes to the Law on state registration

24.06.2018 / 11:11
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Legal news in Ukraine: creation of new courts, the law on the creation of an anticorruption court, the entry into force of the Law on limited liability companies and changes to the Law on state registration

The reorganization of the courts begins

New courts, which should be formed in accordance with the President's decrees, adopted at the end of 2017, began to be registered as legal entities.

Thus, the Southwest Economic Court of Appeal in the district of appeal, which will include Mykolaiv, Odesa and Kherson regions, with a seat in the city of Odessa, was the first to be registered.

Also, the First Appellate Administrative Court has been registered in the district of appeal, which includes Donetsk and Luhansk regions, with locations in the cities of Donetsk and Kramatorsk, Donetsk region.

The Seventeenth Administrative Court of Appeal is registered in the district of appeal, which includes Vinnytsia, Zhytomyr, Khmelnytsky and Chernivtsi regions, with a seat in the city of Vinnytsia.

In addition, the Volynsky Court of Appeal, the Chernivtsi Court of Appeal, the Odessa Regional Commercial Court and the Fifth Circuit Court of Kyiv passed the registration.

At the same time, the liquidated courts will cease to administer justice from the date of publication in the newspaper "Holos Ukrainy" of the report of heads of newly formed courts on the commencement of their work.

Meanwhile, the State Judicial Administration appointed temporary agents of the new appellate and local economic courts.

Recall that the decrees eliminate 117 district courts in cities of regional significance and create 50 district, create 205 district courts. It is planned to liquidate regional appellate courts and create appellate courts in regions. 

Also, appeals administrative and commercial courts are subject to liquidation, and instead appeals administrative courts in regions are created.

The law on the creation of an anticorruption court was adopted

The Verkhovna Rada adopted the Law "On the Establishment of the Supreme Anticorruption Court". The law provides for the establishment of the Supreme Anticorruption Court.

According to the Law, the location, territorial jurisdiction and the status of the Supreme Anticorruption Court are determined by the Law of Ukraine "On the Highest Anti-Corruption Court".

The Higher Anticorruption Court will be the permanent high-level specialized court in the Ukrainian judicial system with its seat in Kyiv.

Territorial jurisdiction (jurisdiction) of the Supreme Anticorruption Court will extend to the entire territory of Ukraine.

The Supreme Anticorruption Court should be formed by the summer of 2019: to announce and hold a competition for the positions of judges of the Appeals Chamber of the Supreme Anticorruption Court and the positions of other judges of the Supreme Anticorruption Court, according to the results of the competition, appoint the judges of the Supreme Anticorruption Court.

The Supreme Anticorruption Court will begin work on the condition of appointment of at least 35 judges of the Supreme Anticorruption Court according to the results of the contest, including at least ten of which should be the judges of the Appeals Chamber of the Supreme Anticorruption Court.

The Law on limited liability companies came into force

On June 17, 2018, the Law of Ukraine No. 2275-VIII "On Companies with Limited and Additional Liability" came into force.

In accordance with its provisions, the Law enters into force three months after its publication, that is, on June 17, 2018, in addition to part two of Article 23 of the Law on the transfer of the share of limited liability companies to the heir, which takes effect one year after the date of entry into force of this Law.

Thus, since June 17, the Law of Ukraine "On Business Associations" has expired in the part concerning the limited liability companies and the companies with additional liability.

The main innovations of the Law are that the number of participants in the limited liability companies is not limited. Introducing a new corporate instrument for Ukraine, known internationally under the name of "shareholder agreement". The conclusion of a corporate agreement will provide participants of limited liability companies with a significant amount of space for settling their relations through contracts, noting that it concerns the exercise of the powers of the participants. The conflict between the right of a participant to freely use his or her voice and the need to ensure the fulfillment of obligations under the contract is proposed to be resolved by establishing an opportunity to ensure that the obligations under such contracts are enforced. The requirement for a repayment of a contract should reduce the risks of seizing control of the company and the conspiracy of individual groups of participants against others. Participants - parties to such an agreement, are free to independently determine the period of its validity.

According to the law, information on the size of the authorized capital and the list of members of the company is excluded from the list of information subject to mandatory consolidation in the statute. Instead of including information about the authorized capital and participants in the statute, the project provides for the display of this information in the Unified State Register and clear rules protecting the rights of all interested parties. Also, the charter will not need to indicate the location of limited liability company.

The law establishes the general rule for depositors' contributions by the parties not later than 6 months from the date of the state registration of the partnership. The law provides for a radical improvement of the mechanism for the exclusion of a participant from a partnership - the exclusion of a defective participant is carried out in court. Participants of the limited liability company, whose cost of shares in aggregate amounts to at least 10 percent of the authorized capital of the limited liability company, will have the right to apply to the court with a request to exclude a participant from the limited liability company in court, if the actions or inaction of the participant make it impossible for the company to operate or significantly hinder it. It is also foreseen to indicate in the charter and other grounds for exclusion.

The Law stipulates that during the year from the day of its entry into force, that is, until June 17, 2019, the provisions of the charter of a limited liability company, an additional liability partnership that are not in compliance with this Law, are in force in the part corresponding to the legislation as of the date of entry this Law. This paragraph does not apply after the amendment of the charter of a limited liability company, an additional liability partnership.

The Law on State Registration has been amended

The Law "On Companies with Limited and Additional Liability", which entered into force on June 17, also introduced amendments to the Law "On state registration of legal entities, physical persons entrepreneurs and public forming".

The changes set the list of documents necessary for registration of changes in the authorized capital of limited liability company.

Thus, for the state registration of changes to the information on the size of the authorized capital, the size of the shares in the authorized capital or the composition of participants in a limited liability company or a company with additional liability, the following documents are submitted:

1) a statement on the state registration of changes to this information;

2) a document on payment of the administrative fee;

3) one of the following relevant documents:

a) the decision of the general meeting of the members of the company on determining the size of the authorized capital and the size of the participants' shares;

b) the decision of the general meeting of the members of the company to exclude a participant from the partnership;

c) application for membership of the partnership;

d) an application for the withdrawal from the partnership;

e) act of acceptance-transfer of a share (part of the share) in the authorized capital of the company;

e) a judicial decision which has become valid, determining the size of the authorized capital of the company and the size of the shares of the members of the partnership;

f) a judicial decision that has come into force, with a view to recovering from (the return from possession) of the respondent a share (part of a share) in the authorized capital of the company.

On the day of the state registration of changes to the information of the Unified State Register related to the change in the composition of the members of a limited liability company or an additional liability or a change in the size of their shares, the entity of state registration shall issue (send by post with the description of the investment) an extract from the Uniform State the register to the applicant, the partnership, the persons who were mentioned in this register as members of the company before the registration action, and those who are listed in this register as members of the partnership after rovedennya registration action. If the subject of the state registration is known to the e-mail address of the persons to whom this statement is sent, he shall also send a copy of the extract to the indicated persons by e-mail on the same day. "

If in the course of consideration of the application and documents for state registration by the state registrar the existence of other packages of documents for state registration registered in the Unified State Register of the same entity is established, the following package of documents is considered after the state registration or suspension of consideration or refusal in such registration on the basis of the application and documents registered in the Uniform State Register before.

The Constitutional Court concluded in the case about the inviolability of the people's deputies

The Constitutional Court of Ukraine issued a conclusion in the case on the constitutional petitions of the Verkhovna Rada of Ukraine on the compliance of the draft law No. 7203 on amendments to Article 80 of the Constitution of Ukraine on the immunity of people's deputies of Ukraine to the requirements of Articles 157 and 158 of the Constitution of Ukraine. This is stated on the court site.

The bill proposes to amend Article 80 of the Constitution of Ukraine, stating it as follows: Article 80. Deputies of Ukraine are not legally liable for the results of voting or statements made in Parliament and its bodies, with the exception of liability for insult or defamation.

The Constitutional Court of Ukraine has indicated that the abolition of immunity of people's deputies of Ukraine relates only to their special status and does not affect the content of constitutional rights and freedoms of man and citizen, and therefore does not contradict the requirements of Article 157 of the Constitution of Ukraine.

Consequently, the Constitutional Court of Ukraine found that it complies with the requirements of Articles 157 and 158 of the Constitution of Ukraine, a bill amending the Article 80 of the Constitution of Ukraine (regarding the immunity of MPs of Ukraine) (Reg. No. 7203).

The conclusion of the Constitutional Court of Ukraine is binding, final and non-objectionable.

The Supreme Court indicated that the settlement agreement was not a civil law contract

The Court of Cassation Economic Court in the Supreme Court has unchanged the decision of the courts of the previous instances in the case of invalidation of the transaction.

A local economic court upheld the Resolution of the appellate court, the claim is denied, and the proceedings of the cancellation decision Economic Court in another case, which approved these agreements, suspended under paragraph. 1 h. 1 tbsp. 80 of the Code of Civil Procedure of Ukraine (as amended, effective until 15.12.2017). Accepted lawsuits regarding refusal to satisfy claims are motivated by the fact that a settlement agreement can not be regarded as a contract in civil law and, accordingly, can not be declared invalid in the proceeding. In the part of the termination of proceedings, the court acts adopted in the case were motivated by the fact that the dispute is not subject to a ruling by commercial courts in a court of law.

One way of resolving a commercial dispute is a world agreement between the parties, which may only relate to the rights and obligations of the parties in relation to the subject of the claim. The peace agreement is signed by the persons authorized to represent the parties in the economic court.

The decision on approval of the settlement agreement in the resolution of detail and clearly sets out the terms and noted the termination of the proceedings, as well as address issues related costs in the case.

The court's approval of a settlement agreement with simultaneous termination of proceedings in the case is one-act (inseparable) procedural action and can not be considered as two separate acts - separately for the approval of the settlement agreement and for the termination of proceedings.

Consequently, the world agreement can not be considered as a contract in civil law and can be declared void in the proceeding, since the procedure for its conclusion and approval is regulated by the relevant provisions of the Civil Code of Ukraine.

Considering the relevant legal requirements and subject to prescribed circumstances the courts previous instances, finding that: a settlement agreement can not be regarded as a contract of civil-legal sense and recognize invalid action proceedings as the procedure for concluding and approving regulated by the relevant provisions of the EPC of Ukraine ; the requirements of the EPC of Ukraine provides for the right party to challenge the decision Economic Court approving the settlement agreement and provided the right to appeal to the court to canceling the relevant decisions in other proceedings - came concluding to dismiss the claims of annulment of the transaction, which is entitled "settlement agreement at the stage of execution", and the termination of the proceedings of demands to cancel the decision of the economic court in another case, which approved these agreements.

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