Deadline for the execution of the decision of the arbitration court of the appellate instance. Powers of the Arbitration Court of the Appeal Instance. The decision of the arbitration court of the appellate instance. Subjects of the right of cassation appeal
Resolution arbitration court the appellate instance is judicial act, which is adopted based on the results of the consideration of the case.
Like any judicial act of an arbitration court, it must be lawful, substantiated and motivated (see.
Part 3 of Art. 15 APC RF).
The Arbitration Procedure Code of the Russian Federation establishes a range of issues that should be contained in a resolution (Article 271).
Introductory part:
The name of the arbitration court of the appellate instance;
The composition of the appellate board that considered the case and adopted the decision;
The surname of the person who kept the minutes of the court session;
Case number, date and place of the decision;
The name of the person who filed the appeal and his procedural position(plaintiff, defendant, etc.);
The names of the persons participating in the case;
The subject of the dispute;
Surnames of persons present in court session appellate court, indicating their powers;
Date of adoption of the contested decision and the names of the judges who adopted it.
Descriptive part:
A summary of the content of the decision;
The grounds on which the complaint stated the requirement to verify the legality and validity of the decision;
The arguments (objections) set out in the response to the complaint;
Explanations of the persons participating in the case and present at the hearing.
Motivation part:
The circumstances of the case, established by the arbitration court of the appellate instance;
The evidence on which the court's conclusions about the established circumstances are based;
Laws and other regulations legal acts, which were guided by the court when making the decision;
The motives on which the court rejected certain evidence and did not apply the laws and other normative legal acts to which the persons participating in the case referred;
The reasons why the court did not agree with the conclusions of the first instance court when canceling the decision (in whole or in part).
The operative part contains conclusions on the results of the consideration appeal... The distribution is also indicated there. legal costs between the parties.
The decision is signed by the judges who considered the case.
The decree enters into legal force from the date of its adoption, but can be appealed to the cassation instance.
Copies of the resolution are sent within 5 days to the persons participating in the case.
More on topic 2. The decision of the arbitration court of the appellate instance:
- When the decision of the arbitral tribunal can be changed or canceled by the appellate instance?
- What should be indicated in the ruling of the court of the cassation instance?
- Powers of the Presidium of the Supreme Arbitration Court of the Russian Federation to review cases by way of supervision
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3. Powers of the arbitration court of the appellate instance. Grounds for changing or canceling the decision of the court of first instance. Ruling of the Arbitration Court of the Appeal Instance
Based on the results of the consideration of the appeal, the arbitration court of the appellate instance has the right (Article 269 of the APC):
1) leave the decision of the arbitration court of first instance unchanged, and appeal-without satisfaction;
2) cancel or change the decision of the court of first instance in whole or in part and adopt a new judicial act on the case;
3) cancel the decision in whole or in part and terminate the proceedings or leave statement of claim without consideration in whole or in part.
The grounds for changing or canceling the decision of the first instance arbitration court are:
1) incomplete clarification of the circumstances relevant to the case;
2) lack of proof of the circumstances relevant to the case, which the court considered established;
3) inconsistency of the conclusions set out in the decision with the circumstances of the case;
4) violation or misapplication of norms substantive law or norms procedural law.
The misapplication of substantive law is:
1) non-application of the applicable law;
2) the application of the law that is not subject to application;
3) misinterpretation of the law.
A violation or misapplication of the rules of procedural law is the basis for changing or canceling the decision of the arbitration court of first instance, if this violation has led or could have led to the adoption of an incorrect decision.
In any case, the grounds for canceling the decision of the arbitration court of first instance are (Article 270 of the APC):
1) consideration of the case by an arbitration court in an illegal composition;
2) consideration of the case in the absence of any of the persons participating in the case who were not duly notified of the time and place of the court session;
3) violation of the rules on language when considering a case;
4) the adoption by the court of a decision on the rights and obligations of persons not involved in the case;
5) non-signing of the decision by the judge or one of the judges, if the case was considered in a collegial composition of judges, or the signing of the decision by the wrong judges, who are indicated in the decision;
6) the absence in the case of the minutes of the court session or its signing by the wrong persons;
7) violation of the rule on the secrecy of deliberations of judges when making a decision.
Based on the results of the consideration of the appeal, the arbitration court of the appellate instance adopts a judicial act, called a resolution, which is signed by the judges who considered the case.
The decision of the arbitration court of the appellate instance must indicate:
1) the name of the arbitration court of the appellate instance, the composition of the court that adopted the decision; the surname of the person who kept the minutes of the court session;
2) the number of the case, the date and place of the adoption of the decision;
3) the name of the person who filed the appeal and his procedural status;
4) the names of the persons participating in the case;
5) the subject of the dispute;
6) the names of the persons present at the court session, indicating their powers;
7) the date of the adoption of the contested decision by the arbitration court of first instance and the names of the judges who adopted it;
8) summary of content the decision;
9) the grounds on which the requirement to verify the legality and validity of the decision is stated in the appeal;
10) the arguments set out in the response to the appeal;
11) explanations of the persons participating in the case and present at the court session;
12) the circumstances of the case, established by the arbitration court of the appellate instance; evidence on which the conclusions of the court about these circumstances are based; laws and other normative legal acts, which were guided by the court when making the decision; the motives for which the court rejected certain evidence and did not apply the laws and other normative legal acts to which the persons participating in the case referred;
13) the reasons why the court of appeal did not agree with the conclusions of the court of first instance, if its decision was canceled in whole or in part;
14) conclusions on the results of consideration of the appeal.
The decision of the arbitration court of the appellate instance indicates the distribution of court costs between the parties, including court costs incurred in connection with the filing of the appeal.
Copies of the ruling of the arbitration court of the appellate instance shall be sent to the persons participating in the case within five days from the date of adoption of the ruling.
The decision of the arbitration court of the appellate instance shall enter into legal force from the date of its adoption.
The ruling of the arbitration court of the appellate instance may be appealed to the arbitration court of the cassation instance.
Appeals against the rulings of the arbitration court of first instance are filed with the arbitration court of the appellate instance and are considered by it according to the rules provided for filing and considering appeals against decisions of the arbitration court of first instance, with the specifics provided for by the Arbitration Procedure Code of the Russian Federation.
Appeals against the rulings of the arbitration court of first instance on the return of the statement of claim and other rulings that impede the further movement of the case shall be considered by the arbitration court of the appellate instance within a period not exceeding ten days from the date of receipt of such a complaint by the court.
Based on the results of consideration of the complaint against the ruling of the first instance arbitration court, the arbitration court shall have the right to:
1) leave the definition unchanged, the complaint was not satisfied;
2) cancel the ruling of the first instance arbitration court and send the issue for a new consideration to the first instance arbitration court;
3) cancel the determination in whole or in part and resolve the issue on the merits.
1. Based on the results of consideration of the appeal, the arbitration court of the appellate instance adopts a judicial act, called a resolution, which is signed by the judges who considered the case.
2. The decision of the arbitration court of the appellate instance must indicate:
1) the name of the arbitration court of the appellate instance, the composition of the court that adopted the decision; the surname of the person who kept the minutes of the court session;
2) the number of the case, the date and place of the adoption of the decision;
3) the name of the person who filed the appeal and his procedural status;
4) the names of the persons participating in the case;
5) the subject of the dispute;
6) the names of the persons present at the court session, indicating their powers;
7) the date of adoption of the contested decision by the arbitration court of first instance;
8) a summary of the content of the adopted decision;
9) the grounds on which the requirement to verify the legality and validity of the decision is stated in the appeal;
10) the arguments set out in the response to the appeal;
11) explanations of the persons participating in the case and present at the court session;
12) the circumstances of the case, established by the arbitration court of the appellate instance; evidence on which the conclusions of the court about these circumstances are based; laws and other normative legal acts, which were guided by the court when making the decision; the motives for which the court rejected certain evidence and did not apply the laws and other normative legal acts to which the persons participating in the case referred;
13) the reasons why the court of appeal did not agree with the conclusions of the court of first instance, if its decision was canceled in whole or in part;
14) conclusions on the results of consideration of the appeal.
3. The decision of the arbitration court of the appellate instance indicates the distribution between the parties of court costs, including court costs incurred in connection with the filing of the appeal.
4. Copies of the ruling of the arbitration court of the appellate instance shall be sent to the persons participating in the case within five days from the date of adoption of the ruling.
6. The decision of the arbitration court of the appellate instance may be appealed to the arbitration court of the cassation instance, unless otherwise provided by this Code.
Comments to Art. 271 APC RF
1. Consideration of a case on an appeal ends with the adoption of a judicial act (resolution), which is signed by those judges who took part in the trial.
Both in the first instance and in the appellate instance, none of the judges has the authority to refrain from adopting a resolution (voting) or refuse to sign it.
Therefore, the resolution that is adopted by the majority of votes is announced. A judge who has a different opinion may state it in a dissenting opinion. A dissenting opinion is attached to the case file, but at the will of the legislator, when the decision is announced, the persons participating in the case are not brought to the notice.
2. The decision of the arbitration court of the appellate instance must meet the requirements of a formal and substantive nature.
The first group includes the attributes of the introductory part; the second group includes information of a substantive nature that is in the descriptive, motivating and operative parts of the resolution.
The practice of making decisions by the court of appeal testifies to the fact that in them an unjustifiably large volume is occupied by the descriptive part and sometimes its motivational part is negligible.
Violation procedural law in terms of the requirements for the reasoning part of the ruling of the court of appeal, is incompatible with the quality of the re-examination of the case initiated by the applicants of the appeal.
Ignoring any element of the motivational part court order gives reason to doubt its legality and validity, prevents proper verification of the contested acts in the court of cassation.
3. Taking a decision based on the results of consideration of the appealed judgment, the court of appeal resolves the issue of the distribution of court costs between the parties in the appeal instance, and, if necessary, in the court of first instance.
Court costs in the appellate instance, as well as in the first court instance, consist of the payment state duty, payment for the services of lawyers and other representatives, payments to experts, witnesses, translators and other payments made by persons participating in the case in connection with its proceedings in the arbitration court.
The general rules related to the distribution of court costs in the courts of first instance and appeal (Art. 110 of the APC), as well as the grounds for changing them (Art. 111 of the APC), are established by the legislator with a sufficient degree of specification.
4. A copy of the decision of the arbitration court of the appellate instance shall be sent to the persons participating in the case by registered mail within five days from the date of its adoption, calculated only in working days.
It should be remembered that the date of the adoption of the court decision is the signature full text motivated judicial act.
5. The decision of the arbitration court of the appellate instance shall enter into legal force from the date of its adoption.
Calculus procedural timeframes related to the consideration of the case and the distribution of copies of the court decision, as well as the establishment of the date of entry into force of the decision of the arbitration court of the appellate instance, the legislator associates with the date of signing the reasoned decision, and not the announcement of its operative part after the court leaves the deliberation room.
6. The decision of the court of appeal is not the final one on the way of checking the legality of the decision taken by the court of first instance. It only serves to end the period during which the decision of the first instance court appealed to the appellate instance does not come into legal force and is not executed if not addressed to immediate execution in the cases provided for by the procedural law.
An appeal against the ruling of the court of appeal is possible in the cassation judicial instance unless otherwise provided by the APK.
must be legal, reasonable and motivated.
Introductory part:
The name of the arbitration court of the appellate instance;
The composition of the appellate board that considered the case and adopted the decision;
The surname of the person who kept the minutes of the court session;
Case number, date and place of the decision;
The name of the person who filed the appeal and his procedural status (plaintiff, defendant, etc.);
The names of the persons participating in the case;
The subject of the dispute;
Surnames of persons present at the hearing of the court of appeal, with an indication of their powers;
Date of adoption of the contested decision and the names of the judges who adopted it.
Descriptive part:
A summary of the content of the decision;
The grounds on which the complaint stated the requirement to verify the legality and validity of the decision;
The arguments (objections) set out in the response to the complaint;
Explanations of the persons participating in the case and present at the hearing.
Motivation part:
The circumstances of the case, established by the arbitration court of the appellate instance;
The evidence on which the court's conclusions about the established circumstances are based;
Laws and other normative legal acts, which were guided by the court when making the decision;
The motives on which the court rejected certain evidence and did not apply the laws and other normative legal acts to which the persons participating in the case referred;
When canceling the decision (in whole or in part), the reasons why the court did not agree with the conclusions of the court of first instance.
The operative part contains conclusions on the results of the consideration of the appeal. It also indicates the distribution of court costs between the parties.
The decision is signed by the judges who considered the case.
The decision comes into legal force from the date of its adoption, but can be appealed to the cassation instance. Copies of the decision are sent within five days to the persons participating in the case
Concept and essence cassation proceedings
Initiation of a case in the cassation instance (subjects, objects, term and procedure for appeal). Return of the cassation appeal without consideration. Leaving the cassation appeal without movement.
The procedural purpose of cassation is to check the legality of judicial acts without establishing new circumstances of the case. The subjects are the same as in the appeal. Objects: acts that have come into legal force. The cassation has the power to send the case for a new trial if it detects a discrepancy between the conclusions of the court contained in the decision, ruling, the factual circumstances of the case, established by the courts of first instance or appeal, and the evidence in the case.
Essence: limited to checking the legality of the appealed judicial acts. There is the right to change the decision of the court of first instance or the decision of the appellate instance, cancel the adopted judicial acts and make a new decision without sending the case for a new trial.
Leaving motionless is the same.
Return:
1) the cassation appeal was filed by a person who does not have the right to appeal the judicial act in the cassation procedure / to the judicial act, which, in accordance with the APC, is not appealed in the cassation procedure;
2) the cassation appeal was filed after the expiry of the time limit for filing the cassation appeal, + contains a petition for its restoration / the restoration of the missed period has been refused;
3) a petition for return from the applicant before the determination of acceptance for production
4) the circumstances, which served as the basis for leaving the cassation appeal without movement, have not been eliminated within the time period established in the court ruling;
5) a cassation appeal is filed against a judicial act that has not been appealed to the arbitration court of the appellate instance, unless otherwise provided by this Code.
The arbitration court of the cassation instance also returns cassation appeal if an application for a deferral, payment by installments of the state fee, and for a reduction in its size is rejected.
Commentary on Article 271
1. Based on the results of consideration of the appeal, the arbitration court of the appellate instance adopts a judicial act called a resolution (part 1 of article 271 of the Arbitration Procedure Code of the Russian Federation). When the appellate court commits other actions, a ruling is issued, for example, a ruling on the return of an appeal, on the termination of proceedings on an appeal, etc.
The ruling of the court of appeal consists of four parts: introductory, descriptive, motivating, operative.
The introductory part of the ruling of the court of appeal contains information on the composition of the court, place and time judicial trial, about the participants in the process. So, in the introductory part, the following should be indicated:
the name of the arbitration court of the appellate instance;
the composition of the court that adopted the decision. Since all appellate cases are heard by three professional judges, all names with initials must be indicated;
the surname of the person who kept the minutes of the court session. In accordance with Art. 5 Federal law dated July 24, 2002 N 96-FZ, the obligation to keep the minutes of the court session and the minutes on the commission of a separate procedural action from September 1, 2002, may be assigned to a judge until the appointment of an assistant judge, and to an assistant to a judge until the appointment of a secretary of the court session. Since the staff of assistant judges is staffed in arbitration courts, the assistants must keep the minutes of the court hearings;
case number;
date and place of adoption of the resolution;
the name of the person who filed the appeal and his procedural status. By virtue of Part 1 of Art. 257 of the Arbitration Procedure Code of the Russian Federation, persons participating in the case, as well as other persons in the cases provided for by the Arbitration Procedure Code of the Russian Federation, have the right to appeal in accordance with the procedure appeal proceedings the decision of the arbitration court of first instance, which has not entered into legal force. Hence, legal position the person who filed the appeal is determined either on the basis of the first instance proceedings (plaintiff, defendant, etc.), or on the basis that his rights have been violated by a court decision;
the names of the persons participating in the case. This refers to the legal status and name of the persons who participated in the case at the first instance;
the subject of the dispute;
the names of the persons present at the hearing, indicating their powers;
the date of adoption of the appealed decision by the arbitration court of first instance and the names of the judges who adopted it.
Further, in the decision of the court of appeal, a descriptive part is highlighted, in which a summary of the content of the decision is given; the grounds on which the requirement to verify the legality and validity of the decision is stated in the appeal; the arguments set out in the response to the appeal are presented; explanations of the persons participating in the case and present at the hearing.
The reasoning part of the decision contains: analysis of the circumstances of the case, established by the arbitration court of the appellate instance; the evidence on which the court's conclusions about these circumstances are based; an indication of the laws and other normative legal acts that guided the court when making the decision; the motives for which the court rejected certain evidence and did not apply the laws and other normative legal acts to which the persons participating in the case referred.
It should also indicate and justify the reasons why the court of appeal did not agree with the conclusions of the court of first instance, if its decision is to be canceled in full or in part.
The operative part contains conclusions on the results of the consideration of the appeal, this conclusion is formulated in accordance with the powers of the court of appeal:
to leave the decision of the arbitration court of first instance unchanged, and the appeal - unsatisfied;
cancel or change the decision of the court of first instance in whole or in part and adopt a new judicial act on the case;
cancel the decision in whole or in part and terminate the proceedings or leave the statement of claim without consideration in whole or in part.
The Presidium of the Supreme Arbitration Court of the Russian Federation By its Resolution canceled the Resolution of the Court of Appeal of the Arbitration Court of St. Petersburg dated June 26, 2003 on the abolition of the ruling of the first instance court dated April 29, 2003 to terminate the proceedings in the case due to lack of jurisdiction, indicating the following.
Since the operative part of the judgment of the court of appeal does not contain conclusions on the results of the consideration by the court of the appeal, including the consideration of the case on the merits, which does not meet the requirements of paragraph 14, part 2 of Art. 271 and part 4 of Art. 272 of the Arbitration Procedure Code of the Russian Federation, then this decision cannot be recognized as a judicial act on the resolution of the dispute that has arisen.
Reshetnikova I.V., Semenova A.V., Tsaregorodtseva E.A. Commentary on miscarriages of justice in the practice of applying the Arbitration procedural code Russian Federation... S. 406 - 407.
The operative part of the decision of the arbitration court of the appellate instance indicates the distribution of court costs between the parties, including those incurred in connection with the filing of the appeal.
Despite the fact that Art. 271 of the Arbitration Procedure Code of the Russian Federation does not provide for an indication of the procedure for appeal in the decision, nevertheless, the courts do this. The operative part of the ruling of the court of appeal contains an explanation of the procedure for appealing against the ruling of the appellate instance to the cassation court.
It should be noted that the law does not provide for the possibility of postponing the issuance of a decision in in full for five days, as was done for the decision.
The ruling of the appellate instance can be explained, the misprints, misprints and arithmetic errors made in it can be corrected in the manner prescribed by the Arbitration Procedure Code of the Russian Federation. Questions about the postponement or payment by installments of the execution of the ruling of the appellate instance, about changing the method and procedure for its execution are considered by the arbitration court of the appellate instance, if these issues are resolved simultaneously with the adoption of the said ruling. In other cases, issues of postponement or payment by installments of the execution of the decision, changes in the method and procedure for its execution are considered by the court of first instance.
Copies of the ruling of the arbitration court of the appellate instance shall be sent to the persons participating in the case within five days from the date of adoption of the ruling.
2. The decision of the arbitration court of the appellate instance shall enter into legal force from the date of its adoption. In this regard, only its appeal to the arbitration court of the cassation instance or to the supervisory instance court is allowed.