Art. 325 Code of Civil Procedure of the Russian Federation describes the actions of the court, which he performs after receiving an appeal. The rules of the article apply only to courts performing the role of first instance. In civil cases, they serve as district and world courts. Consider some aspects of this stage of the proceedings.
Normative regulation
Art. 325 Code of Civil Procedure of the Russian Federation is applied subject to other articles of the code. Its content does not raise questions, but still its knowledge will save you from unnecessary questions.
Clarifications on the application are given in the Resolution of the Plenum on the stage of the appeal review in civil proceedings.
What is the difference between Art. 325 Code of Civil Procedure of the Russian Federation in a new statement? Previously, the appeal stage was envisaged for decisions of justices of the peace. A similar procedure for reviewing decisions of district courts was called cassation.
The procedure for making decisions on them was regulated by other provisions of the code. After separation of appeals and cassation procedures, the justices of the peace and district judges are subject to a unified procedure for preparing cases for review in the second instance.
Features of the article under discussion
Art. 325 Code of Civil Procedure of the Russian Federation and other related provisions of the law are criticized by lawyers. The reason is this: the judge who ruled on the case is interested in not being changed or canceled at all. However, it is he who decides whether the complaint complies with the law. He accepts objections to complaints and submissions. The collected materials are transferred to the court of second instance. Much of his actions depend on whether the case goes to the second instance.
Complaint Acceptance
The judge, having announced the decision or sent copies to the participants in the process, is waiting for the appeal to expire. During the month, the parties and other persons with an interest in the case have the right to file applications for an appeal review of the decision.
Considering the duration of sending documents by mail, the wait takes a longer time. Papers are considered to be filed with the court on the same day they are sent to the post office or courier.
Complaint Check
In addition to observing the deadline for filing, the judge also checks the fulfillment of the requirements for the complaint. They relate to content and structure. The applicant lodges a complaint according to the number of participants in the process, a receipt confirming the payment of the fee must be attached. Thus, h. 1 Article 325 Code of Civil Procedure of the Russian Federation has a reference character.
If the feed order is violated
It is fully described in Art. 323-325 Code of Civil Procedure of the Russian Federation. Upon discovering that the application for the revision of the decision does not comply with the law, the judge leaves him without movement.
Not later than 5 days later, the plaintiff is sent a court ruling indicating the errors made in the preparation of the complaint. The list should be specific.
The court gives time to correct errors. The law obliges to take into account the remoteness of the applicant's residence, the nature of the shortcomings that need to be corrected.
The only caveat about the length of time for eliminating errors is its reasonableness; no other framework has been established.
If the applicant complied with the judge’s wishes on time, the papers are considered filed on the day of the transfer of the original version of the application.
What to do if the applicant does not agree with the judge
Within 15 days from the receipt of the decision of the judge, the prosecutor or the applicant has the right to file a private complaint about the decision to leave without moving to a higher authority. If satisfied, the judge continues to prepare the case for appeal.
Return complaint
Unlike leaving without movement, this decision of the judge involves the termination of the proceedings. On what grounds is it taken:
- the applicant failed to comply in time with the judge’s request to rectify the appeal;
- the deadline for filing a complaint against a court decision has expired.
The judge has the right to return the application at the request of the applicant or the prosecutor, if the complaint was filed on behalf of the supervisory authority.
A determination is made on return. Participants in the process also have the right to file a private complaint against him within 15 days after receipt.
In the case of missing an appeal against a judicial act, some judges practice being left without movement. Although they have the right to immediately return the documents, if the applicant does not ask to restore the deadline.
The issue of restoration is decided at the hearing with the participation of the parties. If they did not appear, the judge has the right to consider the application in their absence.
Features of handling private complaints
They are transferred to the same judge whose actions have been filed. He conducts their verification and transfers to the second instance with the case materials. If the return or being left without a motion is appealed, the court has the right to consider the case without calling the parties. If there are difficulties and questions requiring clarification, the applicant and the participants in the case are summoned to the meeting.
Acceptance of Objections
The judge, having received the complaint and agreeing with its compliance with the law, sends it to the participants in the process. They are given the right to submit an answer or objection in writing. Attached are copies of documents referred to by the other party. Objections with copies of documents are filed according to the number of participants in the process. State duty is not paid.
Is filing an objection an obligation? Not. No sanctions for its absence by other participants are provided.
Member Rights
In addition, part 2 of article 325 Code of Civil Procedure of the Russian Federation provides those wishing to get acquainted with the case materials at the stage of preparing the case for appeal review.
The person involved in the case filed an application addressed to the judge who made the decision. In this capacity are understood: the plaintiff, defendant, third parties. This includes legal representatives of a minor or a legally incompetent person.
In the comments to Art. 325 Code of Civil Procedure of the Russian Federation noted the following. Another person who believes that the decision affects his interests, but did not participate earlier in the case, has the right to ask the court to submit the case for review and also to appeal.
Further actions of the court
The completion of the appeal period obliges the court to forward the materials to the second instance. For justices of the peace this is a district court, for district courts - a court of the subject.
Under the law, securities are transferred by instance after the expiration of a month. In practice, the case falls into the second instance at best after 2 or 3 months. The reason is the workload of judges.
Implementation in reality of part 3 of article 325 Code of Civil Procedure of the Russian Federation is the exception rather than the norm.
If you send the paper to the second instance
The clarification notes that the trial court is preparing the case for review. If, for some reason, the complaint is sent immediately to the second instance, then it will still be referred for examination to the first instance court. Its author is notified by letter.
Finally
The trial judge checks the compliance of the complaint with the law. If there are deficiencies, he points to them and gives time for correction.
A complaint may be returned. For both court decisions, the complainant has the right to file an application for their cancellation.
If the complaint is submitted in compliance with the law, copies are sent to the participants in the case, they are given the right to submit objections with documents to the court. The court then transfers the case to a second instance.