The decision of the court of appeal of the agrarian and industrial complex of the Russian Federation. Powers of the arbitration court of appeal. Resolution of the arbitration court of appeal

must be legal, justified and motivated.

Introductory part:

Name arbitration court appellate court;

The composition of the appeal board that considered the case and adopted the decision;

The name of the person who kept the minutes of the court session;

Case number, date and place of adoption of the decision;

Name of the person who filed the appeal and his procedural position(plaintiff, defendant, etc.);

Names of persons participating in the case;

Subject of dispute;

Names of persons present at the meeting court of appeal, indicating powers;

Date of adoption of the appealed decision and the names of the judges who adopted it.

Descriptive part:

A summary of the contents of the decision;

The grounds on which the complaint requests verification of the legality and validity of the decision;

Arguments (objections) set out in the response to the complaint;

Explanations of persons participating in the case and present at the court hearing.

Motivational part:

The circumstances of the case established by the arbitration court of appeal;

Evidence on which the court’s conclusions about the established circumstances are based;

Laws and other regulations legal acts which the court was guided by when making the decision;

The reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;

When canceling a decision (in whole or in part), the reasons why the court did not agree with the conclusions of the trial court.

The operative part contains conclusions about the results of the consideration of the appeal. It also indicates the distribution legal expenses between the parties.

The resolution is signed by the judges who considered the case.

The resolution comes into force 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

The concept and essence of 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 progress.

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 entered into legal force. Cassation has the authority to send the case for a new trial if there is a discrepancy between the court's conclusions contained in the decision, resolution, the factual circumstances of the case established by the courts of first instance or appellate instance, and the evidence available in the case.

Essence: limited to checking the legality of appealed judicial acts. There is the right to change the decision of the court of first instance or the decision of the appellate instance, to cancel adopted judicial acts and make a new decision without sending the case for a new trial.

Leaving without movement is the same.

Return:

1) cassation appeal filed by a person who does not have the right to appeal judicial act in cassation proceedings/against a judicial act, which, in accordance with the Arbitration Procedure Code, is not appealable in cassation proceedings;

2) the cassation appeal was filed after the expiration of the deadline for filing a cassation appeal, + contains a request for its restoration / restoration of the missed deadline was denied;

3) a request for return from the applicant before the decision on acceptance for production

4) the circumstances that served as the basis for leaving the cassation appeal without progress have not been eliminated within the period established in the court ruling;

5) a cassation appeal was filed against a judicial act that was not appealed to the arbitration court of appeal, unless otherwise provided by this Code.

The arbitration court of the cassation instance also returns the cassation appeal if the request for a deferment or installment payment is rejected state duty, about reducing its size.

It contains db:

1) name of the court's arbitration court appeal instance, composition of the court that adopted the decision; the name of the person who kept the minutes of the court session;

2) case number, date and place adoption of a resolution;

3) name of the person,who filed the appeal, and its procedural position;

4) names of luvd;

5) item spore;

6) names of persons present to the court hearing, indicating their powers;

7) the date of adoption of the appealed decision by the court of 1st instance and the names of the judges who adopted it;

8) summary of contents the decision made (describe part);

9) the grounds on which the claim was made in the AJ on checking the legality and validity of the decision (OD);

10) arguments, set out in the response to the appeal (OC);

11) explanations Luvd and those present at the court hearing (CH);

12) circumstances of the case established by the Arb Court of the appellate instance;proof on which the court's conclusions about these circumstances are based; laws and other regulatory legal acts that the court was guided by when making the decision; the reasons why the court rejected certain evidence and did not apply the laws and other regulatory legal acts referred to by the persons participating in the case (reasoning part);

13) motives, for which the appellate court did not agree with the conclusions of the court of 1st instance, if its decision was canceled in whole or in part (MC);

14) conclusions on the results of the consideration of the appeal(resolution) - the conclusion is formulated in accordance with the powers of the appellate court:

= leave the decision of the arbitration court of first instance unchanged, and the appeal complaint - without satisfaction;

=reverse or change the decision of the court of first instance in whole or in part and adopt a new judicial act in the case;

= reverse the decision in whole or in part and terminate the proceedings or leave the statement of claim without consideration in whole or in part.

In the decision of the Arb Court the appeal instance indicates the distribution of court costs between the parties, including the court costs incurred in connection with filing an appeal.

The decision of the arbitration court of appeal comes into force from the date of its adoption.

60. Concept and essence of cassation proceedings

Essence of the stage: Activity cassation court and participants in the process checking the legality of judicial acts that have entered into legal force arbitration courts first instance, appellate and cassation instances.

Signs:

= cassation proceedings- one of ways to review judicial acts, joined legal force;

=cassation proceedings are carried out by a special unit judicial system - federal arbitration courts of districts;

= procedural task cassation proceedings - legality check judicial acts;

= item cassation proceedings are judicial acts that have entered into legal force;

=necessary basis for excitement cassation proceedings - person's cassation appeal, endowed with the right of cassation appeal

Meaning cassation proceedings - creating another level of checking the correctness of the solution+ Arb the district courts are completing the task formation of uniform practice within the district.

61. Initiation of a case in the district arbitration court in cassation procedure(subjects, objects, period and procedure for appeal). Return of the cassation appeal without consideration. Leaving the cassation appeal without progress.

Subjects of the right of cassation appeal

1. Persons involved in the case - the parties, applicants and interested persons (in cases of special proceedings, in cases of insolvency (bankruptcy) and in other cases provided for by the APC), third parties, declaring self requirements;prosecutor–even if I didn't participate in the consideration of a case in court 1st instance; state bodies, local self-government bodies, other bodies and organizations, citizens are not individual entrepreneurs,

2. Successors parties, third parties

3. Judicial representatives

4. Persons not involved in the case, but whose rights were violated by a court decision

Objects rights cassation appeal: =Decisions of the arbitration court of first instance which have entered into legal force - Condition of appeal in cassation: if so the decision was the subject of consideration in the arb court of the appellate instance or if the arb court of the appellate instance refused to restore the missed deadline filing an appeal = Resolution of the arbitration court of appeal

= The decisions of the IPC that have entered into legal force, accepted by it as a court of first instance

Term

No more than 2 months from the date of entry in force

at the person's request, time limit MB is restored provided that the application is submitted no more than 6 months later from the date of entry into force of the act appealed by the court or, if the petition was filed by a person not involved, but the rights of the cat were violated, from the day when this person learned or should have known about a violation of his rights and legitimate interests of the appealed judicial act.

Before the deadline established by this Code for filing a cassation appeal, the case cannot be reclaimed from the arbitration court.

Arb district courts (10 of them)–are considering regarding the complaint

SIP as a court cas instance considers:

1) affairs, considered by him as the court of first authorities;

2) cases on the protection of intellectual rights considered by arbitration courts subjects Russian Federation as a court of first instance, arbitration courts of appeal.

The cassation appeal is filed through the arbitration court who has made a decision or decree that sends materials to the cassation court authorities within 3 days– (difference from the gr process - where the complaint is filed directly with the court of higher instance)

The issue is decided by the judge alone in the 5th term from the date of its receipt. Based on the results of the review, a determination is made:

=About acceptance appeal

=About leaving without movement

=About the return

Return cassation appeal without consideration:

Cassation appeal filed by an unauthorized person to appeal a judicial act in the manner of cass proceedings, or filed against a judicial act, which, in accordance with the Arbitration Procedure Code, cannot be appealed in order of cash production;

Cas complaint filed after the deadline filing a cassation appeal and does not contain a request for its restoration or the restoration of the missed deadline is denied;

=before the ruling is made on the acceptance of a cassation appeal for proceedings by the arbitration court of cassation from the person who filed the cassation appeal, a petition was received for her return;

=the circumstances that served as the basis for leaving the cassation appeal without progress have not been eliminated, within the period established in the court ruling;

Cas complaint filed against a judicial act that was not appealed to the arbitration court court appeal authorities.

The Arb Court of Cassation also returns the complaint if the application for a deferment, installment payment of the state duty was rejected, about reducing its size.

The arbitration court rules on the return of the cassation appeal determination, MB appealed to the Arb Court Cas Inst.

After eliminating the circumstances which served as the basis for the return of the cassation appeal, the right to re-apply to it remains. But only in cases where it is possible to eliminate the circumstances that were the basis for returning the cassation appeal. For these reasons, the right to re-apply cannot be exercised if the applicant does not, by virtue of law, have the right to appeal a judicial act against which a cassation appeal has been filed.

Leaving the cassation appeal without progress.

Grounds – violation of the requirements of the article of the APC regarding the form and content of QOL.

From the analysis of the articles of the APK, QZH MB is left without movement if:

=face, who signed the cassation appeal, did not provide properly executed and confirmed authority to sign it;

In QOL requirements for checking legality are not formulated the judicial act being appealed and the grounds on which the judicial acts are being appealed are not stated, with reference to laws or other regulatory legal acts, the circumstances of the case and the evidence available in the case;

TO QOLs are not attached:

A) documents, confirming payment of state duty

b) documents, confirming direction or delivery to other persons, participating in the case, copies of the cassation appeal and documents that they do not have.

Leaving a complaint without consideration allows the person who committed formal violations to correct the violations committed during the registration of the cassation complaint without returning it to the applicant.

A determination is made regarding leaving the QOL without movement. This determination is made single-handedly judge of the instance. Appeal against nizya

Subject to the elimination of deficiencies within the period established by the court, the cassation appeal shall be deemed submitted on the day of its initial receipt. This means that the specified period is excluded from the procedural period during which a cassation appeal can be filed, i.e. there is no threat of missing the deadline for appeal.

Section VI. PROCEEDINGS FOR REVIEW OF JUDICIAL ACTS OF ARBITRATION COURTS

Chapter 34. PROCEEDINGS IN THE ARBITRATION COURT OF APPEALS

Article 271. Resolution of the arbitration court of appeal

1. Based on the results of consideration of the appeal, the arbitration court of appeal 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 appeal, the composition of the court that adopted the decision; the name of the person who kept the minutes of the court session;

2) case number, date and place of adoption of the decision;

3) the name of the person who filed the appeal and his procedural position;

4) names of persons participating in the case;

5) the subject of the dispute;

6) the names of the persons present at the court hearing, indicating their powers;

7) the date of adoption of the appealed decision by the arbitration court of first instance and the names of the judges who adopted it;

8) a summary of the content of the decision made;

9) the grounds on which appeal a demand was made to verify the legality and validity of the decision;

10) the arguments set out in the response to the appeal;

11) explanations of persons participating in the case and present at the court hearing;

12) the circumstances of the case established by the arbitration court of appeal; evidence on which the court's conclusions about these circumstances are based; laws and other regulatory legal acts that the court was guided by when making the decision; the reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;

13) the reasons why the appellate court did not agree with the conclusions of the first instance court, 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 appeal indicates the distribution of legal costs between the parties, including legal costs incurred in connection with filing an appeal.

4. Copies of the decision of the arbitration court of appeal are sent to the persons participating in the case within five days from the date of adoption of the decision.

5. The decision of the arbitration court of appeal comes into force from the date of its adoption.

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.

(edited) Federal Law dated July 27, 2010 N 228-FZ)

The decision of the arbitration court of appeal is a judicial act that is adopted based on the results of the consideration of the case.

Like any judicial act of an arbitration court, it must be legal, justified and motivated (see Art.

Part 3 art. 15 Arbitration Procedure Code of the Russian Federation).

The Arbitration Procedure Code of the Russian Federation establishes the range of issues that must be contained in the resolution (Article 271).

Introductory part:

Name of the arbitration court of appeal;

The composition of the appeal board that considered the case and adopted the decision;

The name of the person who kept the minutes of the court session;

Case number, date and place of adoption of the decision;

The name of the person who filed the appeal and his procedural position (plaintiff, defendant, etc.);

Names of persons participating in the case;

Subject of dispute;

The names of the persons present at the court hearing of the appellate court, indicating their powers;

Date of adoption of the appealed decision and the names of the judges who adopted it.

Descriptive part:

A summary of the contents of the decision;

The grounds on which the complaint requests verification of the legality and validity of the decision;

Arguments (objections) set out in the response to the complaint;

Explanations of persons participating in the case and present at the court hearing.

Motivational part:

The circumstances of the case established by the arbitration court of appeal;

Evidence on which the court’s conclusions about the established circumstances are based;

Laws and other regulatory legal acts that the court was guided by when making the decision;

The reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;

The reasons why the court did not agree with the conclusions of the trial court when canceling the decision (in whole or in part).

The operative part contains conclusions about the results of the consideration of the appeal. It also indicates the distribution of legal costs between the parties.

The resolution is signed by the judges who considered the case.

The resolution comes into force from the date of its adoption, but can be appealed to the cassation authority.

Copies of the resolution are sent within 5 days to the persons participating in the case.

Comments to Art. 271 Arbitration Procedure Code of the Russian Federation

1. The consideration of the case on 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 appeal, none of the judges has the authority to abstain from making a decision (participating in voting) or refuse to sign it.

Therefore, the resolution adopted by the majority of votes is announced. A judge who has a different opinion may express it in a dissenting opinion. The dissenting opinion is attached to the case materials, but at the will of the legislator, when the resolution is announced, it is not brought to the attention of the persons participating in the case.

2. The decision of the arbitration court of appeal 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 found in the descriptive, motivational and operative parts of the resolution.

The practice of making decisions by the appellate court indicates that the descriptive part occupies an unreasonably large amount of them and sometimes its motivational part is negligibly small.

Violation procedural law in terms of the requirements for the reasoning part of the decision of the appellate court, is incompatible with the quality of the re-examination of the case at the initiative of the applicants of the appeal.

Ignoring any element of the motivational part court order gives reason to doubt its legality and validity, and prevents proper verification of the appealed acts in the cassation court.

3. When making a decision based on the results of consideration of the appealed court decision, the appellate court resolves the issue of distribution of legal costs between the parties in the appellate 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 payment of state fees, payments 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 arbitration court.

The general rules related to the distribution of legal costs in the court of first and appellate instances (Article 110 of the APC), as well as the grounds for changing them (Article 111 of the APC), are established by the legislator with a sufficient degree of specificity.

4. A copy of the decision of the arbitration court of appeal is 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 adoption of the court decision is the signing full text motivated judicial act.

5. The decision of the arbitration court of appeal comes into force from the date of its adoption.

Calculus procedural deadlines 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 appeal, the legislator associates it with the date of signing the reasoned decision, and not with the announcement of its operative part after the court leaves the deliberation room.

6. The decision of the appellate court is not the final one on the way to verifying the legality of the decision made by the court of first instance. It only serves to end the period during which the decision of the court of first instance, appealed to the appellate instance, does not enter into legal force and is not executed, unless addressed to immediate execution in cases provided for by procedural law.

An appeal against the decision of the appellate court is possible to the cassation court. court, unless otherwise provided by the APC.

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