It is known that a significant overhaul of the premises could lead to
emergence of a new property, which differs from the original
technical condition, purpose and area. But how does this
identify? I think this question can be answered with specific specialist
knowledge - building and technical experts. I propose to consider
"What is the examination and what is it for?" a concrete example of
practices for its intended use. Examination
In accordance with Article 1 of the Law of Ukraine "About judicial reviews," the court
expertise - this expert study on the basis of special knowledge
material objects, phenomena and processes that contain information about
circumstances of the case pending before investigative bodies,
pretrial and trial.
According to the provisions of Article 41 of the Economic Procedural Code
Ukraine (COD), to clarify issues arising from the decision
economic disputes and require expertise, the economic court
appoint a forensic examination.
Participants in the trial have the right to offer economic court
issues that need to be clarified forensic experts. Final
range of these issues is set by the economic court in the definition.
Appointment examination may, at the request of the parties, third parties,
prosecutor and the court on its own initiative. If a person has filed an application for
examination appointment, but others argue against it, the court decides
question, based on the alleged motives of the application and necessary
use specialized knowledge to establish the circumstances, having
to the case. Situation
Entrepreneur turned into an economic court against the city council,
municipal enterprise "Municipal Bureau of Technical Inventory and
registration of real estate "for recognition of rights claimant
Ownership of property - non-residential basements and
Commitment KP "City Bureau of Technical Inventory and Registration
real estate "to carry out state registration of rights
Property plaintiff's property - non-residential basements.
Claims based on the fact that, in accordance with the terms of the contract
lease was obtained by the plaintiff for rent non-residential premises (basement). By
agreement with the defendant and state authorities Entrepreneur
carried out major repairs of the leased premises, resulting in
a new property that is different from the original
technical condition, purpose and area. Ownership
on the specified object was recorded for the territorial community of the city
in the face of the city council.
The decision of Economic Court of the claim. Citing the court decision,
Commercial Court, in particular, notes that the plaintiff was actually
A new thing, and after construction basement
premises taken into operation.
The definition of Economic Court of Appeal in the case appointed judicial
construction and technical expertise. The judicial construction
technical examination of the case entrusted Odessa Research
Forensic Science Institute. During the examination, should decide such
1) what is the real value of construction work performed physical
person - the entrepreneur during the rental of non-residential basements;
2) Has the technical characteristics of the object of rent - non-residential
basements at the address made by
tenant construction work, which would require the adoption of the completed
construction of the object;
3) whether the requirements of construction norms and rules of
reconstruction of non-residential tenant basements at the specified
Appellate proceedings in connection with the appointment of expert
Motivating the definition, Economic Court of Appeal noted that the
the present case, the court must appoint a construction-technical
examination, as to value made by the plaintiff
construction work on its leased facility on its improvement and its
technical characteristics, as well as for other matters required
Disagreeing with the definition of management utilities
owned by the city council appealed to the Supreme Economic Court
Ukraine (VHSU) to appeal against the determination. The complainant notes
that determine the cost incurred by the plaintiff of construction work does not affect
the outcome of the case per se.
A panel of judges agreed that, given the right of the court to assess
evidence on their inner conviction, the appellate economic
Court gave a completely correct justification for judicial appointment
construction and technical expertise.
Since the court decision be appealed only in cases
provided for the COD and the Law of Ukraine "On Restoring Solvency
debtor or declaring it bankrupt, "and appeal to the definition in part
purpose examination is not appealable, the definition
Economic Court of Appeal may be appealed only in part
suspension of the proceedings. Moreover, in accordance with Part 2
Article 79 of COD in the case of appointment by the economic court of judicial review
suspension of the proceedings is the right of the court.
In such circumstances, a panel of judges believed that the definition
Economic Court of Appeal issued in compliance with the law in
therefore grounds for cancellation are absent (ruling VHSU of 4
November 2008 in the case of N 15-6/416-06-11259). Output
From the foregoing it follows that the judicial construction and technical expertise
appointed, if there is a need for specialized knowledge. Determination of
Examination of the destination is not appealable. Suspension of the same
proceedings is the right of the court.
But it important for the court's decision in a case such issues as
the actual cost of construction has changed a technical
characteristic of the object, whether the requirements of building regulations
produced by the reconstruction?
Do not forget that, according to the plot of the case, the reconstruction carried out by
agreement with the defendant and state authorities.
The plaintiff requested the recognition of his ownership of the property,
arguing that in fact created a new thing. And after
construction work allegedly has a new property, wherein
from the initial technical condition, purpose and area.
Can the Court distinguished without special knowledge, it really this object
new? Can I give him a certificate as to the newly created? Here
necessarily be involved examination! However, I think the cost of
this restructuring, and in fact does not affect the result. But this is only one
three issues of expertise.
Convinced that the suspension of the proceedings before the examination
disadvantageous to the plaintiff, because he wants as soon as possible to start operating
of the basement for commercial purposes, and as soon as possible "recapture" invested in repair
funds. However, as mentioned above, the definition of the appointment
examination can not be appealed, in whole or in part. Law is not