Lecture No. 13

1. Proceedings in the court of appeal

Can be appealed on appeal only rulings and court decisions of magistrates that have not entered into legal force. This is how appellate proceedings differ from cassation proceedings (in cassation proceedings, rulings, decisions and court decisions of courts of general jurisdiction that have not entered into legal force can be reviewed). The basis for initiating appeal proceedings is an appeal. The parties and other persons participating in the case have the right to file an appeal. The prosecutor participating in the case may file an appeal against the decision of the magistrate. It must be taken into account that the complaint or presentation is submitted to the relevant district court through the magistrate, who considered and resolved the case on the merits. The general period for filing an appeal or presentation is 10 days from the date of the court’s final decision.

The appeal and presentation must be of the following content (Article 322 of the Code of Civil Procedure of the Russian Federation):

1) the name of the district court to which the complaint or presentation is addressed;

2) the name of the person filing the complaint, presentation, his place of residence or location;

3) an indication of the appealed decision of the justice of the peace;

4) arguments of the complaint, presentation;

5) request of the person concerned;

6) a list of documents attached to the complaint, submission.

If the appeal is filed by a representative, then a power of attorney (or other document) certifying the powers of the representative must be attached to the complaint, if there is no such power in the case. The appeal must be submitted with copies of the submitted documents, the number of which must correspond to the number of persons participating in the case. The appeal is paid by the state fee in the amount of 50%, i.e. 50 rubles.

Upon receipt of an appeal or presentation, the court may make the following decision:

1) to leave without movement, if the appeal, presentation do not meet the requirements stipulated by the Code of Civil Procedure of the Russian Federation. At the same time, the court issues a ruling, on the basis of which it leaves the complaint, presentation, and indicates the period during which the shortcomings must be corrected (a fee must be paid, a power of attorney or other document must be submitted, etc.). When filing an appeal, the prosecutor does not pay the state fee;

2) return the appeal or presentation. The court may make such a decision on the following grounds:

a) the instructions of the justice of the peace contained in the court ruling on leaving the complaint or presentation without movement have not been fulfilled within the established period;

b) the period for appeal has expired, if the complaint or presentation does not contain a request for the restoration of the period or its restoration is refused;

c) the request of the person who filed the appeal, presentation, if the case was not sent to the district court.

When the appeal or presentation is returned, the court shall issue a ruling specifying the grounds for returning the complaint or presentation. The person who filed the appeal, the prosecutor who brought the presentation, have the right to appeal against the court ruling in the generally established procedure provided for by the Code of Civil Procedure of the Russian Federation. The justice of the peace after receiving the appeal, presentation is obliged to send to the persons participating in the case, copies of the complaint, presentation and documents attached to them. The persons participating in the case have the right to submit objections to the justice of the peace in writing regarding the appeal, presentation with the attachment of documents confirming these objections, and their copies, the number of which corresponds to the number of persons participating in the case, and have the right to familiarize themselves with the case materials, with the received complaints, representations and objections to them. After the expiration of the period for appeal, the justice of the peace sends the case with the appeal, the presentation and the objections received regarding them to the district court. Before the expiration of the appeal period, the case cannot be sent to the district court (Article 325 of the Code of Civil Procedure of the Russian Federation).

A feature of the appeal proceedings is that all civil proceedings begin from the very beginning, i.e. the court has the right to establish new facts, as well as to examine new evidence. Consideration and resolution of the case on the merits in the appellate instance take place according to the rules of proceedings in the court of first instance.

When considering the resolution of a case in a court of appeal, the court is competent (Article 328 of the Code of Civil Procedure of the Russian Federation):

1) to leave the decision of the justice of the peace unchanged, the complaint, presentation - without satisfaction;

2) change the decision of the justice of the peace or cancel it and adopt a new decision;

3) cancel the decision of the justice of the peace in whole or in part and terminate the court proceedings or leave the application without consideration.

The moment of entry into force of the decision of the court of appeal is the day of the issuance of the judgment.

The grounds for canceling or changing the judgment of the justice of the peace are (Article 330 of the Code of Civil Procedure of the Russian Federation):

1) incorrect determination of circumstances relevant to the case;

2) failure to prove circumstances established by the court of first instance that are relevant to the case;

3) discrepancy between the conclusions of the court of first instance, set out in the court decision, and the circumstances of the case;

4) violation or incorrect application of the norms of substantive law or norms of procedural law.

Violation or incorrect application of the norms of substantive law is observed if (Article 363 of the Code of Civil Procedure of the Russian Federation):

1) the court did not apply the applicable law;

2) the court has applied a law that is not subject to application;

3) the court misinterpreted the law.

Violation or incorrect application of the norms of procedural law is the basis for the cancellation of the decision of the court of first instance only if this violation or incorrect application has led or could have led to an incorrect resolution of the case (Article 364 of the Code of Civil Procedure of the Russian Federation).

A private court ruling may also be appealed on appeal, against which a private complaint or a prosecutor's presentation may be filed within 10 days from the date the ruling was issued by a justice of the peace.

The court of appeal, having considered a private complaint, a presentation by a prosecutor, has the right (Article 334 of the Code of Civil Procedure of the Russian Federation):

1) to leave the ruling of the justice of the peace unchanged, and the complaint or presentation - without satisfaction;

2) cancel the ruling of the justice of the peace in whole or in part and resolve the issue on the merits.

2. Proceedings in the court of cassation

Court decisions of courts of general jurisdiction that have not entered into legal force are appealed through the cassation procedure.. The parties, persons participating in the case, as well as the prosecutor participating in the case have the right to file a cassation appeal or presentation. The deadline for filing a cassation appeal or presentation is 10 days from the date of the court’s final decision.

Decisions of the court of first instance that have not entered into legal force can be appealed in cassation (Article 337 of the Code of Civil Procedure of the Russian Federation):

1) decisions of district courts, decisions of garrison military courts - respectively to the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court;

2) decisions of the supreme courts of republics, territorial, regional courts, courts of cities of federal significance, courts of an autonomous region, courts of autonomous districts, district (naval) military courts - to the Supreme Court of the Russian Federation;

3) decisions of the Judicial Collegium for Civil Cases and the Military Collegium of the Supreme Court of the Russian Federation - to the Cassation Collegium of the Supreme Court of the Russian Federation.

As well as in the appellate proceedings, the cassation complaint, presentation are filed with the court, which made the judgment on the case. However, when appealing against a court decision in cassation, new evidence cannot be presented. The only exception is the evidence that could not be submitted to the court of first instance. The fact of the impossibility of presenting evidence earlier will have to be proved by the party that presented them.

The content of the cassation complaint, presentation should be as follows (Article 339 of the Code of Civil Procedure of the Russian Federation):

1) the name of the court to which the complaint or presentation is addressed;

2) the name of the person filing the complaint or presentation, his place of residence or location;

3) an indication of the court decision that is being appealed;

4) the demands of the person filing the complaint, or the demands of the prosecutor making the presentation, as well as the grounds on which they consider the decision of the court to be incorrect;

5) a list of evidence attached to the complaint, presentation.

When considering a cassation appeal, presentation the court may make the following ruling:

1) to leave the cassation complaint, presentation without motion, if the complaint, presentation does not meet the requirements of the Code of Civil Procedure of the Russian Federation. In this case, the court determines the period during which the deficiencies must be corrected. If the person who filed the cassation appeal or presentation within the established time period complies with the instructions contained in the court ruling, the complaint or presentation is considered filed on the day of the initial receipt by the court (part 2 of article 341 of the Code of Civil Procedure of the Russian Federation);

2) return the cassation appeal or presentation, if the judge’s instructions contained in the ruling to leave the complaint or presentation without progress have not been fulfilled within the established period, the period for appeal has expired, unless the complaint, presentation contains a request to restore the period or its restoration is refused.

The cassation complaint is also returned at the request of the person who filed the complaint, the cassation presentation, if it is withdrawn by the prosecutor, if the case is not sent to the court of the cassation instance.

After receiving a cassation appeal or presentation, the judge is obliged (Article 343 of the Code of Civil Procedure of the Russian Federation):

1) not later than the next day after the day of their receipt, send to the persons participating in the case copies of the complaint, presentation and written evidence attached to them;

2) notify the persons participating in the case of the time and place of consideration of the complaint, presentation in cassation in the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court;

3) after the expiration of the period established for the cassation appeal, send the case to the court of the cassation instance.

Until the expiration of the period established for the cassation appeal, no one can demand the case from the court. The persons participating in the case have the right to get acquainted in court with the materials of the case, received cassation complaints, presentations and objections regarding the complaint, presentation.

The court of cassation reviews the decision of the court of first instance on legitimacy and validity, based on the requirements presented by persons in the cassation appeal, presentation. At the same time, the court has the right to evaluate all the evidence available in the case, together with those that were presented when filing a cassation appeal, presentation, provided that the court affirmed that the presentation of this evidence in court was impossible. The court has the right to review the decision rendered by the court of first instance in its entirety, if this is necessary in the interests of legality.

The Civil Procedure Code of the Russian Federation establishes the terms within which cases must be considered in the cassation instance (Article 348 of the Code of Civil Procedure of the Russian Federation):

1) the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court must consider the case received on the basis of a cassation complaint, presentation no later than within a month from the date of its receipt;

2) The Supreme Court of the Russian Federation must consider the case received on the basis of a cassation complaint or presentation within 2 months from the date of its receipt;

3) a cassation appeal, a presentation in a case on the protection of electoral rights and the right to participate in a referendum of citizens of the Russian Federation, received for consideration by the court of cassation during the election campaign, referendum campaign before voting day, are considered by the court within 5 days from the date of their receipt;

4) cassation appeals, submissions against a decision on a case on refusal to register a candidate (list of candidates), on cancellation of registration of a candidate (list of candidates), received by the court of cassation during the election campaign, referendum campaign before voting day, are considered by the court no later than the day voting.

The conduct of the trial is carried out according to the general rules provided for the courts of first instance. The presiding judge opens the court session and announces which case is being considered, on whose cassation appeals, checks the persons present, and also checks the authority of the representative and the documents certifying his authority. After that, the presiding judge announces the composition of the court, which will consider the civil case. Cases in the cassation instance are considered by a court composed of three professional judges, one of which is the presiding judge. The persons participating in the case are explained the right to challenge the judge.

The court cannot consider the case if there are the following grounds (Article 16 of the Code of Civil Procedure of the Russian Federation):

1) during the previous consideration of this case, the judge participated in it as a prosecutor, secretary of the court session, representative, witness, expert, specialist, translator;

2) the judge is a relative or relative of any of the persons participating in the case, or their representatives;

3) the judge is personally, directly or indirectly interested in the outcome of the case, or there are other circumstances that cast doubt on his objectivity and impartiality.

The court may not include persons who are related to each other.

After the removal of the judge, the persons participating in the case have the right to file petitions on all issues related to the consideration of the case in the court of cassation, which are resolved directly at the court session. Consideration of the case in the court of cassation begins with the report of the judge. The speaker sets out the circumstances of the case, the content of the decision of the court of first instance, the arguments of the cassation appeal, presentation and objections received regarding them, the content of the new evidence presented to the court, and also reports other data that need to be considered by the court to verify the court decision (Article 356 of the Code of Civil Procedure of the Russian Federation) . The first person in the court of cassation is the person who filed the cassation appeal, or his representative. If the prosecutor brought a cassation presentation, then the prosecutor shall act first in the court session. In the event that there is an appeal of the court decision by both parties, then the plaintiff acts first in the trial. The court examines the evidence presented by the parties, if the court finds that it was impossible to present them in the court of first instance. And also evidence can be examined, the examination of which was denied in the court of first instance. In the event that new evidence is examined in the court of cassation, judicial debates are held according to the rules provided for by the Code of Civil Procedure of the Russian Federation. At the end of the judicial debate, the court retires to the deliberation room to make a judgment.

The court of cassation, when considering a cassation complaint, presentation, has the right (Article 361 of the Code of Civil Procedure of the Russian Federation):

1) to leave the decision of the court of first instance unchanged, and the cassation appeal, presentation - without satisfaction;

2) cancel the decision of the court of first instance in whole or in part and send the case for a new trial to the court of first instance in the same or another composition of judges, if the violations committed by the court of first instance cannot be corrected by the court of cassation;

3) to change or cancel the decision of the court of first instance and adopt a new decision without submitting the case for a new trial, if the circumstances relevant to the case are established on the basis of the available and additionally submitted evidence;

4) cancel the decision of the court of first instance in whole or in part and terminate the proceedings on the case or leave the application without consideration.

The grounds for canceling and changing a judgment in cassation are the same as for the appellate instance. At the end of the proceedings in a civil case in a court of cassation, the court shall issue cassation ruling, which must contain the following provisions (Article 366 of the Code of Civil Procedure of the Russian Federation):

1) the date and place of the issuance of the ruling;

2) the name of the court that issued the ruling, the composition of the court;

3) the person who filed the cassation complaint, presentation;

4) a summary of the appealed decision of the court of first instance, cassation complaint, presentation, evidence presented, explanations of persons participating in the consideration of the case in the court of cassation;

5) conclusions of the court based on the results of consideration of the cassation complaint, presentation;

6) the motives on which the court came to its conclusions, and a reference to the laws by which the court was guided.

The cassation ruling shall enter into force from the moment of its issuance.

Author: Gushchina K.O.

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