Actions of the court of cassation after the receipt of a complaint or presentation
The current CCP orders to bring a complaint (submission) directly to the court of cassation instance, which has the right to begin its study or within ten days from the date of receipt return without consideration essentially . The last procedural action is carried out by the court, if the cassation appeal (representation) does not comply with the requirements imposed on the form and content, the document on payment of the state fee is not attached to the cassation, and he has already treated a similar cassation complaint (submission). In addition, the return without consideration takes place in the following cases: omission of the appeal period in the absence of a judicial decision on its restoration; filing a cassation appeal (submission) by a person who does not have the right to apply to a higher court; receipt of a request for withdrawal of a complaint; non-observance of rules of patrimonial jurisdiction.
After the elimination of the shortcomings that caused the return of the cassation appeal (presentation), they can again be addressed to the court for the purpose of exercising control, but this can not be done by omitting an appeal period that has not been restored.
In the absence of the shortcomings described above, the cassation complaint (representation) and the attached materials are studied by the judge of the court of the subject of the United States within a period not exceeding one or two months, whether a civil case was claimed, and a judge of the Supreme Court of the United States - respectively two and three months, not counting the time from the day of the claim. The Chairman of the Supreme Court of the United States, as well as his deputy may extend the term, but not more than two months. At the same time, such reclaim is carried out only when necessary, in connection with which, if there is a request of the cassation, the judge has the right to make a determination on the suspension of the execution of the decision.
Based on the results of examination of the cassation appeal (submission) to the cassation or refuses to transfer them to the cassation instance court, or the documents are sent to the court session for further production, which is drawn up by an appropriate definition, which is not subject to appeal, and the procedural law, unfortunately, does not establish the grounds or conditions for the implementation of the specified procedural actions, as correctly done in Art. 300 agro-industrial complex. At the same time, it should be borne in mind that the Chairman of the Supreme Court of the United States and his deputy have the right to disagree with the decision on the refusal and revoke it, having transferred the cassation appeal (representation) together with the case for consideration in the court session of the cassation instance court (Article 381 of the CCP). Consequently, the chairmen and their deputies of the courts of the US subjects do not have a similar right.
If the cassation complaint (submission) was referred with the case for later consideration, the court of cassation instance shall send to the persons participating in the case copies of all necessary documents. Moreover, the Decision of the Plenum of the Supreme Court of the USA No. 29 emphasizes that, based on the arguments about what constitutes a material violation of material or procedural law that led to a mistake, the court of cassation instance decides whether it is necessary to send copies of the filed additions to the original cassation complaint to the persons participating in the case, as well as the advisability of adjournment of consideration of the complaint with the case in the court session and the appointment of a new date and time of such a meeting. The time for consideration of the cassation appeal (representation) in the court session is appointed so that the persons participating in the case have the opportunity to appear in time on the court, however their failure to appear does not interfere with the conduct of the proceedings. The said persons have the right to apply for participation in the court session by using videoconferencing systems in accordance with the procedure established by Art. 155.1 CCP.
The time for consideration of the case by the court of cassation instance is differentiated depending on its place in the judicial system, therefore the total term is a month, but not more, and in the Supreme Court of the USA it should not exceed two months from the date of the judge's decision to transfer the complaint with the case for consideration on the merits.
The case, resolved by way of cassation in the presidium of the relevant court, is reported by the chairman of the court, his deputy or on their instructions by another member of the presidium, or by another judge of the court that did not participate in it before. In the Judicial Board of Administrative Cases of the Supreme Court of the United States, the Judicial Board of Civil Cases of the Supreme Court of the United States, the Military Collegium of the Supreme Court of the United States, the complaint with the case is reported by one of the judges of the proper college.
The speaker covers the circumstances of the legal conflict, the contents of the previously adopted judicial decisions, the arguments and motives of the complaint (submission) and sets out the essence of the court's decision to transfer the complaint with the case for consideration in the court of cassation.
After this, the persons participating in the case, representatives, the prosecutor and other subjects who applied to the court of cassation instance, if their rights and legitimate interests are directly affected by the appealed judicial act, give their explanations. The first is always the casser or the prosecutor who filed the presentation. If both parties initiated the commencement of the cassation proceedings, the plaintiff first gives an explanation to the court.
The procedural law does not provide for the court of cassation instance to provide and study new evidence, since the judicial authority does not have the authority to establish factual circumstances (Article 390 of the CCP). This does not mean that interested parties in their own explanations can not refer to evidence that has not been claimed and investigated by lower courts. But these are not studied by the court of cassation and can not be taken into account when deciding on a complaint (submission). However, as explained in the Decision of the Plenum of the Supreme Court of the USA No. 29, if the court of cassation instance finds that the courts of the first and (or) appellate instances violated the norms of procedural law in the study and evaluation of evidence, leading to an error of a significant and irresistible nature for example, a court decision in violation of the requirements of Article 60 of the CCP is based on inadmissible evidence), the court takes into account these circumstances when issuing a cassation decision (determination).
It is not clear whether the prosecutor provides a conclusion in the case in cassation proceedings, as Ch. 41 ГПК about it does not hold back. Representatives of the Supreme Court of the United States in this connection indicate that the civil procedural law does not really contain the rule on giving the prosecutor participating in the consideration of the case in a court of higher instance the conclusion on the case. However, in accordance with Part 3 of Art. 45 of the Code of Civil Procedure in cases where the law provides for the prosecutor to enter the process and give them an opinion (for example, on eviction cases, on reinstatement at work), the prosecutor issues a conclusion on the case (V. Yu. Zaitsev) in order to carry out the powers assigned to him.
Litigation as part of the court session in the cassation proceedings are absent.
During the consideration of the case in the court of cassation instance, all issues are resolved collectively by a majority of votes, i.е. presiding and not less than two judges. With an equal number of votes cast for and against the review of the decision, the cassation appeal (representation) is considered rejected. However, such a situation can not arise in the Judicial Board for Administrative or Civil Affairs of the Supreme Court of the United States, since it consists of three judges.
Based on the results of the consideration of the case, the presidium of the court of cassation takes a ruling, and the judicial panels of the Supreme Court of the United States pass definitions, which are declared in accordance with the general rules of Art. 194 and 194 of the GPC, i.e. the court of cassation instance has the right to disclose in the meeting only the operative part of its resolution (determination), explaining when and where the persons participating in the case, their representatives can get acquainted with the final motivated law enforcement act. The cassation ruling (ruling) comes into force from the day it was adopted.
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