In Art. 390 Code of Civil Procedure of the Russian Federation (as amended) secured the powers of the cassation instance. In many ways, they coincide with those provided for the court of appeal. However, there are significant differences. Consider further Art. 390 Code of Civil Procedure of the Russian Federation with comments 2016
The content of the norm
In the first part of Art. 390 Code of Civil Procedure of the Russian Federation provides for possible actions of the cassation instance after considering the complaint / submission. The court has the right:
- Leave the contested decision of the first instance, appeal or cassation unchanged, and the complaint / submission, respectively, dismissed.
- To cancel the appealed judicial act in part or in full, to forward the case materials for reconsideration. In this case, the cassation body must report on the need for a new judge or the composition of the court.
- To cancel the decision in part or in full, to leave the application without consideration or to terminate legal proceedings in the case.
- Leave one of the judicial acts in force.
- To cancel the challenged decision and make a new one without transferring the case for reconsideration. This action is allowed if the complained act made a mistake in the interpretation / application of substantive rules.
- Leave the complaint / submission without consideration if there are grounds established by Art. 307.1 Code of Civil Procedure.
Regulatory requirements
According to Part 2 of Art. 390 Code of Civil Procedure of the Russian Federation, in the course of the proceedings, the cassation body must verify the correct interpretation and application of the substantive and procedural legal norms by the instances that have considered the dispute, as part of the complaint / submission arguments.
To ensure legality, the court may go beyond the circumstances set forth in the application. At the same time, the cassation instance cannot verify the legality of the decisions in the non-appealed part, as well as the lawfulness of acts that are not in dispute.
The court cannot consider it proven or establish circumstances that are not confirmed or rejected at the first or appeal level, prejudge questions about the unreliability (reliability) of any fact, the advantage of evidence over others, and also determine the content of the decision to be adopted upon repeated consideration.
For a body that parses a dispute again, the instructions of the cassation body on the interpretation of legislative norms are mandatory.
Art. 390 Code of Civil Procedure of the Russian Federation with comments
The cassation body is obliged to leave the decision unchanged, the complaint / submission, respectively, unsatisfied if, in the course of their consideration, it comes to the conclusion that the lower court did not commit significant violations of the procedural and substantive rules. P. 1, Art. 390 Code of Civil Procedure of the Russian Federation is applied if the shortcomings of the judicial act do not affect the outcome of the case.
Such violations are called material, without which the protection and restoration of the interests and rights of the applicant are impossible.
Submission of materials for review
In practice, Art. 390 and 387 Code of Civil Procedure of the Russian Federation are used together. The last norm enshrines specific grounds for the cancellation of the contested decisions in the cassation instance. Such a situation is possible if the court reveals significant violations of substantive and procedural law.
We are talking about such shortcomings that did not allow the lower authority (appellate body, for example) to properly check the validity and legality of the act issued in the first instance, and the arguments presented in the complaint / submission. These, in particular, include improper notification of the parties about the place, time of the meeting, illegal proceedings, etc.
These procedural violations act as the basis for the transfer of the case, in accordance with Art. 390 Code of Civil Procedure of the Russian Federation, to the cassation instance for reconsideration.
Important point
The cassation court should not send the case materials for reconsideration to the appellate or cassation body if they have illegally canceled the justified and legal act of the first instance. In such a situation, unlawful decisions / decisions are subject to revocation. The ruling of the first instance should be upheld.
Special cases
According to Art. 390 Code of Civil Procedure of the Russian Federation, the decision of the first instance, appeal or cassation can be canceled partially / completely, leaving the complaint / submission without consideration or termination of legal proceedings is allowed in case of violations of the procedural rules established in Articles 220 and 222 of the Code.
Retention of one of the provisions
This procedure is enshrined in paragraph 4 of Art. 390 Code of Civil Procedure of the Russian Federation. It assumes that the cassation body restores the legal force of the act adopted earlier, and the decision that repealed it recognizes it as null and void. This provision applies to decisions that have not entered into force.
For example, cassation cancels the appeal ruling issued by the district court and upholds the decision of the magistrate court.
It should be said that the wording of paragraph 4 of the considered norm should not be interpreted literally. In practice, situations are quite possible, when the cassation body upholds several decisions adopted by lower instances. For example, in the event of cancellation of an act issued by the presidium of the regional court, the legal effect of the decision of the district court and the appeal ruling of the regional court are restored.
Case study
When making a decision to amend a resolution adopted earlier, or to adopt a new act, the cassation body must proceed from the facts established in the first instance.
In many cases, however, new circumstances are established in the court of appeal. In such situations, the cassation body, when changing or adopting a new act, should proceed from these facts. The court itself does not have the right to establish circumstances other than what was done in the appeal or first instance.
Abandonment
On the grounds provided for in Article. 397.1 of the Civil Procedure Code, cassation may leave the complaint / presentation without an examination of the merits. Such a situation, for example, is possible upon receipt of a request for the return of an application or in the event of its withdrawal. Cassation in this case makes an appropriate determination.
Complaint / Submission Limits
According to the general rules, the court resolves only those issues that are reflected in the application. This order is valid at all levels of the judiciary. Accordingly, the cassation bodies are no exception.
According to part 2 of the commented article of the Civil Procedure Code, the court is not authorized to verify the lawfulness of the judgments in so far as they are not disputed, as well as the legality of the acts that are not appealed. In other words, even if there will be significant violations in them, if the subject does not declare them, they will not be studied.
However, if the impugned part of the decision is determined by another part of the act, which the applicant does not dispute, the latter is also subject to investigation. In this case, the presence / absence of the plaintiff’s request does not matter.
Bans
If the challenged decision is canceled and the case materials are sent for a new consideration, the cassation body does not have the right to predetermine the content of the future decision. This restriction is due to the principle of independence of judges. In their work, authorities are obliged to be guided exclusively by the letter of the law.
In addition, the cassation body is not authorized to predetermine issues related to the reliability of evidence, the advantage of some circumstances over others. Since the court directs the case for reconsideration, all these points must be resolved by the appropriate authority.
Within the meaning of the commented norm, only instructions that relate to the interpretation of substantive and procedural legal norms can be binding on lower bodies. All other orders and recommendations are not taken into account. This ensures the impartiality of the judicial authority re-examining the case.