The procedure and limits of consideration of a case in the arbitration court of cassation, in contrast to appellate review. Proceedings in the cassation court The procedure and limits for consideration of cases by the district arbitration court in cassation procedure

Cassation review in accordance with the current Arbitration Procedure Code of the Russian Federation, along with appeal and supervisory proceedings, review based on new and newly discovered circumstances, is one of the ways to eliminate judicial errors in the arbitration process, and is independent stage arbitration process.

Cassation proceedings - an independent stage (enforcement cycle) of the arbitration process, the essence of which lies in the verification by federal arbitration courts of districts of the legality of decisions, decrees, and rulings of arbitration courts of the first and appellate instances that have entered into legal force.

Stages of cassation proceedings

A cassation appeal is filed through the arbitration court that made the decision

- in writing and signed by the person filing the complaint or his authorized representative to sign the complaint, or
- by filling out a form posted on the official website of the arbitration court on the Internet.

More information about the cassation appeal

- name of the arbitration court to which the cassation appeal is filed;
- the name of the person filing the complaint, indicating his procedural position, as well as other persons participating in the case, their location or place of residence;
- name of the arbitration court that adopted the appealed decision, resolution, case number and date of adoption of the decision, resolution, subject of the dispute;
- demands of the person filing the complaint to verify the legality of the complaint judicial act and the grounds on which the person filing the complaint is appealing the decision, resolution, with reference to laws or other regulations legal acts, the circumstances of the case and the evidence available in the case;
- list of documents attached to the complaint.

The cassation appeal may also indicate telephone numbers, fax numbers, e-mail addresses and other information necessary for consideration of the case, and existing petitions may be submitted.

The person filing the cassation appeal must send other persons participating in the case, copies of the cassation appeal and documents attached to it, which they do not have, by registered mail with acknowledgment of receipt, or hand them over to other persons participating in the case or their representatives in person against signature.

The following are attached to the cassation appeal:

1. a copy of the appealed judicial act;
2. documents confirming payment state duty in the established manner and amount, or the right to receive a benefit in the payment of state duty, or a petition for a deferment, installment payment of the state duty, or a reduction in its amount;
3. documents confirming the sending or delivery to other persons participating in the case, copies of the cassation appeal and documents that they do not have;
4. a power of attorney or other document confirming the authority to sign the cassation appeal.

Documents attached to the cassation appeal may be submitted to the arbitration court in electronic form.

The response sent to the arbitration court is also accompanied by a document confirming the sending of the response to other persons participating in the case.

The review is sent by registered mail with acknowledgment of receipt within a period that provides the opportunity to familiarize yourself with the review before the start of the court hearing.

The review is signed by the person participating in the case or his representative. The review signed by the representative is accompanied by a power of attorney or other document confirming his authority to sign the review.

The response may be submitted to the arbitration court by filling out a form posted on the official website of the arbitration court considering the case on the Internet. Documents attached to the response may be submitted to the arbitration court in electronic form.

Leaving the cassation appeal without progress

1. a cassation appeal was filed by a person ineligible to appeal, or filed against a judicial act, which does not appeal in cassation proceedings;
2. cassation appeal filed upon expiration submissions, and does not contain a petition for its restoration or restoration of the missed deadline is refused;
3. before the decision was made to accept the cassation appeal for proceedings, the person who filed the cassation appeal received a petition for its return;
4. the circumstances that served as the basis for leaving the cassation appeal without progress have not been eliminated within the period established in the court ruling;
5. cassation appeal filed against a judicial act that was not appealed to the arbitration court of appeal, unless otherwise provided by this Code;
6. if a request for a deferment, installment payment of the state duty, or a reduction in its amount is rejected.

The arbitration court issues a ruling on the return of the cassation appeal, which can be appealed to the arbitration court of the cassation instance in the manner established by Article 291 of the Code.

A copy of the ruling on the return of the cassation appeal is sent to the person who filed it, together with the cassation appeal and the documents attached to it no later than the next day after the day it was issued or after the expiration of the period established by the court for eliminating the circumstances that served as the basis for leaving the cassation appeal without movement.

If the ruling is canceled, the cassation appeal is considered filed on the day of the initial appeal to the arbitration court.

The return of a cassation appeal does not prevent a repeated application with a cassation appeal to the arbitration court in the general manner after eliminating the circumstances that served as the basis for its return.

Termination of cassation proceedings

According to Art. 282 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of the cassation instance terminates the proceedings on the cassation appeal if, after accepting the cassation appeal for the court's proceedings

1. a petition was received from the person who filed it to abandon the cassation appeal and
2. the refusal was accepted by the court in accordance with Art. 49 of the Code.

In this case, a repeated appeal by the same person on the same grounds to the arbitration court with a cassation appeal is not allowed.

On the termination of proceedings on a cassation appeal, the arbitration court issues a ruling, which can be appealed to the arbitration court of the cassation instance in the manner established in Art. 291 Code.

The determination may resolve questions of distribution between the parties legal expenses, on the return of state duty from federal budget. Copies of the ruling to terminate the cassation appeal proceedings are sent to the persons participating in the case.

The arbitration court of cassation has the right, at the request of persons participating in the case, suspend the execution of judicial acts adopted arbitration court first and appellate instances, provided that the applicant

- justified the impossibility or difficulty of reversing the execution or
- provided security by depositing it into the deposit account of the arbitration court of cassation cash in the amount of the disputed amount or provision bank guarantee, guarantee or other financial security for the same amount.

Bar Exam

Question 266. The procedure and limits of consideration of a case in the arbitration court of cassation, in contrast to appellate review. Powers of the cassation instance of the arbitration court. Grounds for canceling or changing judicial acts in cassation.

Question 266. The procedure and limits of consideration of a case in the arbitration court of cassation, in contrast to appellate review. Powers of the cassation instance of the arbitration court. Grounds for canceling or changing judicial acts in cassation.

The objects of cassation review are exclusively judicial acts that have entered into legal force. Since the cassation court in the arbitration process does not have the right to establish new circumstances of the case, it is given the authority to send the case for a new trial if it discovers a discrepancy between the court's conclusions contained in the decision, resolution, and the factual circumstances of the case established by the courts of the first and appellate instances.

The arbitration court of cassation does not have the right to establish or consider as proven circumstances that were not established in the decision or resolution or were rejected by the court of first instance or appeal, or to prejudge questions about the reliability or unreliability of this or that evidence, the superiority of some evidence over others, or what the norm of substantive law should be applied and what decision or resolution should be made upon a new consideration of the case.

The arbitration court of cassation considers the case in a court session by a collegial composition of judges according to the rules for considering a case by an arbitration court of first instance, provided for by the Arbitration Procedure Code, with the features established in Chapter. 35, except for the cases provided for in part 1.1 of Art. 284 APC.Court intellectual rights how an arbitration court of cassation considers a case considered by it as a court of first instance, in a court session by the presidium of this court according to the rules for considering a case by an arbitration court of first instance, provided for by the APC, with the features established in Chapter. 35. The rules established by the APC only for consideration of a case in the arbitration court of first instance do not apply when considering a case in the arbitration court of cassation, unless otherwise provided (Article 284 of the APC).

The failure of the person who filed the cassation appeal and other persons participating in the case to appear at the court hearing of the arbitration court of the cassation instance cannot serve as an obstacle to the consideration of the case in their absence, if they were duly notified of the time and place of the trial.

The arbitration court of cassation considers a cassation appeal against a judicial act of the arbitration court within a period not exceeding two months from the date of receipt of the cassation appeal along with the case by the arbitration court of cassation, including the period for preparing the case for trial. If the cassation appeal was received by the arbitration court of the cassation instance before the deadline for filing it, the period for consideration of the cassation appeal is calculated from the date of expiration of the deadline for filing the cassation appeal.

The period established by part 1 of Art. 285 of the APC, can be extended on the basis of a reasoned statement from the judge hearing the case by the chairman of the arbitration court for up to six months due to the particular complexity of the case, with a significant number of participants in the arbitration process (Article 285 of the APC).

The arbitration court of cassation examines the legality of decisions and resolutions adopted by the arbitration court of the first and appellate instances, establishing the correct application of substantive law and norms procedural law when considering the case and adopting the appealed judicial act and based on the arguments contained in the cassation appeal and objections to the complaint, unless otherwise provided by the APC (Article 286 of the APC).

Regardless of the arguments contained in the cassation appeal, the arbitration court of the cassation instance checks whether the arbitration court of the first and appellate instances has violated the rules of procedural law, which are in accordance with Part 4 of Art. 288 of the Arbitration Procedure Code as a basis for canceling the decision of the arbitration court of the first instance, the decision of the arbitration court of appeal.

When considering a case, the arbitration court of cassation checks whether the conclusions of the arbitration court of the first and appellate instances on the application of the rule of law correspond to the circumstances established by them in the case and the evidence available in the case.

In the arbitration process, cassation control is limited to checking legality, i.e. the correct application of the norms of substantive and norms of procedural law by lower courts when they adopted the appealed act. On the other hand, verification of the legality of the appealed act is carried out within the limits of the arguments of the cassation appeal and objections to the complaint submitted to the cassation court by other participants in the process.

Powers of the cassation instance of the arbitration court. Based on the results of consideration of the cassation appeal, the arbitration court of the cassation instance has the right (Article 287 of the APC):

Leave the decision of the arbitration court of first instance and (or) the decision of the appellate court unchanged, and the cassation appeal not satisfied;

Cancel or change the decision of the court of first instance and (or) the decision of the court of appeal in whole or in part and, without remitting the case for a new trial, adopt a new judicial act if the factual circumstances relevant to the case are established by the arbitration court of the first and appellate instances on on the basis of a full and comprehensive study of the evidence available in the case, but this court incorrectly applied the rule of law, or the legality of the decision, the ruling of the arbitration court of the first and appellate instances is re-verified by the arbitration court of cassation in the absence of the grounds provided for in paragraph 3 of part 1 of Art. 287 agrarian and industrial complex;

Cancel or change the decision of the court of first instance and (or) the decision of the appellate court in whole or in part and send the case for a new trial to the appropriate arbitration court, the decision, whose decision was canceled or changed, if this court violated the rules of procedural law that are in accordance with Part 4 Art. 288 of the APC as a basis for canceling a decision, resolution, or if the conclusions contained in the appealed decision or resolution do not correspond to the factual circumstances established in the case or the evidence available in the case. When sending a case for a new trial, the court may indicate the need to consider the case by a collegial composition of judges and (or) in a different judicial composition;

Cancel or change the decision of the court of first instance and (or) the decision of the court of appeal in whole or in part and transfer the case to another arbitration court of the first or appellate instance within the same judicial district, if these judicial acts are re-verified by the arbitration court of cassation and the conclusions contained therein do not correspond to the factual circumstances established in the case or the evidence available in the case;

Leave in force one of the previously adopted decisions or resolutions in the case;

Cancel the decision of the court of first instance and (or) the decision of the court of appeal in whole or in part and terminate the proceedings or leave statement of claim without consideration in whole or in part.

The grounds for changing or canceling a decision or resolution of the arbitration court of the first and appeal instances are the discrepancy between the court's conclusions contained in the decision, resolution, the actual circumstances of the case established by the arbitration court of the first and appeal instances, and the evidence available in the case, violation or incorrect application of substantive law or norms of procedural law (Article 288 of the APC).

Incorrect application of substantive law is:

1) non-application of the law to be applied;

2) application of a law that is not subject to application;

3) misinterpretation of the law.

Violation or incorrect application of procedural law is grounds for changing or canceling a decision or ruling of an arbitration court, if this violation led or could lead to the adoption of an incorrect decision or ruling.

The grounds for canceling a decision or ruling of an arbitration court in any case are:

1) consideration of the case by an arbitration court in an illegal composition;

2) consideration of the case in the absence of any of the persons participating in the case and not properly notified of the time and place of the court hearing;

3) violation of language rules during the consideration of the case;

4) adoption by the court of a decision, ruling on the rights and obligations of persons not involved in the case;

5) failure to sign a decision, resolution by a judge or one of the judges, or signing of a decision, resolution by judges other than those indicated in the decision, resolution;

6) the absence of a protocol of the court session in the case or its signing by persons other than those specified in Art. 155 agro-industrial complex;

7) violation of the rule on the secrecy of meetings of judges when making a decision or resolution.

Based on the results of consideration of the cassation appeal, the arbitration court of the cassation instance adopts a judicial act, called a resolution, which is signed by the judges who considered the case (Article 289 of the APC).

From the book Arbitration process Ural Code of the Russian Federation author Laws of the Russian Federation

Article 286. Limits of consideration of a case in the arbitration court of the cassation instance 1. The arbitration court of the cassation instance verifies the legality of decisions and resolutions adopted by the arbitration court of the first and appellate instances, establishing the correct application

From the book Civil Procedure Code author Laws of the Russian Federation

Article 287. Powers of the arbitration court of the cassation instance 1. Based on the results of consideration of the cassation appeal, the arbitration court of the cassation instance has the right to: 1) uphold the decision of the arbitration court of the first instance and (or) the decision of the court of appeal

From the book Civil Procedure Code Russian Federation Text with changes and additional as of May 10, 2009 author Team of authors

Article 347. Limits of consideration of the case in the cassation court 1. The cassation court verifies the legality and validity of the decision of the first instance court based on the arguments set out in cassation appeals e, representation and objections regarding the complaint,

From the book Arbitration Procedural Code of the Russian Federation. Text with changes and additions as of October 1, 2009. author Author unknown

Article 348. Time limits for consideration of a case in a court of cassation 1. Supreme Court republics, regional, regional courts, city courts federal significance, court autonomous region, the court of the Autonomous Okrug, the district (naval) military court must consider what is received according to

From the book Commentary on the Arbitration Procedural Code of the Russian Federation (article-by-article) author Vlasov Anatoly Alexandrovich

ARTICLE 347. Limits of consideration of the case in the cassation court 1. The cassation court verifies the legality and validity of the decision of the first instance court based on the arguments set out in the cassation appeal, presentation and objections to the complaint,

From the book Civil Procedure Law. Cheat sheets author Petrenko Andrey Vitalievich

ARTICLE 348. Time limits for consideration of the case in the court of cassation 1. The Supreme Court of the Republic, the Territory, Regional Court, the Court of a Federal City, the Court of the Autonomous Region, the Court of the Autonomous District, the District (Navy) Military Court must consider what is received according to

From the book The Bar Exam by the author

From the author's book

Article 286. Limits of consideration of the case in the arbitration court of cassation 1. Verification of the legality of the appealed judicial acts of the arbitration court of the first and appellate instances current law, unlike the previous one, is not produced in full

From the author's book

Article 287. Powers of the arbitration court of cassation 1. The powers of the arbitration court of cassation include the entire set of means necessary to use based on the results of consideration of the complaint: a) leaving the decision of the arbitration court first

From the author's book

36. Participation of the prosecutor in the court of cassation and in the stage of review of the case by way of supervision According to the Civil Procedure Code, the prosecutor not only has the right to apply to the court with a statement in defense of the rights and legally protected interests of other persons, but also to take part in the process

From the author's book

Question 214. Cassation proceedings in civil process (general characteristics). Limits of consideration of the case in the cassation instance. Cassation proceedings in civil proceedings are civil proceedings to verify the legality and

From the author's book

Question 264. The procedure for considering a case by the arbitration court of appeal. Powers of the appellate authority. Grounds for canceling or changing judicial acts. Contents of the decision of the arbitration court of appeal. Arbitration Court of Appeal

From the author's book

Question 269. Consideration of the case by way of supervision in the Presidium of the Supreme Arbitration Court of the Russian Federation, powers of the Presidium. Grounds for changing or canceling judicial acts in the manner of supervision. Persons participating in the case are notified of the time and place of consideration of the case for review

From the author's book

Question 412. The inadmissibility of worsening the situation of the convicted person during the consideration of the case in the cassation instance. Cancellation of acquittal. Consideration of the case by the court of first instance after the original verdict has been annulled. Inadmissibility of worsening the situation

From the author's book

Question 413. Production in supervisory authority: concept, meaning, difference from appellate and cassation proceedings. Requirements for supervisory complaint, the procedure for its submission and consideration. Types of decisions and limits of rights of the supervisory court

The legality of the adopted judicial acts was verified by the Federal Arbitration Court of the Volga-Vyatka District in the manner established in the Arbitration Procedural Code of the Russian Federation. Based on clause 17 of part 4 of article 1 of Federal Law N 294-FZ, the specifics of organizing and conducting inspections in terms of the type, subject, grounds for inspections, timing and frequency of their conduct, notifications of unscheduled on-site inspections and coordination of unscheduled on-site inspections with prosecutor's office may be established by others federal laws, including in the implementation of federal state fire supervision. Within the meaning of this norm, in the presence of special rules contained in the federal legislation on fire safety regulating the listed issues, the corresponding general provisions of Federal Law N 294-FZ are not subject to application when organizing and implementing federal state fire supervision.

Guided by Art. Art. 284 - Arbitration Procedural Code of the Russian Federation, court

Resolved:

Decision of the Moscow Arbitration Court dated 01.08.2005, Resolution of the Ninth Arbitration Court court of appeal No. 09AP-10904/05-AK dated November 29, 2005 in case No. A40-13383/05-129-96 is left unchanged, and the cassation appeal of the Sistema Holding Limited Company is not satisfied.

Page 2 of 3

18.4. Procedure for initiating cassation proceedings

Initiation of cassation proceedings is carried out by filing a cassation appeal in the manner prescribed by law and accepting it for processing by the cassation authority.

In accordance with the norm of Art. 275 of the Arbitration Procedure Code of the Russian Federation, the procedure for filing and moving a cassation appeal occurs through the court of the constituent entity of the Russian Federation that adopted the appealed judicial act. This procedure is optimal, since in this case the complaint is submitted to the cassation court along with the case file, without which consideration of the complaint is impossible. Violation of this rule can lead to serious negative consequences for the applicant: the return of the cassation appeal, as well as the impossibility of restoring the deadline for the cassation appeal missed for this reason, which judicial practice often not recognized as respectful.

According to Part 1 of Art. 276 of the Arbitration Procedure Code of the Russian Federation, the period for cassation appeal is two months from the date of entry into force of the appealed judicial act.

Accordingly, the two-month period for cassation appeal of the decision of the arbitration court of first instance, which ends the consideration of the case on the merits, begins after the expiration of a month from the date of the decision, if no appeal, or from the date of adoption of the decision by the arbitration court of the appellate instance, unless the decision is canceled or changed during the appeal review.

The procedure and deadlines for appealing rulings in accordance with Art. 188 of the Arbitration Procedure Code of the Russian Federation have some features. In the cassation procedure, separately from the judicial act adopted on the merits of the dispute, a ruling made in the form of a separate judicial act may be appealed in cases where an appeal of such a ruling is provided for by the Arbitration Procedure Code of the Russian Federation or when this ruling prevents the further progress of the case. According to Part 3 of Art. 188 of the Arbitration Procedure Code of the Russian Federation, if another period for appealing such determinations is not expressly established in the code, the complaint can be filed within a month from the date of the determination.

Established part 2 of Art. 276 of the Arbitration Procedure Code of the Russian Federation, a six-month period allowing for the restoration of the period for cassation appeal, by virtue of Part 2 of Art. 117 of the Arbitration Procedure Code of the Russian Federation is preemptive and cannot be restored if it is missed.

From the moment of expiration of six months after the deadline for filing a cassation appeal, the right itself ceases interested person for a cassation appeal. In this case, the cassation appeal is not subject to consideration in any case, regardless of the reasons for missing the deadline for filing it. By virtue of Part 3 of Art. 117 of the Arbitration Procedure Code of the Russian Federation, a petition to restore the deadline for filing a cassation appeal is submitted together with the cassation appeal and is considered individually by a judge of the cassation instance within a five-day period; the restoration of the deadline is indicated in the ruling on accepting the cassation appeal for proceedings (Part 4 of Article 276 of the Arbitration Procedure Code of the Russian Federation). The petition to restore the period for cassation appeal is considered without notification and without the participation of persons participating in the case (Part 4 of Article 117 of the Arbitration Procedure Code of the Russian Federation).

Established in Art. 277 of the Arbitration Procedure Code of the Russian Federation, the list of requirements for the form and content of a cassation appeal is exhaustive.

A cassation appeal must be a written document signed by the person filing the appeal or his authorized representative. A complaint in mandatory written form must contain necessary information and details (parts 2 - 4 of Article 277 of the Arbitration Procedure Code of the Russian Federation), failure to comply with the requirements for the form and content of the cassation appeal by virtue of Part 1 of Art. 280 of the Arbitration Procedure Code of the Russian Federation entails negative legal consequences for the applicant.

The cassation appeal must indicate:

Name of the arbitration court to which the cassation appeal is filed;

The names of the person filing the complaint, indicating his procedural position, as well as other persons participating in the case, their location or place of residence;

name of the arbitration court that adopted the appealed decision, resolution, case number and date of adoption of the decision, resolution, subject of the dispute;

The requirements of the person filing the complaint to verify the legality of the appealed judicial act and the grounds on which the person filing the complaint appeals the decision, resolution, with reference to laws or other regulatory legal acts,
the circumstances of the case and the evidence available in the case;

List of documents attached to the complaint;

Other information, requests.

The applicant must indicate in the cassation appeal the desired result of the review, taking into account the list of powers of the cassation court named in Art. 287 of the Arbitration Procedure Code of the Russian Federation: should the appealed act be canceled or amended and at the same time a new decision be made; or the case should be referred for a new trial; leave the claim without consideration or terminate the proceedings; leave unchanged the previously adopted judicial act in the case.

The following are attached to the cassation appeal:

A copy of the appealed judicial act;

Documents confirming the payment of the state duty in the established manner and amount or the right to receive benefits for the payment of the state duty, or a petition for a deferment or installment payment of the state duty
duties, to reduce its size;

Documents confirming the sending or delivery to other persons participating in the case, copies of the cassation appeal and documents that they do not have;

A power of attorney or other document confirming the authority to sign the cassation appeal.

It should be noted: in Art. 277 of the Arbitration Procedure Code of the Russian Federation expressly states that the applicant’s obligation to serve copies of the complaint and documents attached to it can be fulfilled by direct delivery to other persons participating in the case, personally against signature. From paragraph 3, part 4, art. 277 of the Arbitration Procedure Code of the Russian Federation it follows that a postal receipt for sending registered letters with notification to persons participating in the case is a document confirming the fulfillment by the applicant of the obligation to send to other persons participating in the case copies of the cassation appeal and documents that they do not have (Part 3 Art. 277 of the Arbitration Procedure Code of the Russian Federation). Thus, the mere absence of return notification cards in the appendix to the complaint confirming the delivery of correspondence does not in itself constitute a defect in the form and content of the cassation appeal.

18.5. The procedure for considering a case in the arbitration court of cassation

The procedure for accepting a cassation appeal to the arbitration court is determined by the norm of Art. 278 of the Arbitration Procedure Code of the Russian Federation, which states that only a cassation appeal filed in compliance with the mandatory requirements is the basis for initiating cassation proceedings. The discrepancy between the form and content of the cassation complaint is an obstacle to review and grounds for leaving the complaint without progress until the shortcomings are eliminated (Article 280 of the Arbitration Procedure Code of the Russian Federation) or the return of the complaint (Article 281 of the Arbitration Procedure Code of the Russian Federation). In any case, the persons participating in the case have the right to expect consideration of the issue of accepting or leaving the filed complaint without progress no later than five days from the date of receipt of the complaint by the cassation court.

Leaving a cassation appeal without progress is carried out by the arbitration court of the cassation instance, provided that it was filed in violation of the requirements established by the Arbitration Procedure Code of the Russian Federation, and is formalized by issuing a ruling, a copy of which is sent to the person who filed the cassation appeal, no later than the next day after the day of its issuance.

The definition specifies:

Grounds for leaving the cassation appeal without progress;

The period during which the person who filed the cassation appeal must eliminate the circumstances that served as the basis for leaving the cassation appeal without progress.

If the circumstances that served as the basis for leaving the cassation appeal without progress are eliminated within the period specified in the court's ruling, the cassation appeal is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court of the cassation instance.

Otherwise, if the specified circumstances are not eliminated, the arbitration court returns the cassation appeal and the documents attached to it to the person who filed the appeal.

Grounds for returning the cassation appeal:

A cassation appeal was filed by a person who does not have the right to appeal a judicial act in cassation proceedings, or filed against a judicial act that is not appealed in cassation proceedings;

The cassation appeal was filed after the expiration of the deadline for filing a cassation appeal and does not contain a request for its restoration or the restoration of the missed deadline was refused;

Before the decision was made to accept the cassation appeal for processing by the arbitration court of the cassation instance, the person who filed the cassation appeal received a petition for its return;

The circumstances that served as the basis for leaving the cassation appeal without movement have not been eliminated within the period established in the court ruling;

If a request for a deferment, installment payment of the state fee, or a reduction in its amount is rejected.

The arbitration court issues a ruling on the return of the cassation appeal, a copy of which is sent to the person who filed it, along with the cassation appeal and the documents attached to it. The referral occurs no later than the next day after the day the ruling was made or after the expiration of the period established by the court to eliminate the circumstances that served as the basis for leaving the cassation appeal without progress on its own, including in the case of a decision in this definition the issue of refusal to satisfy the petition for restoration of the missed deadline for the cassation appeal (part 2 of article 276, part 2 of article 278 of the Arbitration Procedure Code of the Russian Federation). The decision to return the cassation appeal can be appealed by the applicant in cassation procedure (Part 1 of Article 291 of the Arbitration Procedure Code of the Russian Federation). After eliminating the circumstances that served as the basis for returning the cassation appeal, the returned complaint can be filed again “in the general manner” (Article 281 of the Arbitration Procedure Code of the Russian Federation), i.e. in compliance with established rules. Consequently, if the period for cassation appeal expires at the time of re-filing the cassation appeal, the person who filed the complaint must also submit a petition to restore the missed period.

Preparation for consideration of the case in the cassation instance

At the stage of preparing the cassation appeal for consideration by the arbitration court of the cassation instance, the necessary actions are taken to create conditions that allow solving the special procedural task of the cassation review: notifying the persons participating in the case about the time and place of consideration of the cassation appeal by sending a ruling; resolution of petitions for securing a claim and suspension of execution of appealed acts; studying the cassation appeal and case materials; termination of proceedings on a cassation appeal in cases provided for by the Arbitration Procedure Code of the Russian Federation.

At the request of the applicant, it is possible to suspend the execution of appealed judicial acts (rulings, decisions or orders of the court of first and appellate instances) in accordance with Part 1 of Art. 283 Arbitration Procedure Code of the Russian Federation. Suspension of the execution of the appealed act, as a rule, must be accompanied by the provision by the applicant of counter financial security, allowing the other party to compensate in the future for possible losses from the suspension. Evidence of the counterclaim must be submitted along with the motion for stay. Suspension of the execution of a judicial act within the meaning of Part 4 of Art. 283 of the Arbitration Procedure Code of the Russian Federation is terminated upon any completion of the cassation review, including upon the return of the cassation appeal and the termination of proceedings on it. The cassation court, depending on the circumstances of the case, has the right to establish a different period for suspending the execution of the appealed judicial act and indicate this period in the ruling.

Termination of cassation proceedings

If there is a reason specified in Part 1 of Art. 282 of the Arbitration Procedure Code of the Russian Federation (refusal of a cassation appeal), proceedings in the cassation instance on a complaint accepted for consideration are subject to unconditional termination, unless this contradicts the law and does not entail a significant violation of the rights of other persons participating in the case. If there are no obstacles to accepting the refusal of the cassation appeal specified in Art. 49 of the Arbitration Procedure Code of the Russian Federation, the arguments of the cassation appeal cannot be considered on the merits, the refusal of the complaint is not accepted only when it is contrary to the law or violates the rights of other persons, but not the applicant himself.

The legal consequence of terminating the proceedings on a cassation appeal if the applicant refuses the complaint is the prohibition of the same person re-applying to the cassation court on the same grounds on which the initial complaint was filed. Therefore, a repeated complaint cannot be accepted if it does not contain other arguments about the illegality of the act being appealed compared to the arguments of the original one. Such a complaint can be returned under clause 1, part 1, art. 281 of the Arbitration Procedure Code of the Russian Federation due to the fact that the applicant lost the right to appeal this judicial act on the grounds he had previously stated.

Trial in the cassation court

Consideration of cases in the court of cassation in accordance with Art. 284 of the Arbitration Procedure Code of the Russian Federation is carried out according to the rules established for the court of first instance, taking into account the features of cassation proceedings that limit the possibility of applying the rules of legal proceedings established for the court of first instance (Section II of the Arbitration Procedure Code of the Russian Federation).

In cassation proceedings, rules established only for the first instance, or rules the application of which is limited by the norms of Chapter. 35 of the Arbitration Procedure Code of the Russian Federation, for example:

Participation of arbitration assessors;

Agreement on changing contractual jurisdiction;

Involvement of another defendant and replacement of an improper defendant;

Change in the basis or subject of the claim, increase or decrease claims;

Involvement of third parties in the case;

Filing a counterclaim;

Keeping minutes of the court hearing.

The period for consideration of a cassation appeal by the arbitration court of the cassation instance should not exceed a month from the date of receipt of the cassation appeal along with the case by the arbitration court of the cassation instance, including the period for preparing the case for trial and the adoption of a judicial act.

The arbitration court of cassation considers the case in a court session by a collegial composition of judges according to the rules for considering the case by the arbitration court of the first instance, with the exception of the provisions established only for the consideration of the case in the arbitration court of the first instance.

Review of cassation court rulings on the return of cassation appeals is carried out without notifying the parties. Complaints against rulings made by a judge of the cassation instance alone are considered by the court of cassation instance in a collegial composition. Complaints against rulings made by a cassation court collectively (for example, a ruling to terminate proceedings on a cassation appeal - Part 4 of Article 282 of the Arbitration Procedure Code of the Russian Federation) are considered by the same court collegially, but in a different judicial composition (i.e. by judges who did not participate in the adoption of the appealed determination). Consideration of complaints in accordance with Part 2 of Art. 291 of the Arbitration Procedure Code of the Russian Federation must be carried out with notification of the parties. Based on the results of the cassation consideration of the complaint, a judicial act is adopted, called a ruling, which is not appealed, but can be reviewed in a supervisory manner or due to newly discovered circumstances.

18.6. Limits of consideration of the case in the cassation instance

The limits of cassation review in the arbitration process as a legislatively enshrined institution limit the content of verification activities, substantive and functional powers, and the essence of the decision of the arbitration court of cassation adopted as a result of the review. Article 286 of the Arbitration Procedure Code of the Russian Federation contains a general definition of the limits of cassation review, and in more detail the essence of this procedural institution is determined by the content of other norms of the Arbitration Procedure Code of the Russian Federation. The establishment of the limits of judicial control in the cassation instance is mainly due to the special procedural task of cassation (verification of the legality of the appealed acts) and the dispositive beginning of legal proceedings in the arbitration process, which assumes the dependence of judicial control on the procedural actions of the applicant. According to the general rule, on the one hand, cassation control is limited to checking legality, i.e. the correct application of the norms of substantive and norms of procedural law by lower courts when they adopted the appealed act. On the other hand, verification of the legality of the appealed act is carried out within the limits of the arguments of the cassation appeal and objections to the complaint submitted to the cassation court by other participants in the process.

The general task of legal proceedings in arbitration courts, enshrined in Art. 2 of the Arbitration Procedure Code of the Russian Federation as the protection of violated rights and legitimate interests of participants in economic relations, is also mandatory for the cassation court. However, the cassation court must, as a rule, carry out such protection within the limits to which it considers necessary applicant cassation appeal, which means that the arbitration court of the cassation instance should not check the correctness of the settlement of the controversial material legal relationship as a whole; the court’s efforts are directed primarily at eliminating those violations of the rights and legitimate interests of the applicant, which the applicant refers to in the cassation appeal. As stated in Part 1 of Art. 286 of the Arbitration Procedure Code of the Russian Federation, the cassation court also considers the objections of other persons participating in the case to the arguments of the cassation appeal. Thus, the cassation court should not consider the objections of other participants in the process if these objections are not relevant to the arguments of the cassation appeal and consist in challenging the legality of the judicial act in part not appealed by the applicant. To expand the scope of cassation review, other persons participating in the case must also file a cassation appeal.

The cassation court is not given the right, on its own initiative, to verify the legality of the appealed act in the remaining part. The exception is the rule of Part 2 of Art. 286 of the Arbitration Procedure Code of the Russian Federation, obliging the cassation court to go beyond the arguments of the cassation appeal when checking the correct application of the rules of procedural law, the violation of which, according to Part 4 of Art. 288 is an unconditional basis for canceling the appealed judicial act.

Part 3 of Article 286 of the Arbitration Procedure Code of the Russian Federation reflects a specific manifestation of the relationship between legality and validity during the cassation review of the appealed act. Thus, the cassation court does not have the right to independently establish the essential circumstances of the case, since this is the prerogative of the court of first and appellate instances, which are empowered to consider the case on its merits.

The arguments of the cassation appeal according to clause 4, part 2, art. 277 of the Arbitration Procedure Code of the Russian Federation should also be set out taking into account the relationship between the legality and validity of judicial acts. Therefore, the applicant must not only refer to the incorrect establishment of the essential circumstances, but also point out those violations of the law and the specific rights of the applicant, which, in his opinion, were committed due to the incorrect establishment of the essential circumstances of the case. The cassation court, based on the arguments of the complaint, verifies the correctness and completeness of the establishment of the essential circumstances of the case and the assessment of the evidence presented, the correctness of the conclusions of the lower court about the legal significance of the established circumstances.

Related to the limits of cassation review is the issue of submitting additional evidence to the cassation court. The Code of the Russian Federation does not contain a direct prohibition on providing additional evidence to the cassation court that was not presented when considering the dispute on the merits, but by virtue of Part 2 of Art. 268 of the Arbitration Procedure Code of the Russian Federation, the possibility of accepting additional evidence presented after the decision was made by the court of first instance depends on judicial discretion. Since the cassation court is given the right to check whether the conclusions of the lower court on the application of the rules of law correspond to the established circumstances of the case and the collected evidence, this presupposes an assessment by the cassation court of evidence related to the essential circumstances of the case, which does not exclude the possibility, at the discretion of the court, to examine additionally presented proof.

However, the result of assessing the totality of evidence available in the case and additional evidence cannot be the establishment of new circumstances of the case by the court of cassation (clause 3, part 1, part 2, article 287 of the Arbitration Procedure Code of the Russian Federation). The legal consequences of such an assessment of the evidence consist in sending the case for a new trial if the conclusions contained in the appealed judicial act do not correspond to the evidence examined by the cassation court. It is unacceptable for the cassation court to adopt, after canceling the appealed act, a new ruling on the merits of the dispute based on an assessment of the evidence examined during the cassation review.

Full text of Art. 284 of the Arbitration Procedure Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 284 of the Arbitration Procedure Code of the Russian Federation.

1. The arbitration court of cassation considers the case in a court session by a collegial composition of judges according to the rules for considering a case by an arbitration court of first instance, provided for by this Code, with the features established in this chapter, except for the cases provided for in part 1.1 of this article.

1.1. The court for intellectual rights, as an arbitration court of cassation, considers the case considered by it as a court of first instance, in a court session by the presidium of this court according to the rules for considering a case by an arbitration court of first instance, provided for by this Code, with the features established in this chapter.

2. The rules established by this Code only for the consideration of a case in the arbitration court of the first instance do not apply when considering the case in the arbitration court of the cassation instance, unless otherwise provided in this chapter.

3. Failure to appear at the court hearing of the arbitration court of the cassation instance of the person who filed the cassation appeal and other persons participating in the case cannot serve as an obstacle to the consideration of the case in their absence, if they were duly notified of the time and place of the trial.

Commentary on Article 284 of the Arbitration Procedure Code of the Russian Federation

1. In the cassation instance, the contents contained in general provisions The Arbitration Procedure Code of the Russian Federation rules on the suspension of proceedings in the case (Articles 143-147 of the Arbitration Procedure Code of the Russian Federation). The arbitration court of cassation suspends the proceedings in the cases established in the Arbitration Procedure Code of the Russian Federation, as well as in other cases provided for by federal laws (Part 2 of Article 143 of the Arbitration Procedure Code of the Russian Federation).

________________

2. If an application for revision of a judicial act due to new or newly discovered circumstances is filed with the arbitration court of the first, appellate or cassation instances after the case for the revision of the same judicial act has been accepted for proceedings and is in the cassation court in connection with the consideration of the cassation appeal , the arbitration court, to which an application for review of a judicial act was filed due to new or newly discovered circumstances, suspends the proceedings on this application in relation to clause 1 of part 1 of Art. 143 of the Arbitration Procedure Code of the Russian Federation before the adoption of a judicial act based on the results of consideration of the cassation appeal.

________________
See: On the application of the provisions of the Arbitration Procedural Code of the Russian Federation when revising judicial acts based on new or newly discovered circumstances: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2011 N 52 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2011. N 9. - M., 2011.

3. The cassation court does not apply the rules on submitting disputes to arbitration (Part 6, Article 4 of the Arbitration Procedure Code of the Russian Federation), on changing the grounds or subject of the claim, increasing the amount of claims (Article 49 of the Arbitration Procedure Code of the Russian Federation), on the entry of third parties into the case persons making independent claims on the subject of the dispute (Article 50 of the Arbitration Procedure Code of the Russian Federation), on the entry into the case (involvement in participation in the case) of third parties who do not make independent claims on the subject of the dispute (Article 51 of the Arbitration Procedure Code of the Russian Federation), on the connection and separation of several claims (Article 130 of the Arbitration Procedure Code of the Russian Federation), on filing a counterclaim (Article 132 of the Arbitration Procedure Code of the Russian Federation), on keeping minutes of the court hearing (Article 155 of the Arbitration Procedure Code of the Russian Federation).

________________
By analogy with the interpretation of previously existing arbitration procedural rules. See: On the application of the arbitration procedural code of the Russian Federation when considering cases in the arbitration court of cassation: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated September 24, 1999 N 13 // Economics and Life. - 1999. N 43.

4. In cases considered by the Court for Intellectual Rights as a court of first instance, consideration of cassation complaints in the manner of cassation proceedings is also carried out by the Court for Intellectual Rights (Part 3 of Article 274 of the Arbitration Procedure Code of the Russian Federation). Moreover, the peculiarity of such consideration in comparison with general rules consideration of the case by the court of cassation is that the corresponding review is carried out not by three or another odd number of judges (Part 4 of Article 17 of the Arbitration Procedure Code of the Russian Federation), but by the Presidium of the Court for Intellectual Rights (Part 1.1 of Article 284 of the Arbitration Procedure Code of the Russian Federation), carrying out consideration of cassation appeals taking into account the provisions of Art. 43.7 of the Federal Constitutional Law “On Arbitration Courts in the Russian Federation”, as well as the Rules of Arbitration Courts of the Russian Federation.

5. Determinations adopted by the Presidium of the Intellectual Rights Court may be revised in the manner of supervision according to the rules of Chapter 36 of the Arbitration Procedure Code of the Russian Federation.

________________
See: On some issues that arose in connection with the creation of the Court for Intellectual Rights in the system of arbitration courts: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 2012 N 60 // Journal of the Court for Intellectual Rights. - 2013. October.

6. For proper notification, see the contents and commentary of Art. 123 Arbitration Procedure Code of the Russian Federation.

7. See also commentary to Art. 11, 49, 135, 141, 152, 163, 274, 279 Arbitration Procedure Code of the Russian Federation.

Consultations and comments from lawyers on Article 284 of the Arbitration Procedure Code of the Russian Federation

If you still have questions regarding Article 284 of the Arbitration Procedure Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received between 21:00 and 9:00 will be processed the next day.