1. The subject of the dispute is the appeal against the actions of a private enforcement officer regarding the initiation of enforcement proceedings for the compulsory execution of a court decision on the recovery of funds from JSC “Gas Distribution System Operator “Kharkivgaz”.
2. The courts of previous instances granted the complaint of JSC “Gas Distribution System Operator “Kharkivgaz”, considering the actions of the private enforcement officer unlawful, since the corporate rights of the debtor were transferred to the management of ARMA, which, in their opinion, is equated to the state’s share in the authorized capital of more than 25%, which prohibits a private enforcement officer from carrying out compulsory execution. The courts proceeded from the fact that the asset management carried out by ARMA gives the state temporary ownership rights, and therefore the restriction provided for in paragraph 2 of part two of Article 5 of the Law of Ukraine “On Enforcement Proceedings” applies. However, the Supreme Court did not agree with this approach, considering that the joint chamber of the Commercial Cassation Court deviated from the previous position regarding the identity of asset management and ownership. The Supreme Court emphasized that ARMA’s asset management does not change the form of ownership and does not transform assets into state property, and therefore, the restrictions for a private enforcement officer do not apply.
3. The Supreme Court overturned the decisions of the previous instances and rejected the complaint of JSC “Gas Distribution System Operator “Kharkivgaz” against the actions of the private enforcement officer.
: The court states in the decision that it departs from the previous position that was in other decisions of the Supreme Court.
