Features of the application of Article 33 of the Law of Ukraine «On the lease of land» in the economic process: review of judicial practice.

Abstract

The article deals with the peculiarities of the application in the economic procedure of Article 33 of the Law of Ukraine «On Land Leasing» by the lower courts of the conclusions of the Supreme Court of Ukraine regarding the determination of the time of the conclusion of the land lease contract, its state registration, and the period of validity of the lease agreement.

The practice of the Supreme Court of Ukraine regarding legal positions in certain categories of cases was reviewed and analyzed, and their conflicts were emphasized.

It is proposed to legislate binding on lower courts in making judgments on the application of similar rules of material and procedural law in such legal relations, which is set forth in resolutions of the plenum of the Supreme Court of Ukraine.

Analyze the practice of the Supreme Court of Ukraine on the legal position of certain categories of cases, marked by its inconsistency. Positions of scientists are studied in relation to obligatoryness for the courts of more subzero instance of conclusions Supreme to the court of Ukraine in relation to application of norms material and procedural law in such legal relations. Because a plenum of the Supreme court of Ukraine is a collective organ, on a plenum made decision most judges, drawn conclusion, what only positions of plenum of the Supreme court of Ukraine will be able to provide forming identical judicial practice. On the basis of analysis of judicial practice and the doctrine approach the studied question is offered to fasten in a legislation a rule that conclusions about application in the similar legal relationships of the norms of material and judicial right, expounded in the decisions of plenum of the Supreme court of Ukraine are obligatory for the courts at the acceptance of court decisions.

The absence of a clear definition of the time of the contract in the law may lead to abuse by the tenant, namely: artificial extension of the contract by its later registration, as well as evasion of payment for land lease and related taxes, since the payment of the contract carried out after its conclusion, and as noted above – the contract is considered concluded from the date of its state registration.

In order to resolve disputed issues that may arise during the exercise of the right to lease land, Article 17 of the Law of Ukraine «On land lease» should be worded as follows: «the object under the lease agreement is transferred to the lessor by the lessee from the moment of the state registration of the right of lease and after the signing of the act of acceptance-transfer, unless otherwise specified by law».