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ЮРИДИЧЕСКИЕ НАУКИ
REVIEW OF THE PROCEDURAL NORMS ABOUT THE JURISDICTION OF ECONOMIC CASES IN THE ECONOMIC PROCEDURAL LEGISLATION OF THE REPUBLIC OF UZBEKISTAN Salimova I.M. Email: [email protected]
Salimova Iroda Mamayusufovna - Doctoral Candidate, CIVIL PROCEDURAL AND ECONOMIC PROCEDURAL LAW DEPARTMENT, TASHKENT STATE UNIVERSITY OF LAW, TASHKENT, REPUBLIC OF UZBEKISTAN
Abstract: this article discusses the procedural rules relating to cases under the jurisdiction of economic courts. In order to implement judicial reforms and improve the legal framework in the field of economic procedural legislation, on January 25, 2018, the Economic Procedure Code of the Republic of Uzbekistan was adopted. The new procedural code provides for new procedural rules regarding the jurisdiction of cases to economic courts in connection with the formation of an administrative court and the creation of an inter-district, district (city) economic court, which is in charge of hearing cases in the first instance.
Keywords: jurisdiction, economic cases, economic courts, establishing legal facts, bankruptcy, arbitration proceedings, corporate disputes, foreign courts and arbitration.
ОБЗОР ПРОЦЕССУАЛЬНЫХ НОРМ О ПОДВЕДОМСТВЕННОСТИ ЭКОНОМИЧЕСКИХ ДЕЛ В ЭКОНОМИЧЕСКОМ ПРОЦЕССУАЛЬНОМ ЗАКОНОДАТЕЛЬСТВЕ РЕСПУБЛИКИ УЗБЕКИСТАН Салимова И.М.
Салимова Ирода Мамаюсуфовна — докторант, кафедра гражданского процессуального и экономического процессуального права, Ташкентский государственный юридический университет, г. Ташкент, Республика Узбекистан
Аннотация: в данной статье рассматриваются процессуальные нормы, касающиеся дел подведомственных экономическим судам. В целях реализации судебных реформ и совершенствования правовых основ в сфере экономического процессуального законодательства 25 января 2018 года был принят Экономический процессуальный кодекс Республики Узбекистан. Новый процессуальный кодекс предусматривает новые процессуальные нормы касательно подведомственности дел экономическим судам в связи с формированием административного суда и созданием межрайонного, районного (городского) экономического суда, которым подведомственно рассмотрение дел в первой инстанции. Ключевые слова: подведомственность, экономические дела, экономические суды, установления юридических фактов, банкротство, третейское разбирательства, корпоративные споры, иностранные суды и арбитраж.
UDC 347.9
The institution of jurisdiction in the most general terms determines the possibility of citizens and legal entities to apply for the protection of their rights to one or another body of the state's jurisdictional system. The theoretical and legislative elaboration of this institution ensures the effective functioning of this system, and hence the proper and timely protection of the rights of organizations and citizens [1]. Jurisdiction is the definition of the level of the judicial system, which, in accordance with the legislation, must consider a certain category of cases [2]. Jurisdiction in the modern meaning of this concept is defined as a range of disputes on law and other substantive issues, the resolution of which is related to the jurisdiction of various jurisdictional bodies[3]. January 25, 2018 was to adopt a new Economic Procedural Code of the Republic of Uzbekistan [4] (hereinafter referred to as EPC RUz). The EPC of the Republic of Uzbekistan, consisting of 5 sections, 37 chapters and 347 articles, provides for the improvement of the procedure for the consideration of cases in economic courts, eliminating some of the problems in legislation and judicial practice. Also, the new EPC RUz established new procedural rules regarding the jurisdiction of cases to economic courts in connection with the formation of an administrative court and the creation of an inter-district, district (city)
economic court, which is in charge of the consideration of cases in the first instance. The procedural rules on the jurisdiction of cases to economic courts are enshrined in a seperate paragraph "Jurisdiction" o f chapter 5 o f the EPC o f the Republic of Uzbeki stan. On the basis o f article 25 o f the EPC of the Republic of Uzbekistan, we can divide the following six categories of cases which is subordinate to the economic court.
The first category of cases includes cases of disputes arising in the economic sphere from civil, administrative and other legal relations between legal entities and citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur, acquired in accordance with the procedure established by law, as well as citizens who are by the parties in cases of corporate disputes.
This norm establishes a general norm as compared with Article 26 of the EPC of the Republic of Uzbekistan, which specifically determines what kind of disputes can be subordinated to the economic courts:
1) on disagreements arising from the conclusion of a contract, the obligation to enter into which is provided by law;
2) disagreements arising at the conclusion of the contract, the transfer of which to the court is agreed by the parties to the contract;
3) to amend or terminate the contract;
4) about recognition of the transaction as invalid;
5) non-fulfillment or improper performance of obligations;
6) recognition of property rights;
7) on the recovery by the owner or other legal owner of the property from another's illegal possession;
8) on violation of property rights to objects of intellectual activity and means of individualization of participants in civilian circulation, goods, works and services;
9) violation of the rights of the owner or other legal owner, not related to deprivation of possession;
10) on damages;
11) on the protection of business reputation;
12) on recognition of the executive or other document that is not subject to execution, according to which the recovery is carried out in an indisputable (without acceptance) procedure;
13) on collecting fines from legal entities and citizens by regulatory authorities, unless the law provides for an indisputable (without acceptance) procedure for their collection;
14) on the return from the budget of funds, written off in violation of the requirements of the law by regulatory authorities, in an indisputable (without acceptance) procedure.
In our opinion, it was further expedient to transfer the disputes set out in paragraphs 12, 13, 14 of Article 26 of the EPC RUz to the administrative courts, since these disputes arise from the administrative-legal relation.
The second category of cases under the jurisdiction of the economic court consists of cases of establishing facts that are relevant to the occurrence, change or termination of the rights of legal entities and individual entrepreneurs in the economic sphere.
Cases of establishing facts of legal significance are considered by the court according to the general rules of action proceedings. The court establishes the facts that are relevant for the occurrence, change or termination of the rights of legal entities and individual entrepreneurs in the economic sphere.
The court considers cases to establish the fact:
> possession and use of real estate by a legal entity or individual entrepreneur as its own;
> state registration of a legal entity or an individual entrepreneur at a certain time and place;
> affiliation of a title document operating in the economic sphere, legal entity or individual entrepreneur, if the name of the legal entity, the last name, first name or patronymic of the individual entrepreneur indicated in the document do not coincide with the name of the legal entity by its constituent document or the last name, name and patronymic of the individual entrepreneur on his passport or birth certificate.
The court may establish other facts of legal significance, unless the law provides for a different procedure for their establishment.
Bankruptcy cases are the third category of cases under the jurisdiction of the economic court. This category of cases includes cases on declaring legal entities and citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur, acquired in accordance with the law, as well as individuals who have lost the status of an individual
entrepreneur who cannot meet the demands of creditors for bankruptcy. Obligations and (or) to fulfill obligations for obligatory payments, if monetary obligations and obligations for mandatory payments are Sales stem from their previous business activities.
Cases related to the arbitration proceedings constitute the fourth category of cases and covers the cases of applications:
1) on taking measures to secure the claim;
2) contesting the decisions of arbitration courts;
3) on issuance of writ of execution for the enforcement of decisions of arbitration courts.
The law also established that, by agreement of the parties, a dispute arising or likely to arise, arising from civil law relations and under the jurisdiction of the economic court, may be referred to an arbitration court before its decision (Article 29 of the EPC of the Republic of Uzbekistan). It should be noted that the cases on applications for taking measures to secure the claim were established in the EPC RUz for the first time.
The fifth category of cases includes corporate disputes. With the exception of labor disputes, corporate disputes include:
1) disputes related to the creation, reorganization and liquidation of a legal entity;
2) disputes related to the ownership of shares, shares in the authorized capital (authorized capital) of business companies and partnerships, shares of members of cooperatives, the establishment of their encumbrances and the realization of the rights arising from them, with the exception of disputes arising in connection with the division of inherited property or the division of property of spouses, including shares, shares in the authorized capital (authorized capital) of economic societies and partnerships, shares of members of cooperatives;
3) disputes over claims of participants (founders, members) of a legal entity on the recognition as invalid of transactions made by a legal entity, and (or) the application of the consequences of the invalidity of such transactions;
4) disputes related to the issuance of securities, including challenging the decisions of the issuer's management bodies, challenging transactions made in the process of placing equity securities, reports (notifications) on the results of the issue (additional issue) of equity securities;
5) disputes arising from the activities of nominal holders of securities related to the rights to shares and other securities, with the exercise of other rights and obligations provided for by law in connection with the placement and (or) circulation of securities;
6) disputes about convening a general meeting of participants in a legal entity;
7) disputes about appealing decisions of the governing bodies of a legal entity (Art. 30 of the EPC of the Republic of Uzbekistan).
In connection with the development of economic relations between countries, especially in the field of entrepreneurship, a new sixth category of cases was introduced that are related to the recognition and enforcement of foreign judgments and arbitration.
Based on Article 31 of the EPC of the Republic of Uzbekistan, the cases on recognition and enforcement of decisions of foreign courts and arbitration include:
- recognition and enforcement of decisions of foreign courts, taken by them on disputes arising from the implementation of entrepreneurial and other economic activities;
- recognition and enforcement of decisions of foreign arbitrations, taken by them in disputes arising from the implementation of entrepreneurial and other economic activities.
In addition to the above categories of cases, we can single out another separate category - cases which related with other claims. Since procedural legislation provides for combining several related claims, of which some are under the jurisdiction of the economic court and others under the civil court, all requirements are subject to review by the court in civil cases. However, the EPC of the Republic of Uzbekistan does not allow for the merging of several related requirements, of which some are within the jurisdiction of the administrative court, and others under the economic court (part 6 of article 25 of the EPC of RUz). Thus, the law ensures the implementation of the principle of independence of the judiciary and the courts. However, in the procedural legislation there is no procedural mechanism when combining several related requirements.
The law also provides for the jurisdiction of the economic court of cases involving disputes involving citizens who have lost the status of an individual entrepreneur, in cases where the relevant requirements derive from their previous entrepreneurial activities.
In the economic procedural law also enshrines the rules on the legal consequences of non-compliance with the rules of jurisdiction. Non-compliance with the rules of jurisdiction entails the following legal consequences:
1) If the judge determines, at the stage of accepting the statement of claim to the proceedings, that the case is not within the jurisdiction of the court, the judge on the basis of paragraph 1 Part 1 Article 154 of the EPC of the Republic of Uzbekistan refuses to accept the statement of claim to the proceedings;
2) Based on paragraph 1 of Part 1 of Article 110 of the EPC of the Republic of Uzbekistan, the court terminates the proceedings in the case, if the case is not subject to the court. A court ruling terminates production. In the event of termination of the proceedings, a repeated appeal to the court in a dispute between the same persons, on the same subject and on the same grounds is not allowed;
3) From procedural rules we can say that when making a decision not observing the rules of jurisdiction, the decision is canceled above by a standing court on the basis of paragraph 4 of part 1 of article 273 of the EPC of the Republic of Uzbekistan for violation or incorrect application of the rules of substantive and (or) procedural law;
4) Based on paragraph 4 of Part 1 of Art. 342 of the Tax Code of the Republic of Uzbekistan [5], the state duty shall be refunded upon refusal to accept the application by the court and upon termination of the proceedings in the case, if it is not within the jurisdiction of the court.
I would like especially note that when making a decision on termination of a case on the grounds of no jurisdiction to the court of cases, the court should indicate the competent authority to which the applicant should apply. However, such a procedural rule in the EPC RU is absent. Only enshrined the rule of court order:
> on the grounds for termination of the proceedings;
> on the return of state duty from the budget;
> distribution between the parties of court costs [6].
For effective resolution of disputes, it is advisable to fix the rule on the indication by the economic courts of the competent authority when determining a case that is not under the jurisdiction of the economic court.
In summary, we can note the following conclusions:
Firstly, the institution of jurisdiction is one of the most important institutions of economic procedural law in the effective resolution of disputes;
Secondly, the rules on the jurisdiction of economic cases are determined and established by law; Thirdly, non-compliance with the rules of jurisdiction entails certain legal consequences; Fourthly, it is advisable to establish a procedural rule on the indication by the economic courts of the competent authority when determining a case not within the jurisdiction of the economic court;
Fifthly, in order to eliminate some legal and practical problems in legislation and judicial practice, it is necessary legislatively establish a procedural mechanism for determining several related requirements under the jurisdiction of several judicial bodies simultaneously.
References / Список литературы
1. Чудиновских К. Подведомственность в системе гражданского и арбитражного процессуального права. Юридический центр Пресс. Санкт-Петербург, 2004. С. 3.
2. Арбитражный процесс: учебно-практическое пособие / П.В. Бахарев. М.: Изд.центр ЕАОИ.2010. С. 53.
3. Стрелькова И.И. Подведомственность арбитражному суду дел по экономическим спорам и иных дел: Дисс. канд. юрид. наук. Екатеринбург, 2002. С. 14.
4. Национальная база данных законодательства, 25.01.2018. № 02/18/ЭПК/0623.
5. Собрание законодательства Республики Узбекистан, 2007 г. № 52 (II).
6. Салимова И.М. Сравнительный анализ институтов подведомственности и подсудности в экономическом процессуальном законодательстве Республики Узбекистан // По результатам XXVI Международной научной конференции «Свобода и право», 30 апреля 2018 г. С. 46-47. [Электронный ресурс]. Режим доступа: http://ur-fakt.ru/vypuski/ (дата обращения: 25.10.2018).
