Law, State and Law
Appeal of the CCP. The Civil Procedure Code of the Russian Federation. Appeal complaint
An appeal is a phrase that we hear much more often than we think. Looking through the transmission of court hearings or seeing similar scenes in the films, you can see that the judge often mentions this document after passing a verdict or a court decision. People who do not face litigation often do not know its meaning, and also why, where and in what time period the complaint is filed. In this article, we will analyze what is the appeal of the CCP. After all, knowledge of the subtleties of civil production will never interfere.
Appeal complaint: concept
An appeal is a document in which the parties express their disagreement with the decision made by the first instance court as a result of the proceedings. For a more detailed understanding, we will analyze the standard situation in this case. Suppose that citizen Petrov stands in the court proceedings as a plaintiff in the case of causing damage to his property. The respondent is a certain Ivanov, who does not admit guilt, but refuses to pay the material damage to the plaintiff. Ultimately, the court makes a decision that evidence against the defendant is not enough, and Petrov's suit does not satisfy. In this case, Petrov has a legitimate right to appeal the decision of the court, so he makes an appeal. The same right to file it has any party to the proceedings if it disagrees with the decision of the court.
If the court finds Defendant Ivanov guilty and awards him damages, the defendant also has the right, if he disagrees with this decision, to file an appeal. This is how the appellate procedure arises. Both sides can initiate it, as well as the prosecutor participating in the case.
The appeal of the CPC, in addition to disagreement, must also contain the requirements for the court. They can consist in changing the content of a decision or completely abolishing it. In other words, simply not to agree with the decision of the court can not. It is necessary to give reasonable arguments, indicating that the verdict was rendered incorrectly.
How to make up?
Since an appeal is a document, it must comply with the requirements established by law.
First, it must be started with the name of the court, which is served. If the document is started from another item, it may not be accepted for consideration.
Secondly, all persons participating in the trial must be mentioned in the appeal . If it is sufficient to indicate the plaintiff and the respondent when filing the statement of claim, all third parties, including the prosecutor participating in the proceeding, must be named in the appeal.
Thirdly, the appeal must contain the requisites of the court decision, which is challenged. Further on the items should be disclosed all the points in which, in the opinion of the person filing the appeal, violations of the law and the application of the rules of law were committed.
Fourth, the requirements and wishes must be specified. On them, the court will be guided by the decision.
Where can I file an appeal?
After the complaint is drawn up, a quite logical question arises: "To which court should it be submitted?" The appeal of the CCP is examined in each separate case by different courts. Complaints about the decisions of one body for the protection of rights and the interest of citizens are treated entirely different, higher.
- An appeal to the district court is filed with a view to challenging decisions taken by law enforcement agencies. In this case, the person filing the complaint should not be sent to the organization personally. She is sent to the office of the institution, which made the decision. In this case it is a world court. From this instance the complaint will be forwarded to the higher one for its further consideration.
- An appeal to the regional court or other institution of a constituent entity (city of federal significance, autonomous okrug, republic, autonomous region) is filed to challenge decisions taken by the regional body for the protection of the rights and interests of citizens.
- An appeal to the Judicial Board for the consideration of civil cases of the Supreme Court of the Russian Federation is submitted for challenging the decisions of the law enforcement bodies of the subjects of the Russian Federation, which they accepted as the court of the initial (first) instance.
- An appeal to the board of the Supreme Court of the Russian Federation is submitted for challenging decisions that were taken as an organ of the initial (first) instance by the Supreme Court of the Russian Federation.
Terms of appeal
In the criminal and civil proceedings, the time for filing an appeal is significantly different. Appeal in the civil version is possible in a month. In accordance with Article 107 and 199 (3) of the Civil Procedure Code, the countdown begins on the day following the day when the final reasoned decision of the court is adopted. This deadline ends on the same day that it was started, but next month. In other words, if the document indicates September 1, 2016, its validity period will expire on October 1 of the same year.
The person who lodged the appellate complaint has a legal right to refuse it. This can be done at any stage of the appellate proceedings, but before the ruling of the second instance court is passed. After this, it is simply not advisable to refuse a complaint. Since if errors are found in the first decision, the refusal of the complaint will not be an excuse to leave these points unattended. If the decision is left in its original form, it is not required to revoke it.
The refusal of the complaint must be filed in writing to the court reviewing it, that is, to the appellate court. If the complaint was not sent to him by the first institution, then the application will be withdrawn to the court that made the decision in the civil case.
Recovering a missed period
The legislation of the Russian Federation provides for the right to restore a missed time limit in which an appeal can be filed. To do this, a person who misses the deadlines in which an appeal can be filed must apply to the court, which is considering the case with a request for a request for the restoration of this term. Simultaneously with this statement, the appeal of the verdict itself must be filed.
First, the court will decide the issue related to the restoration of the deadline for filing a complaint, and only if a positive decision is taken will it be taken for the appeal itself. The resumption of this period is possible only if there are valid reasons that prevented the timely filing of an appeal.
Respectful reasons for the restoration of the term
Reasons can be recognized as valid in the following situations:
- In the event that the court did not properly explain to the participants, in which order and within what time frame an appeal can be filed in the civil case. Such situations in practice occur infrequently, but still take place. Since it is the duty of the court to clarify this issue to all parties to the case, if the obligations are not observed by the guilty party, the court is recognized as missing the term, therefore the parties as affected persons have the right to renew the appellate terms.
- In case a person did not have the opportunity to appeal for reasons beyond his control. For example, if he was seriously ill, was in a health care institution, detained and placed in a remand center, kidnapped, etc.
- In the event that the persons interested in the decision of the court were not present at the time of the decision and received a copy of it in time, which does not allow filing a complaint. This is possible in those situations where the court decision was not delivered by the postal staff to the addressee at the appointed time, or if the relevant documents were sent from the office of the court with a delay.
Leaving a complaint unattended
In cases where the complaint does not meet the requirements for its drafting, the court has the right not to subject the document to further consideration. Such a decision must be made within five days from the date when the complaint went to court. A decision is made in the form of a court ruling. It specifies the timeframe during which the person who filed the complaint must correct all inconsistencies with the requirements. If the CPC appeal is rectified in accordance with the law, the court will be obliged to accept it.
Objections to appeal
After the court of first instance accepts an appeal, he has a duty to send to each person participating in the case a copy of this document. This rule is clearly spelled out in Article 325 of the Code of Civil Procedure of the Russian Federation. This is done so that the participants in the case are notified of this circumstance and have the opportunity at the appointed time to file their objection to the complaint. The objection shall be filed in writing to the court that made the decision.
Appeal appeal period
The parties may submit their objection to the appeal within the time established by the court. In other words, in each separate case, the court independently decides on the issue of terms. They must be reasonable: the time of delivery of correspondence to the parties to the process, the complexity of the case and other significant circumstances are taken into account. Before this period has expired, the court has no right to refer the complaint to a higher authority for consideration.
The order of the case
After all the terms have been met, the complaint is filed further, to the court of the second appellate instance. After reviewing all documents, this body is obliged to notify the participants of the case about when and in what place the complaint will be considered.
The case is renewed, but by another court, in accordance with the same rules as last time.
Composition of court
All cases submitted to the appellate instance are considered collectively, that is, by the collegium of judges. Only regional organizations are an exception. Of the judges, there is one presiding officer - he opens the meeting and reads out all the decisions. But despite this, all the judges have an equal right to vote. Questions are resolved by voting.
The decision of the first court can be canceled or changed if, for example, mistakes were made during the conduct of the case. This may be the absence of a judge's signature on the document or the data of another official not specified in this procedure. However, only typos and formal moments can not be the reason for canceling the decision, if otherwise it is rendered correctly.
Absence in the case of the minutes of the meeting, the responsibility of which lies with the secretary, can lead to the cancellation of the court decision. It is also canceled if the judge interprets the law incorrectly. It is for the law to be interpreted correctly, and the collegial method of making a decision is applied. If the decision is made by several judges at once, the probability that the law will be misunderstood is significantly reduced.
Terms of complaint consideration
All cases considered in the court of the second (appellate) instance on civil matters must be executed within a period determined by two months from the day when the complaint went to court. It takes into account the time of receipt of the complaint in the second court. The timing of the application and the time of its consideration in the court of the initial (first) instance in this case are not taken into account.
Otherwise the situation is only with the Supreme Court of the Russian Federation. For him, the deadline is not more than three months. This is due to the fact that the Supreme Court is considering the most complex complaints.
Appeal of the decision of the Court of Appeal
The decision of the Court of Appeal, as well as in the first case, can be appealed. In practice, this happens infrequently, as the parties usually stop at the appellate stage. In the event that this does not happen, the persons file a complaint already against the decision of the court of appeal. It is called cassation.
In order to file a cassation appeal, a six-month period has been established from the day when the decision of the second instance court was rendered.
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