Cassation to the Supreme Court is one way to protect your rights in court. It is filed to overturn earlier decisions on the case. Its peculiarity lies in the fact that while the presidiums of the courts of the subjects are the first cassation instance.
The structure of the judicial system
The judicial system is structured as follows:
- first instance (district and justice of the peace);
- second or appellate court (district judges for the peace and judges of the subjects for the district);
- cassation instance - presidiums of the courts of the subjects working with judges reviewing appeals;
- cassation instance in the Armed Forces of the Russian Federation - performs the same tasks as the presidiums of the courts of the subjects;
- supervisory authority - judges of the Presidium of the RF Armed Forces enter its role.
It should be noted that the cassation to the Supreme Court does not replace the first cassation, its passage before applying to the country's highest court is mandatory.
What judicial acts are appealed
The appeal to the Supreme Court is directed either to all decisions taken in the case, or to some of them.
This includes decisions on cases in the form of lawsuit proceedings, special proceedings, other categories considered in accordance with the rules of the Civil Procedure Code.
Judicial orders are canceled by the judges who received them at the request of the debtor filed on time. The substantiation of the requirements of the order is essentially not considered by anyone and, accordingly, they do not fall into appeal or cassation according to the rules of the Civil Procedure Code.
Dates of going to court
Cassation to the Supreme Court is submitted after the entry into force of previously adopted acts. Only in the case of the courts of first instance do the entry into force and term of appeal coincide. Everyone knows that, as a rule, a month is given to write a complaint.
The determination or decision of the appeal takes effect immediately after the announcement. From that moment, the deadline for appeal begins. The law provides a 6-month deadline for filing a cassation appeal to the Supreme Court. During this time, it is necessary to keep within to appeal to the presidium of the court of the subject and to the judicial board of the Armed Forces of the Russian Federation.
This explains the significant gap between the time limit for appealing decisions of the cassation instance and filing a complaint with the supervisory authority (3 months after the adoption of the judicial act by the second cassation).
If the deadlines are missed
The actions of litigants are limited in time or time.
A complaint filed later than could be done is returned to the applicant without any substantive decision being made on it. It remains to write a request to restore the deadline.
What arguments are accepted? Delay in the issuance of documents by lower courts. For example, they are promised to be issued in a week, then it turns out that they are not ready, and so the time passes. After long periods of time, the decision is not given out in the hands, but sent by mail.
Late appeals to the Supreme Court of the Russian Federation are submitted more for this reason, and it is considered satisfactory.
The disease is considered respectful during hospitalization, while in the hospital.
Among the arguments of legal entities, instructions are taken on the actions of court employees, due to which a previously adopted decision was received late. All others related to the inability to find a lawyer, his absence due to illness or vacation, are considered unfounded.
Whom to ask to restore the term
In the standard scheme, the period for appeal is restored by the court, which previously decided on the case.The first instance reinstates the deadlines for appeal, the appeal for the first appeal, etc.
Appeals to the Supreme Court are possible directly. The judge has the right to decide the term, who will decide whether to send the case to the board.
The statement is attached directly to the complaint. Lawyers sometimes prefer to write a term request directly in its text. Both options are correct.
What do the judges do
If the arguments are correctly formulated and documented (copies of envelopes with the seal of the post office, etc.), the judge agrees with the request.
At the same time, the restoration of the term does not mean that the complaint will be accepted. The same judge may reject it. An unreasonable refusal to restore the time limit for appeal is actually a more serious problem for him than the dismissal of the complaint on the merits. What does it look like?
When a cassation is filed with the Supreme Court in a civil case by a court ruling, the deadline is restored, and then the merits of the complaint are rejected, not finding enough arguments in it for referral to the college.
Writing a complaint
Code of Civil Procedure obliges to fulfill a number of requirements to the content of the application:
- the name of the court where the complaint is sent (in this case, the judicial board of civil cases);
- full name of the organization or full name of the applicant and his representative, their address of actual location or residence, their procedural status (plaintiff, defendant, third party);
- name of organizations and name of citizens who participated in the case, their procedural status;
- a listing of the courts on the acts of which the complaint is filed;
- links to mistakes made by them;
- request;
- list of copies of attached documents;
- signature and filing date indicating the status of the signatory.
Some design elements
The courts and the dates of decisions and rulings that they have adopted, the case number (it does not change when passing the courts).
Errors are understood as violations of substantive and procedural law. At the same time, the reappraisal of facts and the introduction of new evidence are excluded.
The complaint is allowed to refer to the failure to comply with the rules of the Civil Procedure Code and substantive law (laws, by-laws, regulating disputed relations).
A reference to new facts, circumstances, a request to overestimate the available facts and evidence will not bring any benefit. This leads to the recognition of the complaint as unfounded.
The court has the right to declare the need to clarify new facts or reassess previously identified, if he himself comes to such a need, agreeing with the arguments about the violation of substantive or procedural law, cited by the applicant.
The law obliges to review decisions if the violations were of a substantial nature, that is, if they were not committed, the result of the case would be completely different.
Explanation that such essential conditions are given in the section of the Code of Civil Procedure of Ukraine, devoted to the appeal stage of the process.
I have to study more than one cassation instance in the Supreme Court in order to make my complaint truly substantiated. However, this does not guarantee the opening of the proceedings.
What to ask for
The law lists several options. The applicant chooses one of them that is most appropriate to the circumstances in his opinion.
- cancel all decisions previously made and close the case;
- cancel all previously adopted acts and make their decision;
- uphold one of the previously adopted acts;
- cancel the previously adopted acts and transfer the case to a new trial (more often referred to the appeal, rather than the first instance).
The judges are not limited to the request of the applicant. Some lawyers believe that complaints are received more favorably with a request to reverse the decision and refer the case for a new trial to one of the lower courts. The college needs more serious arguments to completely cancel and make its own decision. Subject to the correct establishment of the entire amount of evidence.
What documents are attached
Essential elements - certified copies of previously adopted decisions. They are issued to the participants in the process.
Copies of a power of attorney certified by a notary or an official of the organization. Without it, the complaint is automatically returned to the person who directed it.
Documents filed with a deadline and other violations await the same fate.
National tax
Statements and complaints to the court filed as part of the civil process are paid by state duty.
Art. 333.19 Tax Code sets the amount for each case. To file a cassation appeal with the Supreme Court, you must pay half the fee.
Property and non-property claims not subject to assessment:
- citizens pay 300 rubles .;
- organizations - 6000 rubles.
In cases where the subject of the dispute is assessed by a specific amount, the calculation is made in accordance with the rules of part 1 of paragraph 1 of Art. 333.19 of the Tax Code, given that only half must be paid.
A receipt can be generated directly on the court’s website using a special calculator.
The receipt of payment is attached directly to the documents, it is advisable to attach it with a stapler, or otherwise, so that when opening the envelope it is not lost.
The obligation to pay the fee affects only citizens and legal entities, authorities and prosecutors are exempted from it, including if the lawsuit or application was originally filed in order to protect the rights of citizens.
Not involved in the process
If a person has not previously participated in the process, although, in his opinion, his rights and interests are affected by a decision or decisions, the right remains to file a complaint.
He must prove that the process really concerns his rights and interests, otherwise the complaint will not be examined on the merits.
Finally
Filing a cassation appeal is a time-consuming process. First of all, it is necessary to select arguments that can interest the judge and make him open a case. At the same time, do not make the document excessively long, otherwise the assistant judge or judge will not be able to perceive its content.
In the second, draw up a complaint in the proper manner, attach a receipt and copies of decisions made earlier in the case.
Third, a headache for lawyers is the deadline for filing after appeal to the Supreme Court if the presidium of the subject court delays the issuance of documents.