Time limit for compliance with the decision of the arbitration court of appeal. Section vi. proceedings to review judicial acts of arbitration courts. Resolution of the arbitration court of appeal
Section VI. PROCEEDINGS FOR REVIEW OF JUDICIAL ACTS OF ARBITRATION COURTS
Chapter 34. PROCEEDINGS IN THE ARBITRATION COURT OF APPEALS
Article 271. Resolution of the arbitration court of appeal
1. Based on the results of consideration appeal The arbitration court of appeal adopts a judicial act, called a resolution, which is signed by the judges who considered the case.
2. In the resolution arbitration court The appellate authority must indicate:
1) the name of the arbitration court of appeal, the composition of the court that adopted the decision; the name of the person who kept the minutes of the court session;
2) case number, date and place of adoption of the decision;
3) the name of the person who filed the appeal and his procedural position;
4) names of persons participating in the case;
5) the subject of the dispute;
6) the names of the persons present at the court hearing, indicating their powers;
7) the date of adoption of the appealed decision by the arbitration court of first instance and the names of the judges who adopted it;
8) summary content decision taken;
9) the grounds on which the appeal claims to verify the legality and validity of the decision;
10) the arguments set out in the response to the appeal;
11) explanations of persons participating in the case and present at the court hearing;
12) the circumstances of the case established by the arbitration court of appeal; evidence on which the court's conclusions about these circumstances are based; laws and other regulations legal acts which the court was guided by when making the decision; the reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;
13) the reasons why the appellate court did not agree with the conclusions of the first instance court, if its decision was canceled in whole or in part;
14) conclusions on the results of consideration of the appeal.
3. The ruling of the arbitration court of appeal indicates the distribution between the parties legal expenses, including legal costs incurred in connection with filing an appeal.
4. Copies of the decision of the arbitration court of appeal are sent to the persons participating in the case within five days from the date of adoption of the decision.
5. The decision of the arbitration court of appeal comes into force from the date of its adoption.
6. The decision of the arbitration court of appeal may be appealed to the arbitration court cassation instance, unless otherwise provided by this Code.
(as amended by Federal Law dated July 27, 2010 N 228-FZ)
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3. Powers of the arbitration court of appeal. Grounds for changing or canceling a decision of the court of first instance. Resolution of the arbitration court of appeal
Based on the results of consideration of the appeal, the arbitration court of appeal has the right (Article 269 of the APC):
1) leave the decision of the arbitration court of first instance unchanged, and the appeal without satisfaction;
2) cancel or change the decision of the court of first instance in whole or in part and adopt a new judicial act in the case;
3) cancel the decision in whole or in part and terminate the proceedings or leave the statement of claim without consideration in whole or in part.
The grounds for changing or canceling the decision of the arbitration court of first instance are:
1) incomplete clarification of circumstances relevant to the case;
2) failure to prove circumstances relevant to the case that the court considered established;
3) discrepancy between the conclusions set out in the decision and the circumstances of the case;
4) violation or incorrect application of substantive law or procedural law.
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 the decision of the arbitration court of first instance, if this violation led or could lead to the adoption of an incorrect decision.
The grounds for canceling the decision of the arbitration court of first instance in any case are (Article 270 of the APC):
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 who were not properly notified of the time and place of the court hearing;
3) violation of language rules during the consideration of the case;
4) the court makes a decision on the rights and obligations of persons not involved in the case;
5) failure to sign the decision by the judge or one of the judges, if the case was considered by a collegial composition of judges, or signing of the decision by judges other than those indicated in the decision;
6) absence of the minutes of the court session in the case or its signing by the wrong persons;
7) violation of the rule on the secrecy of the meeting of judges when making a decision.
Based on the results of consideration of the appeal, the arbitration court of appeal adopts a judicial act, called a resolution, which is signed by the judges who considered the case.
The ruling of the arbitration court of appeal must indicate:
1) the name of the arbitration court of appeal, the composition of the court that adopted the decision; the name of the person who kept the minutes of the court session;
2) case number, date and place of adoption of the decision;
3) the name of the person who filed the appeal and his procedural position;
4) names of persons participating in the case;
5) the subject of the dispute;
6) the names of the persons present at the court hearing, indicating their powers;
7) the date of adoption of the appealed decision by the arbitration court of first instance and the names of the judges who adopted it;
8) a summary of the content of the decision made;
9) the grounds on which the appeal claims to verify the legality and validity of the decision;
10) the arguments set out in the response to the appeal;
11) explanations of persons participating in the case and present at the court hearing;
12) the circumstances of the case established by the arbitration court of appeal; evidence on which the court's conclusions about these circumstances are based; laws and other regulatory legal acts that the court was guided by when making the decision; the reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;
13) the reasons why the appellate court did not agree with the conclusions of the first instance court, if its decision was canceled in whole or in part;
14) conclusions on the results of consideration of the appeal.
The ruling of the arbitration court of appeal indicates the distribution of legal costs between the parties, including legal costs incurred in connection with filing an appeal.
Copies of the decision of the arbitration court of appeal are sent to the persons participating in the case within five days from the date of adoption of the decision.
The decision of the arbitration court of appeal comes into force from the date of its adoption.
The decision of the arbitration court of the appellate instance may be appealed to the arbitration court of the cassation instance.
Appeals against decisions of the arbitration court of first instance are filed with the arbitration court of appeal and are considered by it according to the rules provided for the filing and consideration of appeals against decisions of the arbitration court of first instance, with the features provided for by the Arbitration Procedure Code of the Russian Federation.
Appeals against the rulings of the arbitration court of first instance on return statement of claim and other rulings that impede the further progress of the case are considered by the arbitration court of appeal within a period not exceeding ten days from the date of receipt of such a complaint in court.
Based on the results of consideration of a complaint against a ruling of the arbitration court of first instance, the arbitration court has the right to:
1) leave the ruling unchanged and the complaint unsatisfied;
2) cancel the ruling of the arbitration court of first instance and send the issue for a new consideration to the arbitration court of first instance;
3) cancel the determination in whole or in part and resolve the issue on the merits.
The decision of the arbitration court of appeal is a judicial act that is adopted based on the results of the consideration of the case.
Like any judicial act of an arbitration court, it must be legal, justified and motivated (see Art.
Part 3 art. 15 Arbitration Procedure Code of the Russian Federation).
The Arbitration Procedure Code of the Russian Federation establishes the range of issues that must be contained in the resolution (Article 271).
Introductory part:
Name of the arbitration court of appeal;
The composition of the appeal board that considered the case and adopted the decision;
The name of the person who kept the minutes of the court session;
Case number, date and place of adoption of the decision;
The name of the person who filed the appeal and his procedural position (plaintiff, defendant, etc.);
Names of persons participating in the case;
Subject of dispute;
The names of the persons present at the court hearing of the appellate court, indicating their powers;
Date of adoption of the appealed decision and the names of the judges who adopted it.
Descriptive part:
A summary of the contents of the decision;
The grounds on which the complaint requests verification of the legality and validity of the decision;
Arguments (objections) set out in the response to the complaint;
Explanations of persons participating in the case and present at the court hearing.
Motivational part:
The circumstances of the case established by the arbitration court of appeal;
Evidence on which the court’s conclusions about the established circumstances are based;
Laws and other regulatory legal acts that the court was guided by when making the decision;
The reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;
The reasons why the court did not agree with the conclusions of the trial court when canceling the decision (in whole or in part).
The operative part contains conclusions about the results of the consideration of the appeal. It also indicates the distribution of legal costs between the parties.
The resolution is signed by the judges who considered the case.
The resolution comes into force from the date of its adoption, but can be appealed to the cassation authority.
Copies of the resolution are sent within 5 days to the persons participating in the case.
More on topic 2. Resolution of the arbitration court of appeal:
- When can an arbitration court decision be changed or overturned by an appellate court?
- What should be indicated in the ruling of the cassation court?
- Powers of the Presidium of the Supreme Arbitration Court of the Russian Federation to review cases by way of supervision
3.2 Resolution of the arbitration court of appeal
Based on the results of the appeal, the arbitration court of appeal adopts a judicial act, called a resolution, which is signed by the judges who considered the case.
Like any judicial act of an arbitration court, it must be legal, justified and motivated (Part 3 of Article 15 of the Arbitration Procedure Code of the Russian Federation).
The Code establishes the range of issues that must be contained in the resolution (Article 271 of the Arbitration Procedure Code of the Russian Federation). The court ruling is divided into introductory, descriptive, motivational and operative parts, each of which is characterized by individual certainty.
The introductory part of the decision of the arbitration court of appeal includes:
Indication of the name of the court reviewing the contested decision;
The composition of the appeal board that considered the case and adopted the decision;
The name of the person who kept the minutes of the court session;
Case number, date and place of adoption of the decision;
The name of the person who filed the appeal and his procedural position (plaintiff, defendant, etc.);
Names of persons participating in the case;
Subject of dispute;
The names of the persons present at the court hearing of the appellate court, indicating their powers;
Date of adoption of the appealed decision and the names of the judges who adopted it.
IN descriptive part the following is included:
A summary of the contents of the decision;
The grounds on which the complaint requests verification of the legality and validity of the decision;
Arguments (objections) set out in the response to the complaint;
Explanations of persons participating in the case and present at the court hearing.
The motivational part includes:
The circumstances of the case established by the arbitration court of appeal;
Evidence on which the court’s conclusions about the established circumstances are based;
Laws and other regulatory legal acts that the court was guided by when making the decision;
The reasons why the court rejected certain evidence and did not apply laws and other regulatory legal acts referred to by the persons participating in the case;
When canceling a decision (in whole or in part), the reasons why the court did not agree with the conclusions of the trial court.
The operative part contains conclusions about the results of the consideration of the appeal. It also indicates the distribution of legal costs between the parties.
The resolution is signed by the judges who considered the case. The resolution comes into force from the date of its adoption, but can be appealed to the cassation authority.
Copies of the decision of the arbitration court of appeal are sent to the persons participating in the case within five days from the date of adoption of the decision.
It should be borne in mind that the date of adoption of the decision of the appellate court is considered to be the date of its production in full. In this case, the production of a resolution in full in relation to Article 176 of the Arbitration Procedure Code of the Russian Federation may be postponed for a period not exceeding five days from the date of announcement of the operative part.
If clerical errors, typos and arithmetic errors were made in the decision of the appellate instance without changing its content, the court, in the manner prescribed by Article 179 of the Arbitration Procedure Code of the Russian Federation, has the right, on its own initiative or at the request of the persons specified in Part 3 of Article 179 of the Code, to correct the errors made in the decision errors Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N 36 (as amended on November 10, 2011) “On the application of the Arbitration Procedural Code Russian Federation when considering cases in the arbitration court of appeal."
The decision of the appellate court comes into force from the moment of its adoption, but can be appealed. Like the decision of the court of first instance, the decision of the appellate instance of the arbitration court is sent to the persons participating in the case by registered mail with acknowledgment of receipt or handed over to them against signature within five days. The decision of the court of appeal may be appealed to the cassation instance within a period not exceeding two months from the date the court decision entered into legal force.
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The arbitration court, having considered the case in the appellate instance, has the right to: leave the court decision unchanged and the complaint unsatisfied; cancel the decision in whole or in part and make a new decision; change the decision; cancel the decision in whole or in part and terminate the proceedings or leave the claim without consideration in whole or in part.
The peculiarity of the position of the appellate authority, which carries out a review of the decision in full, determines that its powers do not include the right to cancel decisions in whole or in part and to transfer cases for a new trial to the court of first instance. The decision remains unchanged, and the complaint is not satisfied , if the arguments set out in it were not confirmed at the hearing of the appellate court or if it is established that the rules of substantive and procedural law were applied correctly by the court of first instance, and the circumstances of the case were examined by it fully and comprehensively. The decision is canceled or changed in the event that the appellate instance establishes that the decision of the arbitration court of first instance does not correspond to the actual circumstances of the case or the law was applied incorrectly. The decision may be canceled and the claim left without consideration , if at a meeting of the arbitration court of appeal the circumstances listed in Art. 87 Arbitration Procedure Code of the Russian Federation.
Based on the results of the consideration of the case in the appellate instance the decision may be canceled in whole or in part, and the proceedings on the case terminated , if the court reveals the circumstances specified in Art. 85 Arbitration Procedure Code of the Russian Federation. Based on the results of consideration of the appeal, a resolution is adopted, which is signed by all judges.
The resolution must indicate:
- 1) the name of the arbitration court that adopted the resolution, the case number and date of adoption of the resolution, the composition of the court that adopted the resolution, the names of the persons present at the hearing with an indication of their powers, the date of the decision in the first instance and the names of the judges who adopted it;
- 2) the name of the persons participating in the case, the name of the person who filed the appeal;
- 3) a brief summary of the essence of the decision made;
- 4) the grounds on which the question of verifying the legality and validity of the decision was raised;
- 5) the arguments set out in the response to the appeal;
- 6) explanations of persons present at the meeting;
- 7) the circumstances of the case established by the arbitration court, the evidence on which the arbitration court’s conclusions about these circumstances are based, and the arguments on which the arbitration court rejects certain evidence and does not apply laws and other normative legal acts referred to by the persons participating in the case case, as well as laws and other regulatory legal acts that guided the court when making the decision;
- 8) when canceling or changing the decision of the court of first instance - the reasons why the court of appeal did not agree with the conclusions of the court of first instance;
- 9) conclusions based on the results of consideration of the appeal.
The resolution specifies the distribution of legal costs between the parties. The resolution comes into force from the moment of its adoption. The resolution is sent to the persons participating in the case by registered mail with acknowledgment of receipt or handed over to them against signature within five days from the date of adoption. The decision can be appealed.
