Article 42 of the Constitution of Ukraine guarantees that the State protects the rights of consumers, exercises control over the quality and safety of products and all types of services and works, promotes the activities of public consumer organizations
The main legal act governing the relationship between consumers of goods, works and services and producers and sellers of goods, contractors and service providers of various forms of ownership, establishes the rights of consumers, as well as determines the mechanism of their protection and the implementation of state policy in the field of protection consumers is accepted May 12, 1991 Law of Ukraine “On Consumer Protection”.
At first glance, the norms of the current legislation are clear and understandable until the issue of protection of the violated right in court arises. kind of procedural “nuances”.
The Law of Ukraine “On Consumer Protection” clearly defines:
- Consumer protection provided by law is protected by a court.
Part 5 of Article 28 of the Civil Procedure Code of Ukraine stipulates that claims for consumer protection may also be filed at the registered place of residence or stay of the consumer or at the place of damage or performance of the contract.
Part 3 of Article 8 of the Law “On Consumer Protection” consumer requirements are presented at the choice of the consumer to the seller at the place of purchase, the manufacturer or the company that meets these requirements at the location of the consumer.
Thus we see that the Legislator gives the consumer the right to choose to whom he will present his claims.
What happens in practice.
The Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Civil Court of Cassation in case 99199/6062/15-ts of July 24, 2019, considered a case where the subject of consideration was the elimination of defects or replacement of defective goods with new ones.
The plaintiff stated that he had purchased a mobile phone which had stopped working. He appealed to the service center with a request for warranty service of the mobile phone, but he was denied warranty repairs, as well as product examination. In addition, the phone was forcibly and without his consent issued for paid repairs, which was determined in two days, but so far the phone has not been returned to him, which violates his rights as a consumer of services.
In this case, the position of the appellate court, which carried out a superficial consideration of the case, which led to an erroneous rejection of the satisfied claim on the grounds of allegedly improper defendant in the case, is interesting.
Since there is also improper service in this case, the Defendant in this case was chosen by the service center and the official representative of the manufacturer in Ukraine, while the court’s position was that the defendant is improper, because it is not a store where the latter bought my gadget.
Thus, on the example of this case we see “different” approaches of the court, that the decision of the case and the interpretation of seemingly obvious rules of applicable law.
- Consumers are exempt from paying court fees for lawsuits related to the violation of their rights.
So to speak, the “battle” between the current legislation on the exemption of consumers from paying court fees and the case law, which applies to consumers only when applying to the court of first instance, has been long and has changed many times.
In 2017, the Supreme Court of Ukraine in its decisions of 06.09.17 in case № 6-185tss17 and of 11.10.17 in case № 6-916tss17 concludes that the consumer whose right has been violated and who in this regard files a lawsuit, in accordance with Article 22 of the Law of Ukraine of 12.05.1991 № 1023-XII “On Consumer Protection”, is exempt from paying the court fee for filing a claim in the court of first instance, and has the obligation to pay the court fee when taking appropriate action in all other courts and in the Supreme Court of Ukraine.
Such conclusions have caused a great deal of indignation on the part of practitioners and theorists.
On March 21, 2018, the Grand Chamber of the Supreme Court departed from the established practice of the Supreme Court of Ukraine and noted that violated rights can be defended both in the court of first instance (when filing a lawsuit) and in subsequent stages of civil proceedings.
It was thanks to the decision of the Grand Chamber of the Supreme Court in case №761 / 24881/16-ts of 21 March 2018 that the established case law was changed and consumers were released from the obligation to pay court fees at all stages of civil proceedings.
- When satisfying the consumer’s claims, the court simultaneously decides on compensation for moral (non-pecuniary) damage.
Relations regarding compensation for non-pecuniary damage caused by product defects (defects in products) are regulated by the Law of Ukraine “On Consumer Protection”.
Consumer protection provided by law is protected by a court. When satisfying the consumer’s claims, the court simultaneously decides on compensation for moral (non-pecuniary) damage (parts one, two of Article 22 of the Law of Ukraine “On Consumer Protection”).
For a long time the jurisprudence formed on this issue was as follows: “According to the provisions of Articles 4, 22 of the Law of Ukraine” On Consumer Protection “consumers have the right to compensation for non-pecuniary damage only if it causes dangerous to life and health products in cases provided by law.».
This is exactly the practice followed by courts when considering cases of consumer claims for protection of their rights in terms of recovery of non-pecuniary damage, despite the amendments to the Law in 2011, the case law remained unchanged.
By the decision of the Supreme Court in the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation in case №490 / 8831/15-ts of 26.09.2018 having collected from the defendant UAH 1,500 for moral damages, the Supreme Court stressed that in accordance with paragraph 5 h 1 consumers when purchasing, ordering or using products sold in Ukraine, to meet their personal needs are entitled to compensation for property and non-pecuniary damage caused by product defects (defects in products), in accordance with the law.
The above-mentioned decision of the Supreme Court does not contain a clear conclusion on the departure from the previously established case law, however, it is supported by the Supreme Court within the Joint Chamber of the Civil Court of Cassation in the decision of 10.04.2019 in case №360 / 723/16 -c, who acknowledged that the violation of consumer rights led to the need to make additional efforts to organize their lives and professional activities, ie moral damage was caused in the form of mental suffering in connection with illegal behavior against her, which gives her the right to compensation damages and additionally emphasized in its conclusions that the Supreme Court in the Joint Chamber of the Civil Court of Cassation concluded that there were no grounds for deviating from the legal position expressed in the Supreme Court’s decision in the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation of 26 September 2018 year in the case № 490/8831/15-ts.
In addition, the decision of the Grand Chamber of the Supreme Court of 15.05.2019 in case №331 / 5054/15-ts is noteworthy, where the court found that failure to transfer the goods and not return its paid value / prepayment is the basis for recovery of such funds inflation index and 3% per annum.
The Grand Chamber of the Supreme Court has repeatedly stated that the status of an entrepreneur does not indicate that from the moment of state registration of a natural person-entrepreneur such a person acts as an entrepreneur in all legal relations (see conclusions formulated in the decisions of March 14, 2018 in case № 2 -7615/10, dated June 5, 2018 in case №522 / 7909/16-ts, dated June 20, 2018 in case № 216/181/16-ts).
The relationship regarding the protection of the plaintiff’s rights provides for a simpler confirmation of the legal relationship itself – even primary documents are not required – a sufficient fiscal check, receipts, etc. (Resolution of the Supreme Court of the Supreme Court of 15.05.2019 in the case):
43. Paragraph 7 of Article 1 of the Law of Ukraine “On Consumer Protection” stipulates that a contract is an oral or written transaction between a consumer and a seller (performer) on the quality, terms, price and other conditions under which products are sold. Confirmation of the oral transaction is made out by a receipt, commodity or cash receipt, ticket, coupon or other documents.
44. The courts of first and appellate instances, on the basis of the fiscal checks and other documents available in the case file, established that the parties had a binding legal relationship: the plaintiff paid the value of the goods in cash and the defendant did not transfer the goods to the plaintiff.
45.The courts assessed the defendant’s electronic invoices for the internal movement of goods, stating that these documents did not meet the requirements of the legislation on the form of their compilation, as they lacked the information provided in the order of the Ministry of Statistics of Ukraine of 21 June 1996 № 1193 primary accounting documents for accounting of raw materials “. These invoices for the transfer of goods from the main warehouse to the intermediate warehouse (cross-dock), and then from the intermediate warehouse (cross-dock) to the warehouse did not confirm the transfer of goods to the plaintiff. The courts found that there were no primary documents on the basis of which this fact could be established.
Thus, it is seen that consumer protection has a number of subtleties that require a clear strategy and tactics of protection, because even clearly defined rules of current legislation have repeatedly been subjected to different approaches to their interpretation, which is reflected in the case law.