Appeal against the decision of the arbitration court sample. Appeal against the decision of the arbitration court. Arbitration Court of the Kirov Region
A brief appeal to the arbitration court is used quite often. It is worth noting the fact that there is no such legal term.
This is just a colloquial common expression, it is also called - a preliminary decision arbitration court. Lawyers use and use this technique as a countermeasure in response to the tricks of judges and their assistants.
About what kind of problems can be avoided by writing a brief complaint, what kind of goals can be achieved as a result of using this tool and will be discussed in our article. The information presented will be very useful and interesting in any case. So read carefully.
In this article:
How to write a short appeal against the decision of the arbitration court
The drafting of this document should be done as clearly and accurately as possible. It is necessary to take into account the fact that the reasons that prompted to, must be stated in such a way that they make it clear to the court about what violations there are when making a decision.
The task is really difficult. This requires experience and knowledge in the field of law. It is better to seek help from a law firm.
The courts very often leave such complaints without movement.
And for completely different reasons, such as:
- Wrong complaint.
- Lack of indications of any events of importance.
- Failure to comply with the deadline for filing a complaint.
- Violation of other procedural rules.
Frankly, very often, these so-called reasons are just a screen or veil to hide the true reasons.
In order to better understand the essence of this problem, you need to talk about when and under what circumstances the concept of a brief appeal appeared in.
When is a Complaint Necessary?
During the period of transition from the Soviet system of law to the modern Russian one, there was a sharp increase in the number of subjects who began to master the so-called economic activity. As a result, the demand for dispute resolution in the arbitration court has increased significantly.
It should be noted that earlier the court decision took ten days to come into force, but now a month should pass. Due to the heavy workload of judges, they simply did not have time to make a final decision on the case.
Thus, a situation was created that after the judges, those who wished to file an appeal court acted belatedly.
Therefore, experienced lawyers began to file an appeal without waiting for the judge to issue a reasoning, that is, the final part of the decision. The basis for filing a complaint, in this case, is the presence of the operative part, which the judge announces at the meeting.
To eliminate such conflicts, the legislator changed the terms for the entry of court decisions into longer ones. However, the demand for arbitration continues to grow and judges have not become less busy. Based on this, the concept of a brief complaint in the arbitration process remained relevant.
Some nuances related to complaints
As mentioned above, the judges of arbitration courts are overloaded with work. It really is. Therefore, untimely decisions appear in their work. In general, it is worth clarifying that the judge has five days to draw up a motivational part and make a full reasoned decision on the case.
Despite this, participants in arbitration often receive letters from the courts, the content of which indicates that, due to heavy workload, the five-day deadline is being postponed.
When announcing the operative part at a court session, this date is set, and after the final decision is made, the judges do not change it.
Thus, there is an artificial omission of deadlines for filing an appeal. That's why a brief complaint is needed in the arbitration process.
The tricks that have been given may be faced by an arbitrator if he does not have experience in such cases.
And since a brief complaint requires a special approach in writing, such an inexperienced person, as a rule, makes a mistake, the court ignores it, and then the chances of filing an appeal on time turn into nothing.
What should a brief complaint contain?
In fact, a brief complaint differs from the usual one in the content of the essence of the problem. In other words, in the place where the reasons for disagreeing with the decision of the court of first instance are indicated, brevity is needed.
Again, the wording should be such that the essence of the problem is not lost. At the same time, it must be taken into account that an ordinary complaint is written based on the content of the motivational part and on it.
A brief complaint is drawn up in the absence of information about the motives for the decision by the court. However, one cannot build one's arguments on the resolutive part alone. The court may leave it without motion, pointing to unreasonableness.
Therefore, it is necessary, at least partially, to foresee the motivational part and use interpretations that are relevant to the final decision of the court.
All these difficulties can be easily overcome by an experienced arbitration lawyer. Call us and we will tell you what your brief appeal to the arbitration court should contain. A sample for general writing can be downloaded from our website.
Generalizations and useful advice when filing a preliminary appeal with an arbitration court
So, a brief complaint to the arbitration court should be written if:
- There is a delay in the final decision in the arbitration case.
- There is confidence about what the motivational part will contain.
- There are solid grounds for appeal.
- As an option, delay the consideration of the case.
In other cases, of course, there may be hope for success, but you should not delude yourself too much.
Well, in order for everything to go smoothly, you need to contact a law firm. There are too many nuances, and, therefore, the chances of making a mistake are very high. No need to take risks. This will not lead to success.
An example of a brief appeal to the arbitration court
Below in the word file you can download an example of a brief complaint to arbitration, which will give an idea on how to draw up this procedural document.
Sample appeal against the decision of the arbitration court
In the Fifteenth Arbitration
Court of Appeal
Plaintiff: ______________________
Respondent: ___________________
The address:______________________
Telephone:____________________
Case no. ____________________
APPEALS
on the decision of the Arbitration Court of the Krasnodar Territory in the case on the claim ______________ to __________________ about _________________________________ dated "___" ________ ____
"___"_______ ____, by the decision of the Arbitration Court of the Krasnodar Territory, the claim was fully (partially) satisfied (dissatisfied)
___________________________________________ on this case O ________
(the name or full name of the plaintiff is indicated)
____________________________________________________________________.
(specify the claims made by the plaintiff)
According to this decision, the court found that _____________________
______________________________________________________________________
_____________________________________________________________________.
(the facts established in the court decision on the case are indicated)
However, this decision of the court is unlawful and unreasonable.
Therefore, _____________________ disagrees with the said decision on the following grounds: the court of first instance did not fully examine the evidence in the case, the court’s conclusions do not correspond to the circumstances of the case, the norms of substantive and procedural law were incorrectly applied __________________________________ ________________________________________________________________________
__________________________________________________________________________.
(indicate the grounds on which the person filing the complaint does not agree with the decision of the court)
In this regard, the grounds for ____________________________________
(satisfaction of the claim, refusal of the claim, etc.) was not available.
Therefore, on the basis of the foregoing and in accordance with Articles
_____________________________________________________________________,
(the norms of laws and regulations are indicated, on the basis of which the person filing the complaint substantiates his claims) as well as articles 257, 259, 260 of the Arbitration Procedure Code of the Russian Federation
I BEG:
cancel (or change) the decision of the Arbitration Court of the Krasnodar Territory
dated "___" _________ _____ in case no. _______
o ________________ ___________________________________ in full (or
in part) and adopt a new judicial act (cancel the decision completely or
in part and terminate the proceedings or leave the claim without
consideration in whole or in part).
Appendix:
1. Receipt of sending copies of the appeal to the persons participating in the case.
2. A document confirming the payment of the state duty (or documents confirming the right to receive benefits in the payment of the state duty, or an application for a deferment, installment payment or a reduction in the amount of the state duty).
3. A copy of the contested decision.
4. Additional evidence (documents, certificates, letters, etc.)
5. Power of attorney or other document confirming the authority to sign the appeal.
What are the grounds for filing an appeal?
Any citizen who is one of the parties to the trial has the right to appeal against the decision of the court of 1st instance, if he has reason to believe that the court made an unfair (illegal) decision or did not take into account all the materials and nuances of the case when making it.
The Court of Appeal does not consider the case on the merits, that is, from scratch. But during the appeal proceedings, the parties may present additional evidence in the case and invite witnesses who did not participate (did not appear) in the 1st instance. At the same time, it should be noted that such evidence, like witness testimony, is considered by the courts of the 2nd instance only in cases where the person who filed the appeal manages to prove that they were not presented to the court of the 1st instance for objective reasons.
It is also important to note that the Court of Appeal considers the case only within the limits established in the complaint. This means that if we are talking on appealing only part of the court decision, the case will not be considered on the remaining points (exceptions are made only in relation to the rules of procedural law). Regardless of whether the complaint indicates the need to check the procedural legality of the decision of the court of 1st instance, the duties of the appellate court include checking the decision for compliance with the procedural rules of law.
In order to confirm or refute the legality of decisions taken by lower courts, the appellate court has the right to carry out a full review of decisions for their compliance with the legislation in force in the territory of the Russian Federation. In practice, this is quite rare, but part 2 of Art. 327.1 of the Code of Civil Procedure of the Russian Federation secures such a right for the courts of appeal.
It should be mentioned that the courts of appeal only consider cases in which the decisions of the courts of the 1st instance did not have time to enter into force. According to the norms of the current legislation, a period equal to 30 days from the date of its issuance is allotted for appealing the decision of the court of 1st instance. Thus, you can file a complaint within this period, but your complaint will be transferred to the court of appeal no earlier than one month from the date of the first decision on the case. The exception is cases where the deadline for appeal was missed for a good reason, after which it was restored in court.
Who should file an appeal?
In accordance with Article 320 of the Code of Civil Procedure of the Russian Federation, the plaintiff, the defendant, the prosecutor (if he took part in the consideration of the case), as well as other participants in the process, have the right to file an appeal.
It is important to say that the court may, by its decision, determine the circle of persons who did not take part in the case, but whose interests are affected and, in the opinion of the court, are taken into account in the decision.
In which court, within what time period should I file an appeal and by whom will it be considered?
According to Art. 321 Code of Civil Procedure of the Russian Federation, the appeal is filed through the court that issued the decision in the 1st instance. Thus, if you are going to appeal, for example, the decision of the world court, then refer your complaint there. It should also be noted that, in accordance with the procedural legislation, if a complaint is filed immediately with the appellate instance, it must be redirected to the court of 1st instance in order to comply with the procedural procedure for its filing.
As soon as the deadline for appeal, which we talked about above (one month), expires, the appeal, together with the full set of documents attached to it, must be sent to the court of appeal, and its copies to the participants in the proceedings.
Where is the appeal filed?
The appellate instance is determined depending on which judicial body of the 1st instance considered the case. So, for example, when it concerns the decisions of the world courts, they are appealed to the district courts, where they are considered by the judges alone. When it comes to those decisions that are taken by the courts of district and garrison military, the appeal is carried out in the regional (regional), supreme republican courts and judicial instances of cities of republican significance. In turn, when it comes to the decisions of the latter, adopted in the order of the 1st instance, their consideration is carried out by the collegium for civil proceedings Supreme Court RF.
As for the decisions taken by the district (naval) courts, they are appealed to the Judicial Collegium for Military Personnel of the Armed Forces of the Russian Federation. If the Supreme Court of the Russian Federation was the court of first instance, then the Board of Appeal of the Armed Forces of the Russian Federation will act as the appellate body.
What are the time limits for reviewing appeals?
Art. 327.2 of the Civil Code of the Russian Federation indicates that in the appellate instance (with the exception of situations when the Supreme Court of the Russian Federation or its collegium acts as such), a complaint received by it must be considered within a period not exceeding 2 months from the moment it was received for consideration.
When the Supreme Court of the Russian Federation (collegium of the Supreme Court of the Russian Federation) acts as a court of appeal, then the period for considering complaints is 3 months from the date of their receipt.
Revocation or objections to the appeal?
Art. 262 of the Code of Civil Procedure of the Russian Federation provides that the person who participates in the case (as a rule, this is the defendant or a third person who makes independent claims) draws up a response to the claim. At the same time, the Code of Civil Procedure of the Russian Federation does not contain such a term as objections. We conclude that it is a synonym for the term "review", which is used in everyday life.
A paper is attached to the document, which is confirmed by the words of the author of the review. He must also confirm the fact of sending a response to other participants in the case (postal checks about sending).
If the response is submitted not by a citizen who participates in the case, but by his representative, a power of attorney for the right to represent the interests of the participant in the case is mandatory attached to it.
Don't know your rights?
What is the basis for the appeal to be left without movement, and what are the reasons for its return?
The law stipulates a number of situations in which the appeal may be left without movement by the courts or even there may be a question of its return to the person who filed the complaint.
In particular, it may be left without movement if it does not comply with the requirements of the law in its content. Also, complaints remain without movement in cases where the persons who filed them do not pay the state duty in a timely manner.
If the court finds grounds for leaving the complaint without movement, it must issue a ruling on this no later than 5 days from the date of receipt of the documents by the court. V this definition the court shall set a reasonable time for the complainant to remedy the violations. If the violations are eliminated within the specified period of time, the complaint is considered filed from the moment the documents are first received by the court.
In addition, in several cases, the complaint is returned to the person who filed it:
- if the violations identified by the court were not eliminated within the prescribed period;
- if the period established for appealing against the court decision has expired, and the appeal does not contain a request for its renewal (or this request was rejected by the court);
- in case of withdrawal of the appeal by the person who filed it.
It is important to note that in order to return the complaint, it is necessary for the court to make an appropriate decision. This decision can also be appealed by filing a private complaint.
Rejection of the filed complaint, reconciliation of the parties or conclusion of a settlement agreement
At all stages - from the moment the appeal is accepted until the court issues an appeal ruling - the parties and participants in the process have the right to:
- for reconciliation;
- waiver of claims;
Refusal of the filed appeal is possible until the moment the court of appeal issues its ruling. Refusal means that a person submits a statement that there is no longer any interest in appealing against the decision of the court of 1st instance. On the basis of such an application, the court issues an appropriate ruling, and the proceedings are terminated.
Waiver of claims, recognition of the claim by the defendant, as well as the conclusion of a settlement agreement is also carried out on the basis of the submitted application.
Mandatory attributes of the appeal
In accordance with Art. 322 of the Civil Procedure Code of the Russian Federation, appeal must contain a number of required attributes:
- The name of the court to which this complaint is addressed (we talked about how to determine the addressee above).
- Details of the person making the complaint.
- Details of the court proceedings that resulted in the decision and which you are going to appeal (case number, date of the decision).
- A list of requirements that you put forward. That is, if you demand the cancellation of the said decision completely, then write so; if, for example, you are not satisfied only with the amount of the payment determined by the court, then indicate that you are asking to reconsider its size, etc.
- Justification as to why you believe the court made an illegal or unfair decision, with references to specific rules of law that you believe were violated.
- List of documents that are attached to your complaint. There may be evidence here (if they are presented to the court for the first time, then it is necessary to indicate the circumstances due to which this was not done in the first trial), other materials you have that are relevant to the case under consideration, as well as a document confirming the payment of the state fee.
It is important to note that you cannot make claims on your appeal that you did not make in your first trial. For example, if you are a plaintiff and demanded to recover from the defendant the amount of debt and interest for the use of other people's money, then as part of the appeal proceedings you cannot additionally demand compensation for moral damage.
Appeal must be signed personally by the person submitting it, unless such person acts through his representative. In the latter case, the complaint must also be accompanied by a power of attorney to represent your interests by other persons.
From the plaintiff Komarova Maria Vladimirovna
680010, Khabarovsk, st. Krasnoarmeiskaya, 1, apt. one
APPEALS
On the decision of the Central District Court of the Khabarovsk Territory in case No. 1111 dated March 11, 2017, at the request of Komarova Maria Vladimirovna.
On December 13, 2016, between me and Pavlov Maxim Viktorovich, an agreement was concluded for renting a residential premises located at the address: Khabarovsk, Mirnaya street, house 12, apartment 43, according to which I, as a tenant under the agreement, had to deposit , indicated by Pavlov M.V., sum of money in the amount of 20,000 rubles (twenty thousand rubles 00 kopecks) as a monthly fee until December 15, 2016. According to the terms of clause 1.4 of the said agreement, Pavlov M.V. had to give me the keys to the specified residential premises and provide unhindered access to the apartment from December 16, 2016. Pavlov did not fulfill the present terms of the contract.
In response to a question about the reasons for such actions, Pavlov M.V. explained that he had no desire to rent out the specified apartment, and cash refused to return. On December 20, 2016, I compiled and sent a letter to M. Pavlov, in which I asked for the return of the amount of money unreasonably paid to him, but I never received a response.
On January 13, 2017, I applied to the Central District Court of the Khabarovsk Territory with statement of claim, in which she asked to recover the money paid by me, as well as to recover from the defendant a fine in the amount of 10,000 rubles (ten thousand rubles 00 kopecks), provided for in clause 3.5 of the employment contract concluded between me and Pavlov M.V.
The court, having considered the case in open court, satisfied my demands in part. He recognized my right to receive the funds paid, however, he refused to pay me a fine in the indicated amount, satisfying the defendant's request for the calculation of the penalty at the refinancing rate of the Central Bank of the Russian Federation. Thus, the total amount that the court ordered to pay Pavlova M.V. amounted to 20,412.50 rubles. (twenty thousand four hundred twelve rubles 50 kopecks).
I consider this judgment to be a violation of Art. 330 of the Civil Code of the Russian Federation.
In accordance with Art. 228 and 330 of the Code of Civil Procedure Russian Federation I ask the court to change the decision of the Central District Court of the Khabarovsk Territory in case No. 1111 dated March 11, 2015 in terms of determining the amount of the fine payable by Pavlov M.V. rub. (ten thousand rubles).
Applications:
- a copy of the document confirming the payment of the state fee - 1 copy. for 1 liter;
- copies appeal- 2 copies. for 2 liters;
- copy of the tenancy agreement - 2 copies. for 4 liters;
- a copy of the letter addressed to Pavlov M.V. - 2 copies. for 2 l.
(personal signature) Komarova Maria Vladimirovna
According to statistics, the most common type of protest in judgments This is their appeal. According to the rules of the procedural legislation of Russia, such a role of “intermediaries”, evaluating the accepted rulings of the courts of first instance in disputes related to economic activity, is assigned to arbitration courts of appeal. In the course of these processes, cases are considered, the decisions on which have not entered into legal force. An important milestone when challenging a verdict in arbitration, it is a competent preparation of a complaint, a sample of which we will consider in this article.
Rules of law
The purpose of any appeal is to challenge the illegitimate definition of "Themis". At the same time, arbitration courts act as "defenders" who check the adopted and contested decisions for correctness and fairness. In such instances, conflicts are considered only with the participation of entrepreneurs and enterprises. Their right to appeal is enshrined in Article 257 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the APC of the Russian Federation).
Timing
The rules set for an appeal in arbitration proceedings are almost identical to those in civil proceedings. Thus, a procedural period is allotted for the protest in question - 30 days from the date of the announcement of the decision on the case, as well as for the civil process (Article 259 of the APC). It happens that, due to good reasons, the appellants miss the deadline for appeal, then it must be reinstated at the request submitted for consideration by the judge.
Requirements for a claim
- Introductory;
- descriptive;
- motivational;
- Resolutive.
Let's take a closer look at how to arrange each paragraph.
Introductory block
Here, issue the so-called application header. In it, provide the following information:
- Name of the arbitral tribunal.
- The name of the judicial body through which the complaint is submitted.
- Applicant details:
- Company name of a commercial organization or full name of an individual entrepreneur (IP).
- Legal address of the enterprise / individual entrepreneur.
- Telephone.
- Respondent information.
- Information about all participants in the process.
- Subject of the dispute (number of the appealed decision).
- The amount of state duty paid.
Descriptive block
This part is always preceded by the name of the document. Therefore, in the center of the sheet, write “Appeal” and briefly indicate the data controversial definition. For example, "on the decision of the Arbitration Court of the Kaliningrad Region dated January 1, 2001 in case No. 1." Then describe the details of the process being considered in the first instance. Namely, the essence of the dispute and the decision made on it, as well as all the circumstances relevant to the case.
motivation block
In this paragraph, provide the following information:
- the grounds on which the decision is contested;
- legal assessment of their arguments;
- references to the law.
Important: the motivational part must contain a detailed legal assessment of the violations committed in the arbitration of the first instance.
Resolutive block
In the final part, state your requirements and requests. The main thing is that all of them fall under the authority of Themis, which is considering a controversial case. You can take into account their compliance by referring to article 269 of the APC of the Russian Federation. Below is a list of attached documents. Date and handwritten signature.
