Procedure for considering an appeal in a civil case

After the decision of a federal court of general jurisdiction enters into legal force, the parties to the dispute have at least a month to appeal the decision. The appeal is submitted to the court of appeal, which has the power to overturn the verdict of the general court. But before going to the appellate court, the following factors must be taken into account:

not all appeal disputes are considered in court hearings;
the plaintiff's main arguments are violations by federal judges;
the defendant is obliged to prove the validity of the verdict;
additional evidence cannot be presented, that is, the decision is made on the basis of the documents presented at the first meeting;
the list of legal requirements cannot contain nuances that were not discussed during the first hearing.

In what cases should you prepare to speak at a meeting?

The algorithm for resolving a dispute by the court of appeal depends on the method of proceedings by which the first instance made the final decision. In particular:

In the case where the first instance resolved the dispute in a general manner, the appellate court is also authorized to schedule a general hearing. Each participant whose interests are affected by the verdict receives a summons to appear for consideration of the complaint.
As practice shows, an appeal against a decision made in a simplified manner occurs at the request of the appellate judge. A meeting may be scheduled with the participation of all interested parties, but in most cases the complaint is considered without the presence of third parties.
Preparing the writ is the responsibility of the federal court, but it may deny the applicant's request. In this case, the person has the right to appeal the refusal, but this happens without the announcement of the meeting, but in absentia.

How to behave at a court hearing

It is necessary to initially understand that the procedure for considering a dispute and the decision-making algorithm of the appellate court are significantly different. The judge at the hearing does not reconsider the case in essence, but only confirms/annuls the legality and validity of the decision made.

Therefore, there is no need to re-prepare fiery speeches and start an argument with the defendant. The most important thing is to prove that the first instance made a significant mistake that affected the outcome of the paperwork. To annul a decision, it is sufficient to confirm only one violation, which is supported by evidence. The decision of the appellate judge will largely depend on the papers submitted by the complainant.

For its part, the defendant, that is, the party who is completely satisfied with the decision made, can bring counter arguments indicating that the decision was made correctly. You need to speak clearly and to the point, which is due to the small amount of time allotted for resolving the dispute.

Appeal determination

Based on the results of consideration of the appeal, the court makes an appeal ruling. It becomes binding immediately after its announcement, since it comes into force immediately. What should be contained in it is determined by Art. 329 Code of Civil Procedure of the Russian Federation.

What the appellate court can rule:

Refuse the complaint and leave the decision unchanged.
Cancel the decision in whole or in part and make a new one.
Cancel the decision in whole or in part and terminate the proceedings.

So, consideration of an appeal in a civil case can be carried out if one of the participants in the process has doubts about the legality and validity of the decision of the court of first instance. At the same time, it is not always transferred to a higher court for consideration - it may be left without movement or returned. If the complaint is submitted for consideration, as a general rule, the period for consideration is 2 months in any appellate court, except for the Supreme Court of the Russian Federation, which is given up to 3 months for this. The time limit in both cases begins to run from the moment the case, along with the complaint, is received by the appellate court.

This is important to know: The right of cassation appeal in civil proceedings under the Code of Civil Procedure of the Russian Federation

Even more materials on the topic can be found in the “Appeal” section.

Useful rules

Naturally, each party is interested in making a decision in its favor, but the court is obliged to be guided only by the letter of the law.

Analysis of practice allows us to highlight the following nuances that help protect your interests in the appellate court:

an abbreviated presentation of the essence of the dispute only highlighting important aspects (excessively prolonged speech is tiring and does not allow you to concentrate on important points);
documents should not be read out (the judge has plenty of time to read them on his own);
preparing your speech in advance, which will allow you to highlight only the essential points;
a summary of the facts, which should not exceed ten minutes;
lack of personal opinion and speculation;
Paying special attention to the judge’s list of violations will allow the appeal to immediately draw attention to the violations;
mention of judicial practice and decisions of judges adopted in relation to similar conflicts;
speech must be literate without hesitation (slow and clear speech makes you think about the essence of the dispute);
preparation of links to individual pages of the main record keeping, allowing to confirm/refute the violation on the part of the first instance;
ignoring disputes with defendants.

Restrictions

As noted above, the appellate court does not consider the very essence of the dispute, but only analyzes the legality of the decision made by the court of first instance, therefore a number of restrictions are provided for the participants. Namely:

the subject of the claim cannot be changed;
it is prohibited to divide, ignore or add requirements;
it will not be possible to change the amount of claims;
there is no right to file counterclaims;
the participants remain the same, that is, it will not be possible to attract other plaintiffs or defendants.

During the appeal hearing of the dispute, the court will confirm the presence of significant procedural violations. In this case, in accordance with Resolution of the Plenum of the Supreme Arbitration Court No. 36 of May 28, 2009, the judge begins to consider the case according to the algorithm of the court of first instance.

The procedure for considering a case in the court of appeal

Beginning of the meeting. The first actions of the presiding officer:

opens the meeting;
announces the case under consideration, as well as against the decision of which court the appeal was filed;
finds out which of the persons participating in the case (their representative) is present;
establishes the identities of those present;
checks the powers of officials;
Explains to those present their rights and responsibilities.

Next, the presiding officer (or one of the judges) states:

circumstances of the case;
content of the decision of the court of first instance;
the arguments of the appeal and the objections received regarding it;
the content of new evidence presented to the court;
reports other data that the court needs to consider to verify the decision of the trial court.

Hear explanations from the persons involved.
The evidence available in the case is disclosed
New evidence accepted by the court is being examined.

The appellate court accepts new evidence only if it considers the reasons for not presenting such evidence to the previous court to be valid (part 1 of article 327.1 of the Code of Civil Procedure of the Russian Federation).

New evidence will not be accepted by the appellate court if it is established that the person relying on it deliberately failed to present this evidence in the trial court.

When is it necessary to appeal a judicial act in part?

The Arbitration Procedural Code provides for the right of a person to prepare a complaint not with the aim of canceling the entire decision, but to cancel only its individual points. For example, when resolving a dispute about children during a divorce (place of residence, alimony, participation in upbringing), the separated parent is not satisfied with the schedule of communication with the child.

The defendant in an appellate dispute may file a motion demanding a review of the verdict in its entirety if he is not satisfied with other points. That is, he objects to checking the judicial act in part. In this case, filing a separate appeal is not required, so all petitions and statements are sent within the framework of one appeal process.

According to Article 268 of the Arbitration Procedural Code, the appellate judge checks compliance with the procedural procedure and legal requirements at all stages of making the initial decision, regardless of the requests of the participants.

Return of the complaint

The court may return the appeal if:

the violations due to which it was left without movement were not eliminated within the prescribed period;
the applicant missed the filing deadline, and either did not ask to renew it, or the court denied him such a request (this is described in detail in the article “Deadline for filing an appeal in a civil case”);
The applicant himself asked to return the complaint.

This is important to know: The procedure and time frame for considering a cassation appeal in a civil case

The return determination can also be appealed. However, it is worth considering that the period for filing a private complaint is not 30 days, as when appealing a court decision, but only 15.

How to present new evidence

It was noted above that it is impossible to add new evidence that has not previously been considered by the first instance. But there are exceptions to every rule. So, on the one hand, the interested person, if he wants to support the evidence, documents that there was no previous opportunity to present valuables/documents. It is extremely rare that you can bring new materials without confirming the impossibility of the previous submission.

New evidence is presented by the person filing the complaint

If you want to add new materials to the dispute, you will need to justify why the applicant was unable to submit them earlier . The judge considers the stated reasons and, if they were indeed justified, may allow new evidence to be added. If the stated obstacles were not significant, then it will not be possible to use the materials as evidence. This rule is contained in Article 268 of the Arbitration Procedural Code of the Russian Federation.

In order to eliminate possible conflicts, the Resolution of the Plenum of the Supreme Arbitration Court limited the list of reasons that are recognized as significant. These include:

the trial judge, without sufficient grounds, ignored the petition of a participant in the process to order an additional examination or to conduct a procedure for compulsory collection of evidence;
the court did not accept the evidence because the participant missed the deadline for filing a statement of claim on a specific dispute;
The complainant had complaints about the protocol of the court session, which does not indicate that the participant had previously filed a motion to add significant evidence.

It will be possible to add evidence in any case if the appellate judge confirms the presence of significant violations of judicial procedure or legal requirements.

New evidence is presented by the person who objects to the complaint

In such a situation, the participant will not need to confirm the lack of opportunity to use the materials earlier in the first instance.

Consideration of the appeal in the absence of the applicant

It is not always possible for a person to attend a meeting to consider his complaint. At the same time, he must inform the court of the reasons for his failure to appear.

The case may be considered without the applicant (subject to notification of the day of the hearing) in the following cases:

the reasons for absence were not recognized by the court as valid;
The applicant himself asked to consider the complaint in his absence.

The trial is postponed if:

the court did not notify any person participating in the case about the day of consideration of the complaint;
the reasons for the applicant's failure to appear were not considered sufficiently valid.

This is important to know: The procedure for appealing the rulings of the court of first instance in a civil case

How to make new arguments

During the consideration of a dispute in the appellate instance, participants in the procedure are given the right to argue and confirm violations on the part of the first instance judge. Whether the decision will be overturned with the right to re-examine the case largely depends on the stated arguments.

At this stage, the following rules must be observed, which will increase the chance of a satisfactory solution:

The stated arguments must not contain any mention of a change in the grounds or subject of the statement of claim. But this rule does not apply if the appeal has begun to consider the conflict as the court of first instance. For example, the plaintiff will send an appeal with a request to cancel the signed transaction, since the subject of the contract does not belong to the participant in the transaction, that is, the contract was drawn up without the existence of property rights. In an appeal, it will not be possible to state a demand to cancel the transaction due to the incapacity of the participants, so this changes the basis for the direction of the claim.
If the plaintiff files a claim in violation of the statute of limitations, the trial court is obliged to consider the case. If during the trial the defendant files a motion to dismiss the case due to missed deadlines, the court will grant the motion. Later in the appeal it will no longer be possible to make such a claim.
Preliminary notification to the participants of the procedure about your intention to attach additional materials and evidence. This must be done in advance so that the opponent’s side can prepare for the procedure for protecting violated interests.

These rules cease to apply when the dispute is considered by the court of appeal, as the first instance. In this case, the procedure follows the general procedure.