An appeal against a court decision. Search for decisions of courts of general jurisdiction Complaint to the Kemerovo Regional Court
Advocates compliance with all stipulated rules regarding the submission of this document. Failure to comply may result in the plaintiff or defendant losing the right to such a procedure.
What is an appeal?
There are 2 concepts of an appeal: it is considered as a procedure for appealing against a court decision or as a document that initiates it. Considering the topic, it is necessary to focus on the 2nd definition.
An appeal is a document drawn up according to certain rules, in which the applicant requests to cancel or change an unlawful judgment first instance. It has a number of distinctive features.
All of the listed signs are mandatory.
The difference between appeal and cassation
Along with the appeal, the cassation complaint is often mentioned. Individuals who are not professionals do not always distinguish them. A citizen who is not privy to legal subtleties can identify both of these documents and not think about what a cassation or appeal is. There is a reason for this: they have a number of common features. The appeal and cassation are similar in the following:
- both documents can be submitted for the purpose of canceling the decision of the court of first instance;
- in relation to the appeal and cassation, similar rules apply;
- the range of subjects entitled to submit these complaints is identical.
Distinguishing such complaints is not difficult. Main feature each of them is the issue of the entry into force of the decision of the court of first instance. Cassation is an appeal against a valid act, and an appeal is filed if the deadline for its application has not come.
Another difference is the ability to present additional evidence. If consideration appeal assumes the opportunity to add new materials, the cassation involves the study of the court decision for compliance with the procedural rules within the framework of the evidence in the case.
Important
It is worth distinguishing between appeal and cassation in terms of timing. An appeal against a current decision is possible within six months, and the time frame for sending a document on cancellation that has not entered into force cannot be more than 1 month.
When can you appeal a court decision?
The stage of appeal against an act that has not entered into force is provided for in all forms. The appeal is possible:
- in criminal proceedings;
- when considering cases of administrative offenses;
- in the course of civil proceedings.
- within the framework of the consideration of the case by arbitration.
Before filing an appeal in the framework of a case, you should study the rules established by the relevant code. They take into account the specifics of each of the types of legal proceedings, therefore, a number of rules for drawing up, registration and directions have significant differences.
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An appeal in an administrative case
The rules governing the procedure for challenging a court decision in an administrative case are established by Section 6 of the CAS RF. filed within one month from the date of adoption of the full text of the contested act.
If during the final session only the operative part of the document was announced (the judge appointed a punishment without reading out his arguments), the period of challenge will begin to count from the date specified in the full text.
There are other terms as well.
- Decisions on the deportation of foreigners, in cases related to administrative supervision, involuntary hospitalization in psychiatric institutions, as well as cases of dissolution of municipal bodies can be challenged within 10 days.
- If the adopted act concerns the issues of holding election campaigns and voting, the appeal period is 5 days.
- The appeal is filed within 15 days when the decision was made in a simplified manner.
The law allows the transfer of a document to the court office, as well as its sending by mail (the date of the appeal will be the stamp on the envelope, made by the employee who received the letter). Another way is to go to court through its online portal.
How to write an appeal against a court decision, sample
The requirements for the content of the complaint are set out in Art. 299 CAS RF. Any template can be used to fill out the introductory part of the complaint.
The initial part of the document states:
- full name of the court in which the decision will be challenged;
- information about the applicant (full name, place of residence, phone number and other means of communication);
- information about other persons who took part in the consideration of the case in the first instance.
The following is the essence of the complaint. Each case has its own characteristics, so the document template will not always be useful. Before filing an appeal against a court decision, it is advisable to consult with a lawyer specializing in such cases. The following requirements are imposed on the substantive part of the complaint:
- it must contain the reasons for applying to a higher court;
- the document must contain the arguments of the applicant who considers the contested act unjust;
- the complaint must contain demands for the cancellation of the original decision.
The conclusion contains a list of annexes to the document.
How to appeal a court decision
How to File a Criminal Appeal
The procedure for challenging sentences has a number of features. The procedure for filing an appeal in a crime case is established by Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation.
- The document is sent directly to the next instance court.
- An appeal against a court decision can be made within 10 days after the verdict is passed. If the applicant is in custody, then this period begins to be calculated from the moment a copy of the act is delivered to him.
The cost of errors and inaccuracies in the document may be the freedom of a citizen or his property well-being. For this reason, it is recommended to involve a well-proven lawyer in the preparation and direction of the complaint.
How to write an appeal against a court decision in a civil case
An appeal against judicial acts that have not entered into force in civil cases is provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation. The law establishes the following features of challenging decisions:
The requirements for the content of the document are similar to the rules concerning administrative proceedings. The complaint must contain information about the authority considering it, the parties, the arguments of the applicant and his requirements, as well as a list of accompanying materials (documents, receipts for entry, etc.).
Filing an Appeal in Arbitration Cases
Challenging decisions in civil cases in the economic sphere is regulated by Chapter 34 of the APC RF. Unlike civil proceedings, the arbitration process involves sending the document directly to the court of appeal.
The general term for challenging the act is 30 days from the date of its full text. The appeal period will be limited to 15 days if the decision was made on a simplified basis.
Additionally, you can study the information about which.
The document can be submitted through the office, sent by mail or through the court's website.
Terms of consideration of an appeal
The law limits the period during which a complaint must be considered. For administrative cases, it is 2 months from the date of receipt of materials. If the consideration of the appeal is carried out by the Supreme Court, then the period is 3 months.
A similar procedure is established for civil cases.
The 2-month limit is provided for when considering appeals in arbitration proceedings. The law allows for the possibility of extending this period to 6 months if this is due to a large number of participants or other circumstances that make the case difficult.
Complaints filed in relation to sentences are subject to a 30-day period. If the Supreme Court acts as the appellate instance, then the period for the implementation of the procedure is extended to 45 days.
State duty when filing an appeal
One of the conditions for challenging a court decision is the payment of a fee prescribed by law. The state duty on an appeal is established in Chapter 25.3 of the Tax Code of the Russian Federation.
Its size is associated not with the sphere of legal proceedings, but with the specific institution of the Themis. The state duty for filing an appeal, which is sent to the courts of general jurisdiction, is 150 rubles for citizens and 3000 rubles if the decision is challenged by a legal entity.
If the case relates to economic disputes, then different rules will apply. The state duty for an appeal to an arbitration court will be 3,000 rubles, regardless of the status of the applicant.
Before challenging any decision, you must check that you have all the required documents. It is also important to establish whether the state duty has been entered correctly. Decision appeal arbitration court or another institution of Themis will be left without movement if the envisaged payment is not transferred in accordance with the details.
Resolution of September 27, 2019 in case No. 4A-864/2019
By order of the magistrate judicial area No. 1 of the Kirovskiy judicial district of the city of Kemerovo dated 05.06.2019, upheld by the decision of the judge of the Kirovskiy district court of the city of Kemerovo dated 22.07.2019, LLC UK Housing Trust of the Kirovskiy District was found guilty of committing an administrative offense under Part 2 of Art. 14.1.3 of the Administrative Offenses Code of the Russian Federation, and fined 125,000 (one hundred twenty five thousand) rubles. In the supervisory complaint, the defender of LLC UK "Housing Trust of the Kirovsky District" I.V. Nevezhin ...
Appeal judgment of September 27, 2019 in case No. 1-171 / 2019
Bobrov D.G. found guilty of driving a person in a state of intoxication, having a criminal record for committing a crime under Art. 264.1 of the Criminal Code of the Russian Federation. The crime was committed in<адрес>under the circumstances set out in the verdict. The verdict of the court was made in a special procedure of the trial. In the appeal, the convicted Bobrov D.G., not challenging the qualification of the act, expresses disagreement with the court's verdict, considering it excessively harsh in terms of the punishment imposed ...
Decision of appeal dated September 27, 2019 in case No. 1-237 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Efremov A.V. found guilty of theft, that is, secret theft of someone else's property, committed with causing significant damage to a citizen. The crime was committed in<адрес>under the circumstances set out in the judgment. The criminal case was considered and the guilty verdict was passed in a special order, in accordance with Chapter 40 of the Code of Criminal Procedure of the Russian Federation. In the appeal (with additions) convicted Efremov A.The. I do not agree with the verdict of the court regarding the excessive severity of the sentence imposed ...
Resolution of September 27, 2019 in case No. 4A-845/2019
Kemerovo Regional Court (Kemerovo Region) - Administrative
By the decision of the magistrate judicial district No. 3 Novoilinsky judicial district of Novokuznetsk from 25.10.2018 Zaitseva H.The. found guilty of committing an administrative offense under Part 1 of Art. 12.26 of the Administrative Code of the Russian Federation, and was fined 30,000 (thirty thousand) rubles with deprivation of the right to drive vehicles for a period of 1 (one) year 6 (six) months. By the decision of the judge of the Novoilinsky District Court of Novokuznetsk dated 06.12 ...
Decision of September 27, 2019 in case No. 3A-331/2019
Latypova Zarima Yavdatovna's demands to satisfy. Establish the cadastral value of the real estate object - premises, with cadastral number No., area 209.8 sq.m., purpose - non-residential premises, name - non-residential premises, located at:<адрес>, in the amount of its market value of 1,690,000 rubles., determined as of June 22, 2011. Date of treatment Latypova Z.Ya. to the court with this administrative statement of claim - August 23, 2019 ...
Decision of appeal dated September 27, 2019 in case No. 1-232 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
By the verdict Maashev A.A. found guilty and convicted of driving a person in a state of intoxication, subjected to administrative punishment for driving in a state of intoxication. The crime was committed by DD.MM.YYYY in<адрес>under the circumstances set out in the descriptive and motivating part of the judgment. In the appeal and in additions to it, convicted Maashev A.A. ...
Decision of appeal dated September 27, 2019 in case No. 1-210 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Bannikov V.S. convicted of a crime under Part 1 of Art. 307 of the Criminal Code of the Russian Federation, that is, for knowingly giving false testimony of a witness in court. The crime was committed DD.MM.YYYY under the circumstances set out in the judgment. Convicted Bannikov V.S. in the court of first instance he pleaded not guilty. In the appeal convicted Bannikov V.S. considers the sentence to be unfair and subject to overturn ...
Decision of appeal dated September 27, 2019 in case No. 1-208 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
According to the verdict Khovanskiy V.E. convicted of a violation of the rules of the road by a person driving a car, resulting in the death of a person by negligence. The crime was committed on 04/26/2019. in<адрес>under the circumstances given in the judgment. The criminal case was considered in a special procedure of judicial proceedings ...
Decision of September 27, 2019 in case No. 3A-328/2019
Kemerovo Regional Court (Kemerovo Region) - Civil and Administrative
To satisfy the demands of Maxim Viktorovich Glazkov. Establish cadastral value land plot with cadastral number No., area 2058 sq. m., land category - land of settlements, permitted use - for placing trade objects, Catering and consumer services located at:<адрес>, in the amount of its market value 1,247,148 rubles, determined as of August 01, 2014. Date of appeal M.V. Glazkov ...
Decision of appeal dated September 26, 2019 in case No. 1-149 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Elistratov D.A. convicted of theft causing significant damage to a citizen. The crime was committed under the circumstances set out in the verdict. The case was considered in a special order in accordance with Chapter 40 of the Code of Criminal Procedure of the Russian Federation. In the appeal lawyer Yanina A.The. expresses disagreement with the sentence, considers it unjust due to the excessive severity of the punishment ...
Decision of appeal dated September 26, 2019 in case No. 1-136 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Krasulin F.V. convicted of unauthorized leaving of the place of residence by the supervised person, committed with the aim of evading administrative supervision. The crime was committed in<адрес>under the circumstances specified in the descriptive and motivating part of the judgment. The appeal convicted Krasulin F.The. expresses disagreement with the verdict, considers the punishment imposed on him excessively harsh ...
Decision of appeal dated September 26, 2019 in case No. 1-129 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Skachkov A.B. convicted of non-payment by a parent repeatedly without good reason in violation of a court decision of funds for the maintenance of minor children. The prosecutor filed an appeal against the above verdict, which was withdrawn prior to the beginning of the session of the court of appeal. Having heard the parties who did not object to the termination of the appeal proceedings, having discussed the stated petition, the court of appeal finds no grounds for further appeal proceedings ...
Decision of September 26, 2019 in case No. 3A-329/2019
Kemerovo Regional Court (Kemerovo Region) - Civil and Administrative
Satisfy the demands of Yulia Masogutovna Terentyeva. Establish the cadastral value of a real estate object - a building with a cadastral number No., with an area of 4241.8 sq.m., purpose - a non-residential building, name - the building of the RMC, located at:<адрес>, in the amount of its market value of 13,208,000 rubles., determined as of November 25, 2013. Date of appeal Yu.M. Terentyeva to the court with this administrative statement of claim - August 21, 2019 ...
Decision of appeal dated September 26, 2019 in case No. 1-157 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
V.V. Mashenkov convicted of negligence, that is, improper performance official of their duties due to negligent attitude to the service, if it entailed a significant violation of the rights and legitimate interests of citizens and the interests of society and the state protected by law, resulting in the death of FULL NAME7 and FULL NAME8 by negligence.<адрес>in the circumstances specified in the descriptive-reasoning part of the judgment ...
Decision of appeal dated September 26, 2019 in case No. 1-1 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Pavlov E.V. convicted of open theft of someone else's property. The case was considered in a special order in accordance with the requirements of Chapter 40 of the Code of Criminal Procedure of the Russian Federation. In the appeal convicted Pavlov E.The. considers the sentence illegal and unfounded, excessively harsh. Disagrees that the court applied Art. 70 of the Criminal Code of the Russian Federation. He asks to consider the issue of his amnesty, since the criminal case was initiated in 2013, part 1 of Art. 161 of the Criminal Code of the Russian Federation, in his opinion, falls under the amnesty ...
Decision of September 26, 2019 in case No. 3A-330/2019
Kemerovo Regional Court (Kemerovo Region) - Civil and Administrative
Satisfy the requirements of the Joint Stock Company "ATT Group". Establish the cadastral value of a real estate object - a building with cadastral number No., with an area of 13,831 sq.m., purpose - a non-residential building, name - a building of a trade and warehouse base, located at:<адрес>, in the amount of its market value of 110,305,000 rubles, determined as of March 7, 2017 ...
Resolution of September 26, 2019 in case No. 4A-839/2019
Kemerovo Regional Court (Kemerovo Region) - Administrative
By the decision of the magistrate of the judicial section No. 4 of the Zavodskoy judicial district of Novokuznetsk from 11.04.2019, upheld by the decision of the judge of the Zavodskoy district court of Novokuznetsk dated 30.05.2019, S.Yu. found guilty of committing an administrative offense under Part 1 of Art. 12.26 of the Administrative Code of the Russian Federation, and fined 30,000 (thirty thousand) rubles with deprivation of the right to drive vehicles for a period of one and a half years. In the supervisory complaint, defense counsel V.V. Berezovsky ...
Decision of appeal dated September 26, 2019 in case No. 1-465 / 2019
Kemerovo Regional Court (Kemerovo Region) - Criminal
Egorov I.V. convicted of causing death by negligence as a result of improper performance by a person of his professional duties. The crime was committed in the city of Kemerovo under the circumstances set out in the verdict. In the appeal lawyer Bukova A.G. expresses disagreement with the verdict regarding the recovery from Egorova AND.The. in favor of the victim Victim No. 1 on account of compensation for material damage 80,000 rubles ...
Decision of September 26, 2019 in case No. 3A-326/2019
Kemerovo Regional Court (Kemerovo Region) - Civil and Administrative
Satisfy the demands of Tatiana Leonidovna Pilipenko. Establish the cadastral value of the land plot with cadastral number No., area 2557 sq.m., land category - land of settlements, permitted use - under the building of the dining room, located at:<адрес>in the amount of its market value of 717,713 rubles, determined as of August 01, 2014. The date of the appeal of Tatiana Leonidovna Pilipenko to the court with this administrative statement of claim is August 15, 2019 ...
Resolution of September 26, 2019 in case No. 4A-853/2019
Kemerovo Regional Court (Kemerovo Region) - Administrative
By the decision of the magistrate of the judicial section No. 1 of the Central Judicial District of Novokuznetsk dated 05.21.2019, upheld by the decision of the judge of the Central District Court of Novokuznetsk dated 03.07.2019, the head of the subscriber department of LLC Vodokanal N.N. She was found guilty of committing an administrative offense under Article 5.59 of the Administrative Offenses Code of the Russian Federation, and was subjected to an administrative fine in the amount of 5,000 (five thousand) rubles. In the supervisory complaint of the Transition N.N. ...
Resolution of September 26, 2019 in case No. 4A-792/2019
Kemerovo Regional Court (Kemerovo Region) - Administrative
By the decision of the judge of the Central District Court of Novokuznetsk from 28.03.2019, upheld by the decision of the judge of the Kemerovo Regional Court from 22.05.2019, Pavlova Yew.The. found guilty of committing an administrative offense under Part 1 of Art. 12.24 of the Administrative Code of the Russian Federation, and was subjected to administrative punishment in the form of deprivation of the right to drive vehicles for a period of 1 (one) year. In the supervisory complaint of Yu.V. Pavlov ...
Judgment of September 25, 2019 in case No. 21-595 / 2019
Kemerovo Regional Court (Kemerovo Region) - Administrative
Resolution of the head of the department of training and conscription of citizens for military service of the military commissariat of the Central, Kuibyshev and Novokuznetsk districts of Novokuznetsk FULL NAME4 dated April 25, 2019. and the decision of the judge of the Central District Court of Novokuznetsk dated July 09, 2019. in the case of an administrative offense under Article 21.5 of the Code of Administrative Offenses of the Russian Federation, in relation to Shmarin Boris Igorevich, to leave unchanged, the complaint - dismissed ...
Referee: Kiklevich C.The. Case No. 33-8250
Speaker: T.M. Chudinova
APPEAL DEFINITION
Judicial Collegium for Civil Cases of the Kemerovo Regional Court
composed of: the presiding officer Chudinova T.M.,
judges: Pastukhova S.A., Suchkova I.A.,
under the secretary of O.V. Nazarenko,
having heard in open court on the report of Judge Chudinova T.M. civil case based on a private complaint of Olga Alexandrovna Gorshkova
for the determination of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region
at the request of Albina Nikolaevna Zheltoukhova about the restoration of the deadline for filing a cassation appeal,
INSTALLED:
Zheltoukhova A.N. addressed the court with an application for the restoration of the procedural time limit for filing a cassation appeal, motivated by the fact that she missed, for good reason, the deadline for filing a cassation appeal against an appeal ruling dated 03.11.2016 in the case at the suit of O.A. Gorshkova. to Zheltoukhova A.N. on recognizing the contract of sale as invalid, since she is legally illiterate, she has nowhere to live and, accordingly, send a complaint with a specific indication of the address.
Zheltoukhova A.N. at the hearing she supported the statement.
Gorshkova O.A. objected to the restoration of the term.
The representative of a third party, who does not declare independent claims regarding the subject of the dispute, the FMS for the Kemerovo Region in the city of Prokopyevsk, as well as the prosecutor did not appear at the hearing.
By the ruling of the Rudnichny District Court of Prokopyevsk, Kemerovo Region dated June 09, 2017, it was decided:
To restore Zheltoukhova Albina Nikolaevna the procedural period for filing a cassation appeal against the decision of the Rudnichny District Court of Prokopyevsk, Kemerovo Region of August 08, 2016 and the appeal ruling of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court of November 03, 2016.
In a private complaint Gorshkov O.A. asks the court's ruling to cancel, referring to the fact that the court had no grounds to restore the defendant's missed deadline for filing a cassation appeal.
The defendant has permanently lived and is currently living in a private house at the address<адрес>belonging to the defendant and her son.
In addition, the defendant was able to hire a lawyer to file a cassation appeal. The defendant earlier, when submitting a counterclaim to the court to declare the transaction invalid, issued a power of attorney to represent their interests in the court FULL NAME1, which is engaged in private legal practice. FULL NAME2 was a representative Zheltoukhova A.N. at trials.
The Judicial Collegium for Civil Cases of the Kemerovo Regional Court explained to the defendant the terms for appealing the ruling in the court session when issuing an appeal ruling. The defendant was personally present at the hearing and could not but hear about the court's explanations.
In accordance with para. 1 h. 3 tbsp. 333 Code of Civil Procedure of the Russian Federation, a private complaint was considered by the court of appeal without notifying the persons involved in the case.
Having studied the materials of the case, having discussed the arguments of the private complaint, the panel of judges finds the court ruling to be canceled on the following grounds.
In accordance with part 2 of Article 376 of the Code of Civil Procedure of the Russian Federation, judicial decisions can be appealed to the court of cassation within six months from the date of their entry into legal force, provided that the persons specified in part one of this article have exhausted other methods of appeal established by this Code the court decision before the day it comes into legal force.
By virtue of part 4 of Article 112 of the Code of Civil Procedure of the Russian Federation, an application for the restoration of the missed procedural period established by part two of Article 376, part two of Article 391.2 and part two of Article 391.11 of this Code is submitted to the court that considered the case at first instance. The specified period can be restored only in exceptional cases when the court recognizes the reasons for missing it as valid due to circumstances that objectively exclude the possibility of filing a cassation or supervisory complaint within the specified time period (serious illness of the person filing the complaint, his helpless state, etc.), and these circumstances had place within a period not later than one year from the date of entry into force of the contested court decision.
From the materials of the case it follows that the decision of the Rudnichny District Court of the city of Prokopyevsk, Kemerovo Region dated 08.08.2016, it was decided:
“Claims of Olga Alexandrovna Gorshkova against Albina Nikolayevna Zheltoukhova regarding recognition as having lost the right to use the living quarters, eviction and deregistration to partially satisfy.
Recognize Zheltoukhova Albina Nikolaevna,<данные изъяты>that has lost the right to use the living quarters - an apartment located at:<адрес>
Evict Zheltoukhova Albina Nikolaevna,<данные изъяты>, from the living quarters - an apartment located at:<адрес>
The rest of the claim against the defendant Zheltoukhova A.N. refuse.
To satisfy the counterclaim of Albina Nikolayevna Zheltoukhova against Olga Alexandrovna Gorshkova on recognizing the contract of sale as invalid, refuse ”(volume 1 case sheet 176 - 187).
By the appellate ruling by the Judicial Collegium for Civil Cases of the Kemerovo Regional Court dated 03.11.2016 the decision of the Rudnichny District Court of Prokopyevsk, Kemerovo Region dated 08.08.2016 was upheld, the appeal Zheltoukhova A.N. - without satisfaction (volume 1 l.d. 217-221).
11/18/2016 materials of the civil case No. 2 -562/2016 on the claim of O. Gorshkova. to Zheltoukhova A.N. on recognition as having lost the right to use the living quarters, eviction and deregistration, counter statement of claim Zheltoukhovoy A.N. to Gorshkova O.A. on recognizing the contract of sale as invalid, were received by the Rudnichny District Court of the city of Prokopyevsk, which is confirmed by the stamp of the court for registering incoming correspondence.
12/05/2016 Zheltoukhova A.N., applied to the Rudnichny District Court of the city of Prokopyevsk with a request to grant an adjournment of the execution of the court decision (volume 1 case file 224).
By a court ruling dated 16.12.2016, the application of A.N. Zheltoukhova was partially satisfied, a deferral was granted for the execution of the decision of the Rudnichny District Court of Prokopyevsk, Kemerovo Region of 08.08.2016 for a period until 01.03.2017 (volume 1 case sheet 248-251).
By the decision of the judge of the Kemerovo Regional Court dated 15.05.2017, the cassation appeal Zheltoukhova A.N. was returned without consideration. on the appeal ruling by the Judicial Collegium for Civil Cases of the Kemerovo Regional Court dated 03.11.2016 and the decision of the Rudnichny District Court of Prokopyevsk, Kemerovo Region dated 08.08.2016, received by the Kemerovo Regional Court on 04.05.2017, due to non-compliance with the requirements of clause 3 h . 1 tbsp. 378 Code of Civil Procedure of the Russian Federation (volume 2, case file 6). Since the cassation appeal was directed by A.N. Zheltoukhova. in the last days term of appeal, the applicant explained the provisions of Art. h. 2 tbsp. 376, part 4 of Art. 112 Code of Civil Procedure of the Russian Federation.
06/02/2017 A. N. Zheltoukhova applied with this application for the restoration of the procedural period (volume 2 case sheets 3 - 4).
Satisfying the statement of A.N. Zheltoukhova. on the restoration of the deadline for filing a cassation appeal against the above court decisions, the court proceeded from the fact that the statutory deadline for filing it was missed for a good reason.
However, the panel of judges finds this conclusion of the court erroneous.
In clauses 8, 10 of the Resolution of the Plenum of the Supreme Court Russian Federation dated 11.12.2012 No. 29 "On the application by the courts of the norms of civil procedural legislation governing proceedings in the court of cassation", it is explained that based on the provisions of part 2 of Article 376, paragraph 3 of part 1 of Article 379.1, Article 382, paragraph 6 of part 1 of Article 390 of the Code of Civil Procedure RF, the six-month period for cassation appeal of court decisions that have entered into legal force is the same for appeal against court decisions in cassation procedure, and for filing a cassation appeal, submission to the Judicial Collegium for Administrative Cases, the Judicial Collegium for Civil Cases or the Military Collegium of the Supreme Court of the Russian Federation after appeal of court decisions to the presidium of a regional or equivalent court does not entail its re-calculation. Based on the provisions of Part 4 of Article 112 of the Code of Civil Procedure of the Russian Federation, this period can be restored at the request of both an individual and a legal entity and only in exceptional cases when the court recognizes the reasons for his omission as valid due to circumstances that objectively exclude the possibility of filing a cassation appeal within the prescribed time limit. In relation to individuals participating in the case, such circumstances, in particular, may include a serious illness, a helpless state, other circumstances relating to the applicant's personality, as well as other circumstances beyond the control of the person, due to which he was deprived of the opportunity to apply in a timely manner. with a cassation appeal to the court.
Establishing a six-month period for filing a cassation appeal, the legislator proceeded from the fact that a person, with due diligence and conscientiousness in exercising the rights granted to him by law, has the opportunity to calculate the time necessary for him to appeal the court ruling in cassation. The restoration of the procedural period is guaranteed to persons who objectively did not have the opportunity to file a complaint within the time limit established by law.
Thus, the possibility of restoring the time limit for appealing court decisions in cassation procedure is associated with the presence of exceptional circumstances that took place after the entry into force of the judicial acts.
By virtue of the provisions of Art. 56 of the Civil Procedure Code of the Russian Federation, evidence confirming the existence of valid reasons for admission established by law time limit for the appeal, should have been submitted by the applicant, which was not done.
The case materials do not contain circumstances directly related to the applicant's personality that would actually prevent her from preparing and submitting a complaint within the time period established for appealing the court decision to the court of cassation.
In the application for the restoration of the missed procedural term Zheltoukhova A.N. as the reasons for missing the deadline for cassation appeal of judicial acts, he refers to legal illiteracy, lack of permanent place residence.
However, the panel of judges believes that these circumstances cannot be regarded as valid reasons objectively preventing the defendant from exercising his right to appeal in a timely manner.
As follows from the case materials, Zheltoukhova A.N. I was personally present at the hearing of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court on 03.11.2016, the court explained the persons participating in the case, their procedural rights, including the right and procedure for appealing the appeal ruling. In addition, Zheltoukhova A.N. took part in the consideration of the case by the court of first instance on the merits of the dispute, including by participating in court hearings of her representative by power of attorney full name 3
Thus, the circumstance of the applicant's legal illiteracy is not grounds for restoring the procedural time limit for filing a cassation appeal and the arguments of A.N. Zheltoukhova. do not indicate the impossibility of timely filing a cassation appeal and are not a valid reason for missing the deadline.
The applicant's reference to the fact that, due to the impossibility of living at the place of registration, she did not have a permanent residence, which made it difficult to send and receive postal correspondence, cannot be taken into account. The panel of judges finds the arguments of the private complaint of O.A. Gorshkova worthy of attention. that the defendant has permanently lived and is currently living in a private house at the address:<адрес>which is also confirmed by the materials of the case, according to which Zheltoukhova A.N. indicated the address of her residence<адрес>(volume 1 l.d. 191).
Thus, the circumstances indicated by the applicant do not affect the essence of the resolution of the application for the restoration of the procedural period.
The applicant did not provide evidence that, acting reasonably and in good faith, she faced circumstances that impeded the timely filing of the cassation appeal, and therefore, the first instance court had no legal grounds to satisfy the request and restore the time limit.
In this regard, the court of appeal comes to the conclusion that the ruling of the first instance court was canceled and the application for the restoration of the missed procedural time limit for filing a cassation appeal was rejected, since the time limit for appealing the court rulings held in the case by way of cassation was missed by the applicant without good reason.
Zheltoukhova A.N. did not show a sufficient degree of care and discretion with regard to the issue of timely appeal of court decisions in cassation procedure, although, according to the circumstances of the case, she should and could have done so.
In such circumstances, the court ruling cannot be recognized as illegal, it must be canceled with the resolution of the issue on the merits.
Guided by Art. 334 Code of Civil Procedure of the Russian Federation, judicial board
ABOUT P R E D E L I L A:
To cancel the determination of the Rudnichny District Court of Prokopyevsk, Kemerovo Region, dated June 09, 2017, to resolve the issue on the merits.
Refuse Zheltoukhova Albina Nikolaevna in satisfying the petition to restore the missed deadline for filing a cassation appeal against the decision of the Rudnichny District Court of Prokopyevsk, Kemerovo Region of August 08, 2016 and the appeal ruling of the Judicial Collegium for Civil Cases of the Kemerovo Regional Court of November 03, 2016 in the claim of O.A. Gorshkova to Zheltoukhova A.N. on the recognition of the sales contract as invalid.
Presiding: T.M. Chudinova
Judges: S.A. Pastukhov
I.A. Suchkova
Accommodation decision
a judicial act on the website of the Kemerovo Regional Court
in case No. 33-8250
Decision
Judge's signature approving the decision
Place in full, since the text of the decision is subject to publication (part 3 of article 253 of the Code of Civil Procedure of the Russian Federation, article 35 of the Law of the Russian Federation "On funds mass media", Part 2 of Art. 15 ФЗ dated 22.12.2008 No. 262-ФЗ as amended. from 28.06.2010).
Place with the deletion of the personal data of the participants in the process, except for the names and initials of the plaintiff, defendant, third party, civil plaintiff, civil defendant, convicted person, acquitted person, the person in respect of whom the proceedings are being conducted in the case of an administrative offense, the secretary of the court session who considered (considered) the case of judges (judges), as well as a prosecutor, a lawyer and a representative, if they participated in the trial (part 3 of article 15 of the Federal Law of December 22, 2008 No. 262-FZ as amended on June 28, 2010).
Place with the exception of information containing:
- state or other secrets protected by law (commercial, tax, banking, medical, notarial, attorney's, auditing, insurance, adoption, will, correspondence, telephone conversations, postage, confession, pawnshop, etc.).
- other information of limited access (information about events and circumstances of private life, personal, family secrets, confidential information about the population in the census forms, as well as information that became known to employees of social service institutions in the provision of social services, etc.).
(part 4 of article 15 of the Federal Law of December 22, 2008 No. 262-FZ as amended on June 28, 2010).
(Underline whatever applicable)
Do not post, since the judicial act was issued in cases:
1) affecting the security of the state;
2) arising from family legal relations, including in cases of adoption (adoption) of a child, other cases affecting the rights and legitimate interests of minors;
3) on crimes against sexual inviolability and sexual freedom of the person;
4) on limiting the legal capacity of a citizen or on recognizing him as legally incompetent;
5) on compulsory hospitalization of a citizen in a psychiatric hospital and compulsory psychiatric examination;
6) on making corrections or amendments to the civil status record;
7) on the establishment of facts of legal significance, considered by the courts of general jurisdiction;
8) resolved in accordance with Article 126 of the Civil Procedure Code of the Russian Federation.
from 31/12/2018
In case of disagreement with the results or the procedure for considering the case, the participants in the case file an appeal against the court decision. This is the first stage of the appeal. Without which all others simply will not take place.
Let's make a reservation right away that the examples of courts given in the article and the procedure for filing a complaint are valid until 2019. Indeed, on July 30, 2018, amendments to the Law on the Establishment of Appellate and Cassation Courts of General Jurisdiction entered into force. Due to the need to resolve personnel issues, the law will "work" in full no later than October 2019.
So far, everything remains the same. All court rulings rendered at first instance are subject to appeal. The general deadline for filing an appeal is 1 month from the date of making a reasoned decision.
An appeal is drawn up in a form regulated by law and in compliance with the requirements for its content. The procedure for filing a lawsuit has also been established. Without complying with the requirement, the court will not start considering the complaint. Therefore, to draw up a document, use the provided sample and read the recommendations of lawyers.
Example of an appeal
To the Moscow Regional Court
Dolgoprudny, st. Maiskaya, house 6, apt. 6,
Tel. 89000000006
address: 141700, Moscow region,
Dolgoprudny, st. June, building 6, apt. 8,
Tel. 89000000008
APPEAL AGAINST THE COURT'S DECISION
dated May 15, 2019 in civil case No. 2-1254 / 2019
On May 15, 2019, the Dolgoprudny City Court of the Moscow Region issued a judgment in civil case No. 2-1254 / 2019 at the suit of I.O. Konstantinov. to Egorov S.A. about, reclaiming property from someone else's illegal possession.
The court decision demands Konstantinova AND.Oh. satisfied. Purchase and sale transaction between Konstantinov I.O. and Egorov S.A. declared invalid, the disputed property was claimed in favor of the plaintiff. Ownership of S.A. Egorova the property is discontinued.
I disagree with the court's decision, I consider it illegal and unfounded for the following reasons. The court incorrectly identified the circumstances relevant to the case. The court concluded that the parties entered into a property pledge agreement. And the sale and purchase transaction was essentially a sham. However, the pledge agreement has nothing to do with this dispute, it is an independent transaction.
The findings of the court that the property passed into the ownership of the defendant do not correspond to the circumstances of the case. In fact, the disputed property is in the possession and use of the third person Petrova O.Yu., with whom the transaction was actually made. The court incorrectly applied the norms of substantive law, namely Articles 182, 971 of the Civil Code of the Russian Federation. A representative under a power of attorney does not acquire property under a transaction concluded by him on behalf of another person into his ownership.
The case was considered in an illegal composition, since it was accepted by the Dolgoprudnensky City Court in violation of the rules. In fact, the cost of the claim is 30,000 rubles. (the value of the disputed property), therefore, the claim must be considered by a justice of the peace at the place of residence of the defendant.
The case was considered in the absence, which was not notified of the time and place of the court session, there is no information about this in the case file. In addition, the case file is missing from 15.10.2015.
Permitted significant violations of the norms of material and procedural law, wrong definition significant circumstances, the inconsistency of the conclusions with the actual circumstances do not allow the court's decision to be recognized as lawful and justified. The decision is subject to cancellation on the grounds listed in Article 330 of the Code of Civil Procedure of the Russian Federation.
Guided by Articles 320-322, 328, 330,
Cancel the decision of the Dolgoprudny City Court of the Moscow Region dated May 15, 2019 in a civil case against I.O. Konstantinov. to Egorov S.A. on the recognition of the sale and purchase transaction invalid, the reclamation of property from someone else's illegal possession.
To make a new decision in the case, which in satisfying the claims of I.O. refuse in full.
Application:
Copies of the appeal - 2 copies.
Date 06.06.2018 Signature Egorov
The document is drawn up in writing. Even if sent through electronic services (now such an opportunity is available in almost every court).
In the “header” of the complaint, the applicant indicates the court that will consider the case. An appeal against decisions of justices of the peace is considered by a higher district court. The decision of the district court, adopted in the first instance, is considered for legality by the higher court of the constituent entity of the Russian Federation.
The person filing the complaint must write in full his last name, first name and patronymic, as well as the place where he lives at the time of drawing up and submitting the document. The text must indicate the full details of the court decision that is being appealed, namely: the name of the court that made the decision, the number of the case, the name of the plaintiff and the defendant, the essence of the claim. This data can be copied from the complained.
The appeal must necessarily contain requirements - this is what is written after the word "ask". Such requirements may be: cancellation of the court decision in whole or in part with the adoption of a new decision, with the termination of proceedings on the case or with the abandonment of the application without consideration.
The complaint must indicate the grounds for canceling the decision. The list of grounds is established by Article 330 of the Code of Civil Procedure of the Russian Federation. Take it as a basis, applying it to a specific court decision and your situation.
At the end, a list of the attached documents must be provided, the complaint must be signed with his own hand by the person submitting it, and the date of filing with the court must be indicated.
Features of an appeal against a court decision
On appeal, both court decisions and rulings are appealed. For definitions, a special procedure is provided, while it is submitted.
Filing an appeal
The appeal is filed with the court that adopted the contested decision. You do not need to send documents to a higher court yourself.
When filing an appeal in person, put a mark on the acceptance of documents by an employee of the office on your copy of the complaint, which you prudently take with you to court. If the complaint is sent to the court by mail, do so by certified mail with acknowledgment of receipt. Then it will be known when the documents arrived at the court.
A prerequisite is the attachment of copies of the complaint according to the number of persons participating in the case. The appeal is paid by the state fee, the original receipt is also attached. You do not need to attach documents that are already in the file. The entire civil case will be investigated in the appellate instance.
The progress of the appeal should be monitored. If the complaint is left without progress, it is necessary to receive a copy of the court ruling in a timely manner and make the necessary amendments within the prescribed period. When returning an appeal, the court also issues a ruling in which it indicates the reasons for such a procedural action.
Acceptance and consideration of the complaint
The court of first instance, after receiving the appeal, decides on the possibility of accepting the complaint. Checks that there are no grounds for leaving or returning documents. If the appeal is accepted, the judge puts a mark on the complaint itself, which is then filed into the case.
After that, copies of the documents are sent to the persons participating in the case. After the expiration of the period for appeal, the materials of the civil case are sent to the court of appeal.
The appellate court shall notify the persons participating in the case of the time and place of the trial. The case is considered according to the rules of the first instance, and ends with the issuance of an appeal ruling. From the moment such a determination is made, the court decision, if it is not canceled, is considered to have entered into legal force. If the decision is canceled, the appeal ruling resolves the case on the merits, it acquires the force of the decision.
The appeal ruling can be appealed to a higher authority by filing.
What is the difference between an appeal against a decision of a magistrate
The appeal against the decision of the magistrate is no different from the appeal against the decision of the district court. Such a complaint is filed through the magistrate, but is addressed to the district court. The appeal against the decision of the magistrate is considered by general rules appeal proceedings.
It should be borne in mind that justices of the peace have the right not to draw up a complete decision without a statement from the persons participating in the case. Therefore, within 3 days from the date of the announcement of the operative part of the decision by the magistrate, it is necessary to submit an application for drawing up a reasoned decision.
Based on the results of consideration of the appeal against the court decision, the district court issues an appeal ruling, which can be appealed only in the cassation instance.
Clarifying questions on the topic
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