Anyone knows that if he is not satisfied with the decision made by the court in the first instance, then you can appeal for its review. However, fewer people already know that there is a more powerful authority that can verify the legality of a decision at the cassation stage. All this leads to the fact that many simply do not know how to file a cassation appeal in a civil case correctly, despite the fact that it is quite simple. At this stage, it is incredibly important to correctly draw up a statement, since the new judge, having studied it, must understand whether all the norms of civil and procedural law were observed in the process, and at the same time make a decision on canceling the decision on appeal or its approval. This article will examine the procedure for filing a cassation appeal in a civil case step by step.
The concept of a cassation appeal
Before you start considering the issue of filing a cassation appeal in a civil case, you should directly understand what is meant by a cassation appeal in Russian law. In fact, this is a way to appeal the decision of the court, which was issued in the first instance. At the moment in Russia there are only 2 instances that are considering this issue - the Civil Affairs Board of the Supreme Court of the Russian Federation and the Presidium of the regional judicial bodies, and they do not have the right to consider only decisions of the Supreme Court itself. It should be drawn up within six months after the court decision itself was directly issued and it entered into legal force.
Features
The submission of a complaint to the cassation instance in a civil case has a number of features that come directly from what exactly represents the cassation stage.
The first thing to do with this feature is that the cassation appeal does not directly examine the merits of the case, but only checks the fact that during the trial absolutely all the requirements of the law were met. That is why it is so important to know how to file a cassation appeal in a civil case, since the result depends more on the application itself.
In general, a cassation appeal can only be reversed in cases where:
- The rules of jurisdiction of the case were grossly violated or ignored.
- At the time of the decision, the judge used rules that should not be applied at all in this case.
- The necessary norms of civil law were not applied.
- There is a misinterpretation of legal acts.
- The court protocol was not drawn up correctly or there were violations that the law presents to the composition of the court.
- The procedural rights of the parties who were directly involved in the trial were affected.
As you can see, the appeal and the cassation have fundamentally different meanings, since their powers practically do not touch.
The legislative framework
The law clearly regulates how the correct cassation appeal in a civil case is made in the Code of Civil Procedure of the Russian Federation. This document deals with the regulation of civil proceedings, and the cassation procedure is definitely fixed in chapter 41 in article 376. It allows a person to appeal the decisions of lower courts that have entered into force in cases where the legitimate interests or rights of a person have been violated as a result of a violation of the procedure. In addition, it also says what are the deadlines for considering a complaint, the appeal procedure and requirements for the composition of the application.
The cassation stage is enshrined as the third instance in the judicial proceedings, therefore, you must first go through the process itself and dismiss the appeal.
Subjects
First of all, asking yourself how to file a cassation appeal in a civil case, you need to find out what exactly can file documents. In total, there are 2 categories of citizens who can perform this action:
- All parties to the trial that, by law, belong to the category of participants.
- Any other person whose rights have been violated, even in cases where they did not participate in previous proceedings.
In cases where the complaint comes from an entity that does not belong to any of these groups, it immediately returns and is not considered.
Place of delivery
Now that it has been clarified who exactly can file the application, it should be determined where the cassation appeal is filed in a civil case. Jurisdiction in this case is determined on the basis of Article 377, which directly states that such complaints are examined by the courts above the appellate court. The only exceptions are the decisions of the Supreme Court, which can be reviewed exclusively by the highest, supervisory authority.
In addition, it should be understood that the cassation should be given directly to the court of cassation , and not to the one where the appeal was examined. The only two options would be the bureau or board. In practice, it is the presidiums of regional courts that consider complaints in practice. There already the judge, who accepted it for consideration, directly makes a decision based on the data provided.
Drafting a statement
The most important thing in this case is how to write a cassation appeal in a civil case, since the final decision of the judge will depend on the application and its content. Before drafting a document, it is necessary to carefully study the minutes of the case and all available papers attached to the process. You should know exactly how to file a cassation appeal in a civil case and write it correctly, fully describing all the errors and inconsistencies.
Mandatory data
An example of a cassation appeal in a civil case can be found in the special literature, and the sample application is in the approved form on the official website of the cassation instance.
The required information to be indicated in this application includes:
- Name and address of the cassation instance to which the application is sent directly.
- FULL NAME. and other details of the complainant.
- Details and name of the judicial authority, the decision of which must be appealed.
- Detailed and clearly stated reasons that the court must take into account in order to decide in favor of cancellation.
- The legal framework to which the applicant refers, indicating violations of the law.
- At the very end, it is required to write the requirements that the applicant wants to satisfy as a result of the complaint.
In addition, a package of documents is required to be attached to the application itself, which is required for the implementation of the procedure for considering a cassation appeal in a civil case. It necessarily includes:
- Copies of complaints, including how many participants were initially involved.
- Copies of judicial acts of lower courts, which were necessarily certified by a judge.
- A document confirming the payment of the state duty, and if there is an exemption, then it is required to report it. The standard state duty for civil proceedings is now only 150 rubles for ordinary citizens, for legal entities it is higher - 3 thousand rubles. There is no need to pay a fee to people with disabilities, veterans and retirees in cases where they file claims with pension organizations.
- In cases where a complaint is filed by a lawyer or other legal representative, a valid power of attorney must be attached so that a person can represent the legitimate interests of the applicant.
Deadlines for submission and review
Now that it has become clear how to file a cassation appeal in a civil case, the time frame that exists in this case should be clarified. The law clearly defines what kind of limit is given for this. Now for filing the term of a cassation appeal in a civil case is equal to 6 months after it has received legal force. Therefore, in practice, it is customary to count it precisely from the day that follows the next day after the determination was made directly by the judge.
In those cases when the appellate court adopted 2 decisions - the main and the additional, then the period is calculated precisely from the entry into force of the second of them. However, even if the cassation appeal was filed on the last day of the period before 00:00, it is believed that it was drawn up and filed taking into account all existing rules of the Code of Civil Procedure of the Russian Federation.
The terms of consideration are also approved in article 382 of the Code of Civil Procedure. In general, the complaint must be considered within 1 month, if the case was not claimed, otherwise the term can be extended to a couple of months. In rare cases, the President of the Supreme Court or his deputy may extend the review period for another 2 months, but only with the demand for the case and its high complexity.
Definition
As mentioned earlier, in response to a cassation appeal, the court is required to make a determination. It is in it that the legality and validity of the judicial decision will be determined, which was adopted by a lower court and which was required to appeal by appeal. In such a definition, the following data shall be recorded:
- All details of the authorities that pronounced the verdict or the contested decision.
- A listing of all members of the judicial board that made the decision on this issue.
- Summary of the decision.
- Direct disclosure of the decision, that is, the identification of existing errors in the confirmation of their presence with links to regulatory legal acts and norms of the civil procedure code.
- The decision itself, that is, the operative part, as well as recommended directions for further proceedings. At the very end, all members of the panel of judges must affix their signature unanimously to the ruling.
Return complaint
There are frequent cases when cassation complaints are returned without review, since they simply do not meet the necessary requirements. First of all, you should always remember that this stage of the trial is not provided in order to consider the case on the merits, it only determines whether there have been violations of the law in previous instances. In addition, securities can be returned within 10 days after their receipt in the following cases:
- The application does not meet the existing requirements or in the application does not get all the required documents.
- The applicant does not belong to the category of persons who are entitled to file a cassation appeal.
- The due date for filing a complaint, which is six months after the entry into force of the sentence, has expired.
- If there is a special application for withdrawal of the cassation appeal.
All documents are returned directly to the person who sent the application and to no one else.
Conclusion
Returning to the question of how to file a cassation appeal in a civil case, having carefully studied the above information, it becomes clear that this can be done relatively easily. You should clearly know whether the applicant has the right to directly transfer the complaint to the court of cassation or whether he does not belong to the category of persons listed in the law. In addition, it is very important not to miss the appropriate deadlines for filing a complaint, and therefore it is best to immediately start compiling a statement after the appeal stage, so that in case of errors there is additional time for correction.
At the moment, all the information of interest is simple enough to find in a single legal act - the Code of Civil Procedure, which clearly regulates where, when and how exactly you need to file a complaint. In this case, it is very important to make a statement correctly. If a person is not confident in his abilities and does not think that he can make a complaint even according to the existing model, then it is best to use the services of a professional lawyer who can protect his interests in court. But if you decide to draw up the paper yourself, then you need to be very careful about its contents and all existing errors that were found in the minutes or case materials must not only be written out, but also justified, based on the existing legislative framework in the country.
The trial at the cassation stage is the third stage of the trial, which now exists in the civil process. That is why two others will first have to go through to take advantage of it and wait for the moment when the decision directly enters into force. The complaint is sent directly to the court of cassation, the judges of which, as part of the panel, consider the complaint on the merits based on the above complaints, and only then makes a decision. Therefore, it is so important to correctly formulate all the requirements and content of the complaint, because often this directly affects the determination made.