Powers of the appellate court when reviewing the appeal...

Powers of the appellate court when reviewing the appeal, presentation

The powers of the appellate court when reviewing appeals, submissions in an imperative form are fixed in art. 328 GPC. In accordance with this article, the appellate court, re-examining the case, taking into account the arguments of the appeals received, the submissions, objections of the persons participating in the case, as well as the examination of the new evidence submitted to the court of appeal, may:

- leave the judgment of the court of first instance unchanged, and the appellate complaint, the submission - without satisfaction. This power can be exercised by the appellate court if in the process he will come to a conclusion about the correctness of his consideration in the first instance and the legality of the decision taken on him. In this case, the appellate court shall make an appellate ruling that comes into force from the date of its adoption, specifying the grounds on which the arguments of the complaint, their submissions were found to be incorrect, inconclusive, unconfirmed by the evidence gathered in the case and not being grounds for the court decision to be canceled first instance. LA Prokudin points out that the motives for the adoption by the appellate instance of the definition must necessarily be set out in it;

- cancel or change the decision of the court of first instance in full or in part and adopt a new decision in the case . If the court of appellate instance, having established the validity of the decision of the court of first instance on the rights and obligations of the parties, will re-examine the case on the need to change it in part (for example, on increasing or decreasing the recovered sums, motivating or resolutive part, etc.). ), he is entitled to change part of this decision. If the court establishes an appellate instance in the process of reconsideration of the case admitted by the first instance in its initial examination of material errors, it has the right to revoke it completely and to adopt a new decision in the case.

This is due to the fact that the domestic institute of appellate proceedings has the character of a full appeal, and therefore the appeal court has no such power as the cancellation of the decision in whole or in part with the referral of the case for fresh consideration to the court of first instance. >

It should take into account the imperative prescription of Part 3 of Art. 445 of the CCP, according to which, when a decision of a court is annulled in a court of appeal but in the case of recovery of alimony, the turn of execution of a court decision is allowed only in cases where the canceled court decision was based on false information provided by the plaintiff or submitted false documents;

- revoke the decision of the court of first instance in full or in part and terminate the proceedings or leave the application without consideration in whole or in part. In the process of reconsideration of the case, the court of appellate instance has the right, having canceled the decision of the court of first instance in whole or in part, to stop the proceedings in the case (respectively, in full or in part, in which the judgment of the first instance court is quashed) in the presence of the grounds provided for in Art. 220 CCP, or leave the application without consideration, if the grounds foreseen by Art. 222 GPC.

If a court of appeal revokes a decision of the court of first instance in full or in part and leaves a statement on the grounds of Art. 222 ГПК without consideration after elimination of the circumstances which have served as the basis for this, the interested person has the right to apply again to the court of first instance with the application in the general order;

- leave the appellate complaint, the submission without consideration on the merits, if the complaint, the submission is filed after the expiration of the appeal, and the issue of restoring this term is not resolved.

As we see, the court of appellate instance does not have the authority associated with the cancellation of the court decision and the direction of the civil case to the court of first instance for a new consideration, but in practice it is implemented, since the legal position of the Constitutional Court of the USA, which is expressed in the Definition from 03.07.2007 No. 623-0-P "At the request of the Novooskolsky District Court of the Belgorod Region on the verification of the constitutionality of the fourth paragraph of Article 328 of the Code of Civil Procedure of the United States". In particular, the constitutional review body noted that Art. 328 of the CCP can not be considered as preventing the court of appeal from repealing the decision of the justice of the peace if it considers a case in violation of the rules of jurisdiction and to refer the case to the court to which the case is attributed by law, or (in case this case is within the jurisdiction of the court itself) take it to its production as a court of first instance. A different interpretation of this statute would make it impossible to correct a significant (fundamental) judicial error committed in the course of the trial in the court of first instance, would violate the right of interested persons to consider their case in that court and the judge to whose jurisdiction it is attributed by law, which does not agree with the very essence of justice, and would create a normative prerequisite for the violation of Art. 17 (parts 1 and 2), 18, 46 (part 1 and 2), 47 (part 1), 55 (part 3) and 56 (part 3) of the US Constitution, art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 14 of the International Covenant on Civil and Political Rights.

In connection with the abovementioned decision of the Plenum of the Supreme Court of the United States of 19 June 2011, 13 it is explained that the violation by the first instance court of procedural law norms establishing the rules of jurisdiction is not grounds for application by the court of appellate instance p. 1 part 4 art. . 330 GPC. In the presence of these violations, the court of appellate instance in accordance with Art. 47 of the Constitution and Part 2 of Art. 33 GIC cancels the decision of the court of first instance on the grounds of Part 3 of Art. 330 ГПК and sends the case to the court of first instance, to the jurisdiction of which the law refers its consideration. Thus, the case may be referred to the court of first instance for trial if, in violation of the rules of jurisdiction, it is indicated in the appeal, the submission and the court of appellate instance will establish that the person who filed the complaint or the prosecutor who brought the submission submitted a petition in the court of first instance on the lack of jurisdiction of the case to this court or that they did not have the opportunity to declare in the court of first instance such a motion because of their ignorance of the time and place of the court session or the lack of participation in the case; if due to violation of the rules of patrimonial jurisdiction in cases involving state secrets or rules of exclusive jurisdiction under claims for immovable property rights, there was no opportunity to collect, examine and assess as relevant and admissible evidence information constituting state secrets or located at the location real estate, which could lead to a wrongful decision on the merits of the court decision.

Failure to comply with the rules of jurisdiction is not the only reason for the civil case to be sent by the court of appeal to the lower court, for example, if the court, having examined the substantive substantive claim, considered the case in the absence of any of the persons , participating in the case and not notified of the time and place of the court session, or resolved the issue of rights and obligations of persons not involved in the case. In the Decision of the Constitutional Court of the USA of 21.04.2010 No. 10-P "On the case on the verification of the constitutionality of part one of Article 320, part two of Article 327 and Article 328 of the Civil Procedure Code of the United States in connection with the complaints of the citizen EV Aleinikova and the society with limited liability company "Three K" and the requests of the Norilsk city court of the Krasnoyarsk Territory and the Central District Court of the city of Chita it is explicitly emphasized that Art. 328 of the CCP does not comply with the US Constitution insofar as it does not provide for the jurisdiction of the court of appeal to refer the case to a justice of the peace for re-examination in cases where the justice of the peace has examined it in the absence of any of the persons participating in the case and not notified of time and place of the court session, or resolved the issue of rights and obligations of persons not involved in the case. Consequently, the legislator, drastically changing in December 2010 the institute of appeal on civil cases and putting it into effect a year later, evaded his obligation to fulfill the imperative injunctions of the Constitutional Court of the United States regarding Art. 328 CCP and some other procedural rules. Apparently, such an obligation will not be realized in the near future, since the Constitutional Court of the USA radically changed its legal position, pointing out in its Definition 17.01.2013 No. 1-0 "On refusal to accept the complaint of Denis Kanarsky, a citizen of Kanarskiy, for violating his constitutional rights Article 328 and part five of Article 330 of the Code of Civil Procedure of the United States ", that if the court considered the substantive requirements in the absence of any of the persons participating in the case and not notified about the time and place of the court session, this is not the basis for sending the case for a new consideration. Thus, the order of implementation of the principle of procedural equality of the plaintiff and the respondent has been questioned, since in this case one of the parties loses the right to appeal against the decision taken in the civil case.

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