It is believed that civil litigation is an indicator of the maturity of society. It indicates that people prefer to resolve disputes by legal methods. An appeal is the most important component of this phenomenon, and it has a number of features, ranging from the preparation of documents to the choice of a lawyer who can qualitatively represent the interests of his client.
Briefly on appeal proceedings
According to the laws of Russia, any court decisions may be appealed. There are two types of implementation of this action. The first is cassation. Secondly, it is an appeal to a higher court, where the case is re-examined. Disagreement with the judge may be expressed by the parties to the dispute (the plaintiff, defendant or their representatives) or third parties prescribed by law.
Document to the fullest extent of the law
Strict forms governing how an appeal should be filed are not provided for by any of the existing laws of Russia. However, in the judicial practice of production there are certain guidelines that allow the proper preparation of such documents. Consider a very simple example. Of course, it should not be appealed against him, but he will make it clear what the main points of appeal to the court should be. So here is an example sample:
- First of all, we indicate the addressee of the document (magistrate with the number of the site).
- Then, we identify ourselves (from: name of the plaintiff or defendant).
- Next, we fix the type of document submitted (appeal).
- The next item is an explanation of the reason, that is, why paper is fed. For example: "On that date, the judge of the plot (number) made a decision in favor of the defendant (plaintiff). I do not agree with the decision."
- Next, we explain what are the reasons for this.
- Finally, the appeal directly to the judge: "I ask the decision of the judge of the first instance (magistrate) to cancel."
The specifics of civil cases
An appeal in a civil case differs from similar procedures in criminal trials. The most important component of the work of the plaintiff (or his lawyer) is the implementation of the requirements of the law in accordance with the procedural rules.
If this is not the case, then the court is likely to return the appeal to the applicant. As a result, a civilian who has submitted a document that does not comply with the law may even lose the right to a case in a court of second instance. Civil proceedings are distinguished by the fact that in many cases it is simply impossible to predict a court decision (in contrast, say, to criminal trials, when evidence is usually collected at the time of trial).
Judge role
Representatives of the justice system are required to make a very deep assessment of the facts presented by the parties, taking into account the opinions and arguments of the lawyer. Many lawyers believe that an appeal in civil cases is a very promising step for the losing side, precisely in view of the initial unpredictability of the court decision.
If in the first instance the judge decided so, then it is entirely possible that his colleague will wish to express a different opinion during the appeal. An appeal in a civil case can launch the process of judicial resolution of a dispute completely diametrically.
The role of a lawyer
During the proceedings in civil proceedings, it is very likely that the judge will make a decision that will not suit any of the parties to the dispute, but in many cases this does not happen without the influence of a lawyer. The role of a lawyer is very significant at each stage of the hearing: a trial court hearing, filing an appeal, collecting materials on the case. Some lawyers believe that the percentage of lost legal disputes due to an unskilled lawyer is quite large.
It is very important, experts believe, to have a person who is able to correctly correlate factual circumstances with current judicial practice. The ability of a lawyer to correctly draw up documents is also very significant. You can give an example: appeals made with elementary errors in the text, judicial practice knows a lot. There are frequent cases when a judge made a decision in favor of the party that was able to verify the evidence on paper to a letter, while opponents (or rather, their lawyers) reacted with neglect to work with documents.
Grounds for appeal
According to the law, an appeal against a court decision may be filed if there are substantial reasons for this (of course, in the opinion of the plaintiff or defendant). We list the main ones. This may be an incorrect, incorrect determination of circumstances significant for the case under consideration. Also, the trial court may use unproven facts that may affect its decision. Another reason is that the judge could not ensure that his findings were consistent with the actual circumstances of the case.
Another reason why an appeal against a court decision is possible is that the first instance was not able to correctly apply the norms of procedural and substantive law, which entailed the adoption of an unfair decision. The listed grounds for appeal, although there are few of them, can be very capacious in content. By the way, there are legal norms by which the decision of the first court is canceled unconditionally. This is, firstly, the consideration of the case in case of illegal recruitment of the court (including the situation when someone related to the case is absent). Secondly, the court decision is canceled if the interests of persons who were not involved in the consideration of the case were affected. Thirdly, if the documents were not signed correctly by the representative of the justice, the result of the meeting is also canceled. Fourthly, if the judge circumvented the obligation to make a decision within the framework of the deliberation room, then this is also the basis for unconditionally recognizing his actions as unlawful.
Which court to apply to?
The Civil Procedure Code of the Russian Federation states that appeals against decisions of justices of the peace should be considered by district (in some regions - city) courts. In turn, if at this level the plaintiffs or defendants were not satisfied with the results of the hearings, then the case may be referred to the courts of the constituent entities of the federation (for example, regional ones).
If the decision of the judge of this instance again does not suit one of the parties to the dispute, then the case will be referred to the Supreme Court. The appeal itself is filed with a higher court through the structures of first instance, which, according to the law, transfers the case along with all the attached materials.
Timing is important.
Any lawyer knows that the first step to success in litigation is time. The appeal must be filed on time. According to the Civil Procedure Code of the Russian Federation, the plaintiff or defendant, who does not agree with the decision of the court of first instance, has a month to draw up a document expressing a position that is different from the opinion of the judge. An important nuance - at the time of filing you need to have a receipt that has already been paid state duty for appeal. Speaking about the periods for which the plaintiff should pay attention, it should also indicate the time intervals that are reserved for the court. Code of Civil Procedure of the Russian Federation determines that district courts (as well as institutions in the entities) must consider appeals within two months (from the date of adoption of the documents). The Supreme Court has 30 days more time.
What to expect from the appeal?
After the hearing in the court of second instance, the plaintiff has the right to expect one of the following scenarios. Firstly, the decision of the previous judge may be left unchanged, respectively, the complaint will remain unsatisfied. Secondly, the court of second instance can cancel or change the expression of the vision of the situation of its colleagues in the first. Thirdly, the judge considering the appeal has the right to refuse to consider the application (in whole or in part). The court of second instance, after the hearings, makes a ruling that comes into force on the same day.
Further, depending on the extent to which the decision of the judge suits the plaintiff or defendant, an appeal to the court of a higher level may be made. How can the plaintiff increase the likelihood of a positive result of the hearing? Many lawyers believe that success is at the heart of success. There is more than one example of an appeal when the texture of the arguments presented by the party that disagreed with the decision of the trial court did not withstand any criticism.
Objections - accepted
There is such a thing as a response to the appeal. In another language, these are the objections that one side of the other poses. The losing side often disagrees with the decision made by the court (which, in fact, is the reason for the appeal), even to the extent that it considers it to be inconsistent with the law. The winning party, in turn, can formulate, in its opinion, strong objections to the complaint filed by opponents in a higher court. It is possible that the arguments presented by the losing side are seen by their counterparts as completely fictitious. This, however, is a very revealing example: appeals based on the false belief of the parties that any facts exist, of course, legal practice knows a lot. The real circumstances, however, sometimes only open up during the hearings. Feedback on the appeal can be sent by mail, transmitted through the court’s documentation, and also, which is also practiced, presented directly at the meeting. However, this mechanism is fair in civil matters. If it is an arbitration process, the review should be sent by registered letter with notification.