Appeal to the Kemerovo Regional Court sample. Judicial acts and decisions - Kemerovo regional court (Kemerovo region). Appeal in a civil case sample, form, standard form
Referee: Kiklevich S.V. Case #33-8250
Speaker: Chudinova T.M.
APPEALS DETERMINATION
Judicial Collegium for Civil Cases of the Kemerovo Regional Court
consisting of: presiding Chudinova T.M.,
judges: Pastukhova S.A., Suchkova I.A.,
under the secretary Nazarenko O.V.,
having heard in open court on the report of Judge Chudinova T.M. civil case on a private complaint of Olga Alexandrovna Gorshkova
to the determination of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region
at the request of Zheltoukhova Albina Nikolaevna on the restoration of the deadline for filing a cassation appeal,
SET UP:
Zheltoukhova A.N. applied to the court for reinstatement procedural term to file a cassation complaint, motivated by the fact that she missed for a good reason the deadline for filing a cassation complaint on the appeal ruling from 03.11.2016 in the case of the claim Gorshkova Oh.A. to Zheltoukhova A.N. on the recognition of the contract of sale as invalid, since she is legally illiterate, she has nowhere to live and, accordingly, send a complaint with a specific address.
Zheltoukhova A.N. supported the statement at the hearing.
Gorshkova O.A. objected to the reinstatement.
The representative of a third party, who did not make independent claims regarding the subject of the dispute, the Federal Migration Service for the Kemerovo region in the city of Prokopyevsk, as well as the prosecutor, did not appear at the hearing.
Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region, dated June 09, 2017, decided:
To restore Albina Nikolaevna Zheltoukhova the procedural time limit for filing a cassation appeal against the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region, dated August 08, 2016, and the appeal ruling of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court, dated November 03, 2016.
In a private complaint Gorshkova Oh.A. Requests the ruling of the court to cancel, referring to the fact that the court had no reason to restore the defendant missed the deadline for filing a cassation complaint.
The defendant has permanently lived and still lives in a private house at<адрес>owned by the defendant and her son.
In addition, the defendant had the opportunity to hire a lawyer to file a cassation appeal. The defendant earlier, when filing a counterclaim with the court to recognize the transaction as invalid, issued a power of attorney to represent their interests in court FULL NAME1 , which is engaged in private legal practice. FULL NAME2 was a representative Zheltoukhova A.GN at lawsuits.
The Judicial Collegium for Civil Cases of the Kemerovo Regional Court clarified to the defendant in the court session when issuing the appeal ruling the time limits for appealing against the ruling. The defendant was personally present at the court session and could not but hear about the explanations of the court.
In accordance with par. 1 hour 3 tbsp. 333 Code of Civil Procedure of the Russian Federation private complaint considered by the court court of appeal without notifying the persons involved in the case.
Having studied the materials of the case, having discussed the arguments of the private complaint, the Judicial Board finds the court's ruling to be canceled on the following grounds.
In accordance with Part 2 of Article 376 of the Code of Civil Procedure of the Russian Federation, court decisions may be appealed to a court of cassation within six months from the date of their entry into force, provided that the persons referred to in Part 1 of this Article have exhausted other methods of appeal established by this Code court order until the date of its entry into force.
By virtue of Part 4 of Article 112 of the Code of Civil Procedure of the Russian Federation, an application for the restoration of the missed procedural period established by Part 2 of Article 376, Part 2 of Article 391.2 and Part 2 of Article 391.11 of this Code shall be filed with the court that considered the case in the first instance. The specified period can be restored only in exceptional cases, when the court recognizes valid reasons for missing it due to circumstances that objectively exclude the possibility of filing a cassation or supervisory appeal within the prescribed period (serious illness of the person filing the complaint, his helpless condition, etc.), and these circumstances had place within a period not later than one year from the date of entry into force of the appealed court decision.
It follows from the materials of the case that by the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region of 08.08.2016 it was decided:
“The claims of Olga Alexandrovna Gorshkova against Albina Nikolaevna Zheltoukhova on recognition as having lost the right to use the residential premises, eviction and deregistration are partially satisfied.
Recognize Zheltoukhova Albina Nikolaevna,<данные изъяты>who has lost the right to use residential premises - an apartment located at:<адрес>
To evict Albina Nikolaevna Zheltoukhova,<данные изъяты>, from a dwelling - an apartment located at:<адрес>
In the rest of the claim to the defendant Zheltoukhova A.GN. refuse.
Refuse to satisfy Albina Nikolaevna Zheltoukhova's counterclaim against Olga Aleksandrovna Gorshkova on recognizing the sale and purchase agreement as invalid” (volume 1 pp. 176 - 187).
Appeal ruling of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court of 03.11.2016 upheld the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region of 08.08.2016, the appeal of Zheltoukhova A.N. - without satisfaction (volume 1 case files 217-221).
11/18/2016 materials of the civil case No. 2 -562 / 2016 at the suit of Gorshkova O.A. to Zheltoukhova A.N. on recognition as having lost the right to use the premises, eviction and deregistration, counterclaim Zheltoukhova A.GN. to Gorshkova O.A. on the recognition of the sale and purchase agreement as invalid, were received by the Rudnichny District Court of the city of Prokopyevsk, which is confirmed by the stamp of the court of registration of incoming correspondence.
On December 5, 2016, A.N. Zheltoukhova applied to the Rudnichny District Court of Prokopyevsk with an application for a deferment of the execution of the court decision (volume 1 case file 224).
By a court ruling dated 12/16/2016, A.N. Zheltoukhova’s application was partially satisfied, a deferment was granted for the execution of the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region, dated 08/08/2016 for a period until 03/01/2017 (volume 1 pp. 248-251).
By the decision of the judge of the Kemerovo Regional Court dated May 15, 2017, it was returned without consideration appeal Zheltoukhova A.N. to the appeal ruling by the Judicial Collegium for Civil Cases of the Kemerovo Regional Court dated 03.11.2016 and the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region dated 08.08.2016, received by the Kemerovo Regional Court on 04.05.2017, due to non-compliance with the requirements of clause 3 h 1 tbsp. 378 Code of Civil Procedure of the Russian Federation (volume 2 case file 6). since the appeal sent Zheltoukhova A.GN. in last days term appeal, the applicant explained the provisions of Article. Part 2 Art. 376, part 4 of Art. 112 Code of Civil Procedure of the Russian Federation.
06/02/2017 Zheltoukhova A.N. applied with this application for the restoration of the procedural term (volume 2 pp 3 - 4).
Satisfying statement Zheltoukhova A.GN. on the restoration of the deadline for filing a cassation appeal against the above court decisions, the court proceeded from the fact that the statutory deadline for filing it was missed for a good reason.
However, the Judicial Board finds this conclusion of the court erroneous.
In paragraphs 8, 10 of the Resolution of the Plenum of the Supreme Court Russian Federation dated 11.12.2012 No. 29 “On the application by courts of the norms of civil procedural legislation governing proceedings in the court of cassation”, it was clarified that, based on the provisions of part 2 of article 376, paragraph 3 of part 1 of article 379.1, article 382, paragraph 6 of part 1 of article 390 of the Code of Civil Procedure Russian Federation, the six-month period for cassation appeal against court decisions that have entered into legal force is the same for appealing court decisions in cassation, and filing a cassation appeal, presentation to the Judicial Chamber for Administrative Cases, to the Judicial Chamber for Civil Cases or to the Military Collegium of the Supreme Court of the Russian Federation after an appeal against judicial decisions to the presidium of a regional or equivalent court does not entail its recalculation. Based on the provisions of Part 4 of Article 112 of the Code of Civil Procedure of the Russian Federation, this period can be restored at the request of both an individual and a legal entity, and only in exceptional cases, when the court recognizes valid reasons for missing it due to circumstances that objectively exclude the possibility of filing a cassation complaint within the prescribed period. In a relationship individuals participating in the case, such circumstances may include, in particular, a serious illness, a helpless condition, other circumstances relating to the personality of the applicant, as well as other circumstances beyond the control of the person, due to which he was deprived of the opportunity to file a cassation complaint in a timely manner. court.
By establishing a six-month time limit for filing a cassation complaint, the legislator proceeded from the fact that a person, exercising due diligence and conscientiousness in exercising the rights granted to him by law, has the opportunity to calculate the time necessary for him to appeal a court decision in cassation. The restoration of the procedural term is guaranteed to persons who objectively did not have the opportunity to file a complaint within the period established by law.
Thus, the possibility of restoring the period for appealing court decisions in cassation is associated with the presence of exceptional circumstances that occurred after the entry into force of judicial acts.
By virtue of the provisions of Art. 56 of the Civil Procedure Code of the Russian Federation, evidence confirming the existence of valid reasons for missing the statutory deadline for cassation appeal should have been submitted by the applicant, which was not done.
There are no circumstances in the case file that are directly related to the applicant's personality, which would actually prevent her from preparing and filing a complaint within the time limit set for challenging the court decision to the court of cassation.
In the application for the restoration of the missed procedural term Zheltoukhova A.GN. as the reasons for missing the deadline for cassation appeal against judicial acts, he refers to legal illiteracy, lack of a permanent place of residence.
However, the panel of judges believes that these circumstances cannot be regarded as valid reasons that objectively prevent the defendant from exercising his right to cassation appeal in a timely manner.
As follows from the case file, Zheltoukhova A.GN. personally attended the court session of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court dated November 3, 2016, the court explained to the persons participating in the case, their procedural rights, including the right and procedure for appealing the appeal ruling. In addition, Zheltoukhova A.N. took part in the consideration of the case by the court of first instance on the merits of the dispute, including through participation in court hearings of her representative by proxy FULL NAME3
Thus, the circumstance of the applicant's legal illiteracy is not grounds for restoring the procedural term for filing a cassation appeal and the arguments of Zheltoukhova A.GN. do not indicate the impossibility of filing a cassation appeal in a timely manner and are not a good reason for missing the deadline.
The applicant's reference to the fact that, due to the impossibility of living at the place of registration, she did not have a permanent place of residence, which made it difficult to send and receive mail, cannot be taken into account. The Judicial Board finds noteworthy the arguments of a private complaint Gorshkova Oh.A. that the defendant permanently lived and lives to the present in a private house at the address:<адрес>which is also confirmed by the materials of the case, according to which Zheltoukhova A.N. indicated the address of her residence<адрес>(Volume 1 case sheet 191).
Thus, the circumstances indicated by the applicant do not affect the essence of the resolution of the application for the restoration of the procedural term.
The applicant did not provide evidence that, acting reasonably and in good faith, she encountered circumstances that prevented the timely filing of the cassation appeal, and therefore, the trial court had no legal grounds to satisfy the request and restore the deadline.
In this regard, the court of appeal comes to the conclusion that the ruling of the court of first instance was canceled and the application for the restoration of the missed procedural deadline for filing a cassation appeal was denied, since the deadline for appealing against the court decisions held in the case by way of cassation was missed by the applicant without good reason.
Zheltoukhova A.N. did not show a sufficient degree of care and discretion regarding the issue of timely appeal against court decisions in cassation, although, due to the circumstances of the case, she should and could do this.
Under such circumstances, the ruling of the court cannot be recognized as illegal, it is subject to cancellation with the resolution of the issue on the merits.
Guided by Art. 334 Code of Civil Procedure of the Russian Federation, Judicial Board
ABOUT D E L I L A:
Determination of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region dated June 09, 2017, to cancel, to resolve the issue on the merits.
Refuse Zheltoukhova Albina Nikolaevna to satisfy the petition to restore the missed deadline for filing a cassation appeal against the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region of August 08, 2016 and the appeal ruling of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court of November 03, 2016 in a civil case on lawsuit Gorshkova Oh.A. to Zheltoukhova A.N. about the recognition of the contract of sale as invalid.
Presiding: T.M. Chudinov
Judges: S.A. Shepherds
I.A. Suchkova
Placement decision
judicial act on the website of the Kemerovo Regional Court
in case No. 33-8250
Decision
Signature of the judge confirming the decision
Place in full, as the text of the decision is subject to publication (Part 3, Article 253 of the Code of Civil Procedure of the Russian Federation, Article 35 of the Law of the Russian Federation "On the Mass Media", Part 2 of Article 15 of the Federal Law of December 22, 2008 No. 262-FZ, as amended by dated June 28, 2010).
Place with the removal of personal data of the participants in the process, except for the names and initials of the plaintiff, defendant, third party, civil plaintiff, civil defendant, convicted, acquitted, the person in respect of whom the proceedings are being conducted on an administrative offense, the secretary of the court session that considered (considered) the case of judges (judges), as well as the prosecutor, lawyer and representative, if they participated in the trial (part 3 of article 15 of the Federal Law of December 22, 2008 No. 262-FZ, as amended on June 28, 2010).
Place with the exception of information containing:
- state or other secrets protected by law (commercial, tax, banking, medical, notary, lawyer, audit, insurance, adoption, will, correspondence, telephone conversations, mail, confession, pawnshop, etc.).
– other information of limited access (information about events and circumstances of private life, personal, family secrets, confidential information about the population in census forms, as well as information that became known to employees of social service institutions when providing social services, etc.).
(part 4 of article 15 of the Federal Law of December 22, 2008 No. 262-FZ as amended on June 28, 2010).
(Underline whatever applicable)
Do not post, as the judicial act was issued in cases:
1) affecting the security of the state;
2) arising from family legal relations, including in cases of adoption (adoption) of a child, other cases affecting the rights and legitimate interests of minors;
3) on crimes against sexual inviolability and sexual freedom of a person;
4) on limiting the legal capacity of a citizen or on recognizing him as incapacitated;
5) on compulsory hospitalization of a citizen in a psychiatric hospital and compulsory psychiatric examination;
6) on the introduction of corrections or changes in the record of acts of civil status;
7) on the establishment of facts of legal significance, considered by courts of general jurisdiction;
8) resolved in accordance with Article 126 of the Civil Procedure Code of the Russian Federation.
Compliance with all stipulated rules regarding the submission of this document is advocated. Failure to comply with them may result in the plaintiff or defendant forfeiting the right to such a procedure.
What is an appeal?
There are 2 concepts of appeal: it is considered as a procedure for appealing against a court decision or as a document initiating it. Considering the topic, it is necessary to dwell on the 2nd definition.
An appeal is a document drawn up according to certain rules, in which the applicant requests to cancel or change a first instance court decision that has not entered into legal force. It has a number of distinguishing features.
All of the above features are mandatory.
The difference between an appeal and a cassation
Along with the appeal, the cassation complaint is often mentioned. Persons who are not professionals do not always distinguish them. A citizen who is not privy to legal subtleties can identify both of these documents and not think about what a cassation or an appeal is. There is a reason for this: they have a number common features. Appeal and cassation are similar in the following:
- both documents can be submitted for the purpose of overturning the decision of the court of first instance;
- similar rules apply for appeal and cassation;
- the range of entities entitled to submit these complaints is identical.
It is not difficult to distinguish between such complaints. The main feature of each of them is the question of the entry into force of the decision of the court of first instance. Cassation is an appeal against the current act, and an appeal is filed if the deadline for its application has not come.
Another difference is the possibility of presenting additional evidence. If the consideration of the appeal implies the possibility of attaching new materials, then the cassation involves the study of the court decision for compliance with the procedural rules within the framework of the evidence in the case.
Important
Appeal and cassation should be distinguished in terms of timing. An appeal against the current decision is possible within six months, and the deadlines for sending a document on the cancellation of a decision that has not entered into force cannot be more than 1 month.
When can you appeal against a court decision?
The stage of appealing against an act that has not entered into force is provided for in all types. An appeal is possible:
- in criminal proceedings;
- when considering cases on administrative offenses;
- during civil litigation.
- within the framework of arbitration proceedings.
Before filing an appeal as part of a case, you should review the rules set out in the relevant code. They take into account the specifics of each type of legal proceedings, so a number of rules for compiling, designing and sending have significant differences.
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Administrative appeal
The rules governing the procedure for contesting a court decision in an administrative case are established by Section 6 of the CAS RF. submitted within one month from the date of acceptance full text contested act.
If during the final meeting only the operative part of the document was announced (the judge imposed a punishment without reading out his arguments), the contestation period will begin to be calculated from the date indicated in the full text.
There are other deadlines as well.
- Decisions on deportation of foreigners, on cases related to administrative supervision, involuntary hospitalization in psychiatric institutions, as well as in cases of dissolution of municipal bodies, can be challenged within 10 days.
- If the adopted act concerns the issues of conducting election campaigns and voting, the appeal period is 5 days.
- Appeal filed within 15 days when the decision was made in a simplified manner.
The law allows for the transfer of a document to the court office, as well as its sending by mail (the date of circulation will be the stamp on the envelope made by the employee who accepted the letter). Another way is to apply to the court through its online portal.
How to write an appeal against a court decision, sample
Requirements for the content of the complaint are set out in Art. 299 CAS RF. Any template can be used to complete the introductory part of the complaint.
The beginning of the document states:
- the full name of the court in which the decision will be challenged;
- information about the applicant (full name, place of residence, telephone and other means of communication);
- information about other persons who took part in the consideration of the case in the first instance.
The following is the gist of the complaint. Each case has its own characteristics, so a document template will not always be useful. Before filing an appeal against a court decision, it is advisable to consult with a lawyer who specializes in such cases. The content of the complaint is as follows:
- it must contain the reasons for applying to a higher court;
- the document must contain the arguments of the applicant, who considers the challenged act unjust;
- the complaint must contain demands for the annulment of the original decision.
In conclusion, a list of annexes to the document is given.
How to appeal a court decision
How to file a criminal appeal
The appeal procedure has a number of peculiarities. The procedure for filing an appeal in a crime case is established by Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation.
- The document is sent directly to the court of the next instance.
- An appeal against the decision of the court can be filed within 10 days after the verdict. If the applicant is in custody, then this period begins to be calculated from the moment a copy of the act is handed over to him.
The cost of errors and inaccuracies in the document may be the freedom of a citizen or his property well-being. For this reason, it is recommended to involve a lawyer who has proven himself well in such cases in drafting and filing a complaint.
How to write an appeal against a court decision in a civil case
Appeal of judicial acts that have not entered into force in civil cases is provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation. The law establishes the following features of challenging decisions:
The requirements for the content of the document are similar to the rules relating to administrative proceedings. The complaint must contain information about the authority considering it, the parties, the applicant's arguments and his requirements, as well as a list of materials accompanying it (documents, receipts for submission, etc.).
Filing an appeal in arbitration cases
Challenging decisions in civil cases in the economic sphere is regulated by Chapter 34 of the Arbitration Procedure Code of the Russian Federation. Unlike civil proceedings, the arbitration process involves sending a document directly to the court of appeal.
The total term for challenging the act is 30 days from the date of production of its full text. The appeal period will be limited to 15 days if the decision was made under the summary procedure.
Additionally, you can study information about which.
The document can be submitted through the office, sent by mail or through the website of the court.
Deadlines for considering an appeal
The law limits the period during which a complaint must be considered. For administrative cases, it is 2 months from the date of receipt of materials. If the consideration of the appeal is carried out by the Supreme Court, then the period is 3 months.
A similar procedure is established for civil cases.
A 2-month limitation is provided for when considering appeals in the arbitration process. The law allows the possibility to extend this period up to 6 months, if it is a large number participants or other circumstances that make it difficult to consider the case.
Complaints filed in connection with sentences are subject to review within a 30-day period. If the Supreme Court acts as the appellate instance, then the period for the implementation of the procedure is extended to 45 days.
Fee for filing an appeal
One of the conditions for contesting a court decision is the payment of a fee prescribed by law. The state duty for an appeal is established in chapter 25.3 of the Tax Code of the Russian Federation.
Its size is connected not with the sphere of legal proceedings, but with a specific institution of Themis. The state duty for filing an appeal, which is sent to the courts of general jurisdiction, is 150 rubles for citizens and 3,000 rubles if the decision is contested by a legal entity.
If the case relates to economic disputes, different rules will apply. State fee for an appeal court of Arbitration will amount to 3,000 rubles, regardless of the status of the applicant.
Before contesting any decision, it is necessary to check that all required documents are present. It is also important to establish whether the state duty has been paid correctly. An appeal against a decision of an arbitration court or another institution of Themis will be left without movement if the stipulated payment is not transferred in accordance with the details.
An appeal against a court decision in a civil case, taking into account recent changes in legislation. Find out the rules for filing an appeal, download a sample complaint, including a completed one, read an example of an appeal, ask questions about its execution to lawyers.
What is an appeal against a court decision
An appeal is a complaint against a court decision that has not entered into legal force.
An appeal is filed in case of disagreement with the decision of the court. Can be filed against the decisions of any courts considered at first instance. Such a complaint may be filed against decisions of justices of the peace, district and city courts, regional, regional and republican courts, as well as against decisions of the Supreme Court of the Russian Federation.
Persons who participated in the consideration of a civil case may file an appeal. The rest of the citizens can file a complaint only if the decision will affect their rights and obligations, they will have to substantiate this fact in detail in the text of the complaint (article of the Code of Civil Procedure of the Russian Federation)
The appeal is considered by a higher instance - the court of appeal. The list of courts of appeal is given in the article of the Code of Civil Procedure of the Russian Federation. Based on the results of the consideration of the complaint, the decision may be canceled, changed or left unchanged. The result of the consideration of the complaint is formalized by the appeal ruling. The issuance of an appeal ruling means the entry into force of the court decision.
The decision of the district court can be appealed to a higher court within 1 month from the date of its adoption. The term begins to run from the moment the reasoned decision is made. Usually, at the court session, the judge announces only the operative part of the decision, postponing the preparation of the full decision for up to 5 days. The judge announces the date of production of the decision in the final form when the decision is announced at the end of the court session. If this is not done, it is necessary to clarify the date of production of the reasoned decision in court upon receipt of a copy of the decision.
Note! |
How to file an appeal against a district court decision
An appeal is drawn up after receiving and studying a reasoned court decision. This will allow you to understand the logic of the court when making a decision, evaluate its arguments and criticize the circumstances established by the court. Without a reasoned decision, the appeal will be superficial and meaningless.
Sometimes, if the court delays the production of a reasoned decision, a brief appeal is drawn up, which formally must take into account all the requirements for an appeal, but may not contain a complete justification of the applicant's position. Such a complaint is made in order not to miss the deadline for appeal. Then it will be possible to draw up an additional appeal, already with a full justification of the position of the complainant.
Header of the appeal against the decision of the court
The appeal must indicate the name of the court where it is filed. The name of the court for appeal is usually indicated at the end of the court decision, in this form: “The decision of the court can be appealed within 1 month to ….. the court.” If this name is not indicated, then you can always find it yourself. So decisions of district and city courts are appealed to regional, regional, republican courts. For example, in the Moscow Region, appeals are filed with the Moscow Regional Court, Krasnodar Territory- to the Krasnodar Regional Court, and in Tatarstan - to the Supreme Court of the Republic of Tatarstan. In St. Petersburg and Moscow, appeals against decisions of district courts are filed with the St. Petersburg or Moscow City Court, respectively.
The appeal shall contain the full details of the applicant submitting it. This is a surname, name and patronymic without abbreviations, sounding as indicated in the passport. This is the address of the applicant's place of residence or location, to which the court will send a notice of the time and place of the case in the appellate instance.
The complaint must indicate its name - so that the court has no reason to take it for another document. The decision of the court that is being appealed must be indicated. The name of the court decision must contain the date of the decision, the name of the court that issued it, the details of the plaintiff and the defendant, and the essence of the plaintiff's claims. The name of the solution is usually written in the installation part of the solution before the words: “Install”. For example, the decision of the Tverskoy District Court of Moscow dated June 17, 2016 in a civil case on the claim of Ivan Ivanov against Petrov Petr Petrovich for the recovery of debt under a loan agreement.
The content of the descriptive part of the appeal
In the descriptive part of the appeal, it is necessary to state the grounds on which the applicant does not agree with the conclusions of the court and considers the conclusions of the court to be incorrect.
In writing the narrative, one can simply describe why the court's decision appears to the applicant to be unlawful and subject to change or annulment. But it is better to take as a basis the grounds for canceling the decision listed in the article of the Code of Civil Procedure of the Russian Federation. Having found suitable grounds for cancellation, you can fill them with content, taking into account the specific circumstances of a civil case.
It is not necessary to re-cite the decision of the court in the appeal. It is already in the case, the judges on appeal will definitely get acquainted with it, citing excerpts and quotations from the decision will simply clutter up the text of the complaint and make it difficult to understand. Try to make the descriptive part short, in fact, so that it is clear what moments the court of second instance should pay attention to, what exactly the applicant does not agree with. From the practice of lawyers good content the appeal will be a text of no more than 3 pages of printed text.
Requirements in an appeal
After the grounds for cancellation in the text of the appeal, the requirements stated by the submitter of this complaint must be given. Requirements cannot be arbitrary. they must comply with the powers of the appellate court (article of the Code of Civil Procedure of the Russian Federation). It is better to bring your requirements completely identical to those. which are specified in the law.
Thus, the following claims can be made in the appeal:
- cancel the decision of the court of first instance in full and issue a new decision on the case;
- cancel the decision of the court of first instance in part and make a new decision on the case;
- change the decision of the court of first instance in whole or in part and make a new decision on the case;
- cancel the decision of the court of first instance in full and terminate the proceedings;
- cancel the decision of the court of first instance in part and terminate the proceedings in the case of the part;
- cancel the decision of the court of first instance in whole or in part and leave the application without consideration in whole or in part.
When a partial annulment or change of the court decision is required, the appeal shall indicate in which part the applicant asks to cancel or change the court decision.
The above requirements correspond to the powers of the court of second instance, other requirements cannot be stated, this will be contrary to the requirements of the procedural law and they cannot be considered by the court of appeal.
The requirements in the appeal are indicated after the words: "Please." It is better if several requirements are numbered and divided among themselves. If a new decision is required in the case, then the applicant must indicate in the requirements how it should sound. For example: "Make a new decision in the case, in which the plaintiff's claims are completely denied."
Documents attached to the appeal under the Code of Civil Procedure of the Russian Federation
After the requirements of the complainant, it is necessary to list all the documents attached to the appeal, it is necessary to attach copies of the complaint. Copies are attached according to the number of persons participating in the case.
Also attached to the appeal is a receipt for payment of the state duty. if the applicant is not exempt from payment.
Other documents, as a rule, are not attached to the appeal, since they are already in the materials of the civil case. If there is a need to attach additional evidence that was not presented in the case or was presented but rejected by the court of first instance, a petition for additional evidence must be drawn up. Such a petition can be given in the text of the complaint or issued as a separate document (then indicate this petition as an attachment to the complaint).
At the end of the appeal, the applicant must sign and date the appeal. The compilation date does not have to be the same as the filing date.
Filing an appeal against a court decision in a civil case
An appeal against a court decision is filed through the same court that heard the civil case. It is the judge of this court who decides on the possibility of accepting the complaint, performs the actions provided for by the article of the Code of Civil Procedure of the Russian Federation, and then sends the complaint along with the civil case to the court of appeal. If the complaint was sent to the court of appeal, it will still be returned to the court that considered the civil case to decide whether to accept it.
The term for filing an appeal, as already noted, is 1 month from the date of production of a reasoned court decision. The missed appeal period may be reinstated at the request of the applicant, which is filed simultaneously with the complaint.
Note! |
After filing an appeal, you need to wait for it to be accepted. If the complaint is accepted, the complainant will receive a notice of the assignment of the case to the appellate instance. When leaving a complaint without movement, it is necessary to correct its shortcomings. And if the complaint is returned, you need to look at the grounds for the return and either restore the deadline or submit it to another body. an appeal against the court ruling on the return of the complaint is not ruled out.
Complaint to the Court of Appeal - additional materials
In addition to the complaint itself and knowledge of its preparation and filing, the applicant will need additional information on consideration of a complaint in a court of appeal, on the procedure for appealing against court actions related to the acceptance and consideration of an appeal against a court decision in a civil case. Attention should be paid to the specifics of filing an appeal to justices of the peace.
Sample of an appeal under the Code of Civil Procedure of the Russian Federation
Download an appeal form. Fill it out according to your situation. It is necessary to strictly comply with the requirements for the content of the complaint, the attached documents and the deadlines for filing.
AT __________________________________
(name of court of 2nd instance)
From: _________________________________
(full name, address)
"___" _________ ____, the court made a decision in a civil case on the claim _________ (name of the plaintiff) to _________ (name of the defendant) about _________ (indicate the essence of the claims).
Court decision _________ (indicate how the case was resolved on the merits).
I believe that the court made an illegal decision on the following grounds _________ (indicate what the applicant does not agree with in the decision, why the court decision is illegal, what laws were applied by the court when resolving the case incorrectly, what circumstances were not clarified, what evidence was not examined by the court).
Based on the foregoing, guided by articles -, the Civil Procedure Code of the Russian Federation,
- Cancel the decision _________ (name of the court) dated "___" _________ ____ in a civil case on the claim _________ (name of the plaintiff) to _________ (name of the defendant) about _________ (substance of claims).
- Make a new decision on the case, which _________ (indicate how the case should be resolved in the appellate instance).
Petition:
When considering an appeal, I ask you to accept additional evidence in the case _________ (give a list of additional evidence) that will confirm the following circumstances _________ (indicate legally significant circumstances in the case that can be confirmed by the evidence presented). I was not able to present the listed evidence earlier for the following reasons _________ (indicate the reasons that prevented the submission of additional evidence to the court of first instance).
List of documents attached to the appeal (copies according to the number of persons participating in the case):
- Copy of the appeal
- Document confirming the payment of the state fee
- Additional evidence
Complaint filed date "___"_________ ____ Applicant's signature _______
Frequently asked questions about filing an appeal
How many pages should an appeal be?
There is no limit on the size of an appeal. You can write it on one page or on several. However, I advise you to write it concisely and to the point. Reading a large number text makes it difficult to understand.
Is a statute of limitations only admissible in a court of first instance? Can I claim this in an appeal?
The limitation period is applied by the court only at the request of the party to the dispute, made before the court makes a decision. In the appellate instance, this application can be considered only if the court decision is annulled. therefore, if there are other grounds for cancellation, for example, failure to notify of the time and place of the case, you can also claim that the deadline was missed in the appeal
The Court of Appeal completely canceled the decision of the court of first instance in a civil case, since Art. 113 of the Code of Civil Procedure, while the new decision completely repeats the canceled decision of the first instance. What norms of the law did the court violate, on which to rely on the appeal to the cassation instance?
The Court of Appeal may issue a decision similar to that adopted by the Court of First Instance, if the only violation is the improper notification of the persons participating in the case, and in fact the decision of the court is correct and the substantive law is applied correctly.
I don't understand why I have to file a complaint through the district court? That is, I have to write the same court again in a hat? Or even the address of a higher court?
The appeal is addressed to a higher court, and it is indicated in the header of the complaint, including the address. The complaint is physically filed with the court that made the decision.
Is it necessary to reattach copies of the documents already available in the case file to the appeal in a civil case? Or is just a copy of the new documents sufficient?
A civil case is sent to the court of appeal together with the complaint. The court of second instance will examine all the materials of the case, therefore, it is not necessary to attach documents that are already in the case. New evidence may be attached to the appeal only if the complaint substantiates the impossibility of presenting it to the court of first instance.
Can witnesses be heard on appeal?
The question of the interrogation of witnesses is solved in the same way as the question of the presentation of additional evidence. If their absence from the court of first instance was due to valid reasons, then they can be filed with the court of appeal, but this will need to be substantiated in detail. The same applies to the moment of re-examination of witnesses. They can be interrogated in the appeal again only on questions that were not asked in the first instance. This needs to be explained in great detail.
Can this form of appeal be used in a criminal case? Or an appeal in a case of an administrative offense?
The submitted sample appeal can only be used to appeal against decisions in civil cases. In other cases, a different law, different content of the complaint and other requirements apply.
from 31/12/2018
In case of disagreement with the results or procedure for the consideration of the case, the participants in the case file an appeal against the court decision. This is the first stage of the appeal. Without which all others simply will not take place.
Let us make a reservation right away that the examples of courts given in the article and the procedure for filing a complaint are valid until 2019. Indeed, on July 30, 2018, amendments to the Law on the Establishment of Courts of Appeal and Cassation of General Jurisdiction came into force. Due to the need to resolve personnel issues, the law will “work” in full no later than October 2019.
As long as everything stays the same. All judgments rendered in the first instance are subject to appeal. The general term for filing an appeal is 1 month from the date of production of a reasoned decision.
The appeal is drawn up in the form regulated by law and in compliance with the requirements for its content. The procedure for filing a lawsuit has also been established. Without compliance with the requirement, the court will not begin consideration of the complaint. Therefore, to draw up a document, use the provided sample and read the recommendations of lawyers.
Example of an appeal
To the Moscow Regional Court
Dolgoprudny, st. Maiskaya, house 6, apt. 6,
tel. 89000000006
address: 141700, Moscow region,
Dolgoprudny, st. June, house 6, apt. 8,
tel. 89000000008
APPEALS AGAINST THE DECISION OF THE COURT
dated May 15, 2019 in civil case No. 2-1254/2019
On May 15, 2019, the Dolgoprudnensky City Court of the Moscow Region issued a judgment in civil case No. 2-1254/2019 on the claim of Konstantinov I.O. to Egorov S.A. about reclamation of property from someone else's illegal possession.
Court decision requirements Konstantinova AND.Oh. satisfied. Purchase and sale transaction between Konstantinov AND.Oh. and Egorov S.A. declared invalid, the disputed property was claimed in favor of the plaintiff. Ownership of Egorova S.A. the property has been terminated.
I do not agree with the decision of the court, I consider it illegal and unreasonable for the following reasons. The court incorrectly determined the circumstances relevant to the case. The court concluded that the parties entered into a contract of pledge of property. And the sale and purchase transaction was essentially feigned. However, the pledge agreement has nothing to do with this dispute, it is an independent transaction.
The conclusions of the court that the property became the property of the defendant do not correspond to the circumstances of the case. In fact, the disputed property is in the possession and use of a third party O.Yu. Petrova, with whom the transaction was actually completed. The court incorrectly applied the norms of substantive law, namely Articles 182, 971 of the Civil Code of the Russian Federation. A representative by proxy does not acquire property under a transaction concluded by him on behalf of another person into his own property.
The case was considered in an illegal composition, since it was accepted by the Dolgoprudnensky city court in violation of the rules. In fact, the price of the claim is 30,000 rubles. (the value of the disputed property), so the claim must be considered by the justice of the peace at the place of residence of the defendant.
The case was considered in the absence, which was not notified of the time and place of the court session, there is no information about this in the case file. In addition, there is no date from 10/15/2015 in the case file.
The committed significant violations of the norms of substantive and procedural law, the incorrect definition of significant circumstances, the inconsistency of the conclusions with the actual circumstances do not allow the court decision to be recognized as lawful and justified. The decision is subject to cancellation on the grounds listed in Article 330 of the Code of Civil Procedure of the Russian Federation.
Guided by articles 320-322, 328, 330,
Cancel the decision of the Dolgoprudnensky City Court of the Moscow Region dated May 15, 2019 in a civil case against Konstantinov AND.Oh. to Egorov S.A. on the recognition of the sale and purchase transaction as invalid, the recovery of property from someone else's illegal possession.
Take a new decision in the case, which in satisfaction of claims Konstantinov AND.Oh. refuse in full.
Appendix:
Copies of the appeal - 2 copies.
Date 06.06.2018 Signature Egorov
The document is drawn up in writing. Even if sent through electronic services (now this option is available in almost every court).
In the “header” of the complaint, the applicant indicates the court that will consider the case. An appeal against the decisions of justices of the peace is considered by a higher district court. The decision of the district court, adopted at first instance, is considered for legality by a higher court of the constituent entity of the Russian Federation.
The person filing the complaint must write in full his last name, first name and patronymic, as well as the place where he lives at the time of the preparation and submission of the document. The text must indicate the full details of the court decision that is being appealed, namely: the name of the court that made the decision, the case number, the name of the plaintiff and the defendant, the essence of the claims. This data can be copied from the complained.
The appeal must necessarily contain requirements - this is what is written after the word “please”. Such requirements may be: cancellation of the court decision in whole or in part with the adoption of a new decision, with the termination of the proceedings or with the application left without consideration.
The complaint must indicate the grounds for canceling the decision. The list of grounds is established by Article 330 of the Code of Civil Procedure of the Russian Federation. Take it as a basis, applying it to a specific court decision and your situation.
At the end, a list of attached documents must be given, the complaint must be signed by the person filing it with his own hand, and the date of filing with the court is indicated.
Features of the appeal against the decision of the court
Both court decisions and rulings are appealed on appeal. For definitions, a special procedure is provided, while submitting.
Filing an appeal
An appeal is filed with the court that issued the contested decision. You do not need to send documents to a higher court yourself.
When filing an appeal, personally mark the acceptance of documents by the office worker on your copy of the complaint, which you prudently take with you to court. If the complaint is sent to the court by mail, do so by certified mail with acknowledgment of receipt. Then it will be known when the documents were received by the court.
A prerequisite is the attachment of copies of the complaint according to the number of persons participating in the case. The appeal is paid by the state fee, the original receipt is also attached. You do not need to attach documents that are already in the file. In the appellate instance, the entire civil case will be investigated.
The progress of the appeal should be monitored. If the complaint is left without movement, it is necessary to obtain a copy of the court ruling in a timely manner and make the necessary amendments within the prescribed period. When returning the appeal, the court also issues a ruling in which it indicates the reasons for such a procedural action.
Acceptance and consideration of a complaint
The court of first instance, after receiving the appeal, decides whether it is possible to accept the complaint. Checks that there are no grounds for leaving without movement or returning documents. If the appeal is accepted, the judge puts a mark on the complaint itself, which is then filed into the file.
After that, copies of the documents are sent to the persons participating in the case. After the expiration of the period for appeal, the materials of the civil case are sent to the court of appeal.
The court of appeal shall notify the persons participating in the case of the time and place judicial trial. The case is considered according to the rules of the first instance, ends with the issuance of an appeal ruling. From the moment of issuing such a ruling, the court decision, if it is not canceled, is considered to have entered into force. If the decision is reversed, the appeal decision resolves the case on the merits, it acquires the force of the decision.
The appeal ruling can be appealed to a higher authority by filing.
What is the difference between an appeal against a decision of a justice of the peace
An appeal against a decision of a justice of the peace is no different from an appeal against a decision of a district court. Such a complaint is filed through a justice of the peace, but is addressed to the district court. An appeal against a decision of the justice of the peace is heard on general rules appeal proceedings.
It should be taken into account that magistrates have the right not to draw up a complete decision without a statement from the persons participating in the case. Therefore, within 3 days from the date of the announcement of the operative part of the decision by the justice of the peace, it is necessary to submit an application for drawing up a reasoned decision.
Based on the results of consideration of an appeal against a court decision, the district court issues an appeal ruling, which can only be appealed to the cassation instance.
Clarifying questions on the topic
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