Explanations laid down in the decree of the Plenum of the Supreme court of Russia, prescribing rules for the consideration of cases in arbitration court of cassation. Yes, this document addresses only the arbitration courts. However, talking about the universal principle, so that the experts do not exclude that in the nearest future the Supreme court will give similar explanations for civil trials, that is, disputes of ordinary citizens.
the resolution is given a clear indication to the courts of cassation to verify the findings of the first instance and appeal for compliance with the legal positions of the Supreme court of Russia.
“This is a significant step forward, because despite the repeated explanations of the Russian Supreme court, arbitration courts do not always listen to him practice, and sometimes make decisions without taking into account the practice of the Supreme court,” – emphasizes the lawyer Vyacheslav guests receive.
the court of cassation is the third instance, its task is to detect errors in already in force decisions. Formally, the point is made, but if the point is unfair, cassation Plenipotentiary to remove it. Now entered into force decisions of the courts should be required to comply with the legal positions of the Supreme court of Russia, expressed in the decisions of the Plenum, the Presidium, as well as in related judicial practice of the Supreme court. If the Plenum is rather General explanations of how to interpret certain rules of law, that the decree of the Presidium are submitted on specific cases. The related judicial practice in fact – collections of live examples.
in addition, how to pay attention to the lawyer Vyacheslav guests receive, in the order the answers to the questions about where is the line between questions of law and questions of fact. “As you know, arbitration court of cassation instance has not the right to reinstall the facts of the case, can not appreciate the evidence in dispute. However, it is not excluded on the basis of available evidence to come to a different conclusion about legal qualification of legal relationship that allows in this case to speak of violation of substantive law, and on this basis to refer the case for a new trial, he says. – However, arbitration cassation court is allowed, for non-compliance contained in the judicial acts of the findings of the trial or the appellate court about the circumstances of the case and the evidence on which to base such a conclusion, or if you disagree with the reasons for which the courts rejected those or other proofs, to cancel the judicial acts and to direct business on new consideration. A new trial in this case necessarily, as revealed in such situations of violations associated with application of norms of procedural law on the study and evaluation of evidence at the de��u”.
Directing business on new consideration, the court of cassation in resolution must specify the actions that must be performed by persons participating in the case, and the court of first instance or appellate court. “The directions of the court of cassation, for example, the interpretation of the law, about what the norms of the legislation the court should be guided by should be specific and enforceable, based on a comprehensive assessment of the arguments contained in the appeal and objections concerning the complaint, the findings of the court of first or appellate instance on the application of the rule of law established by them in the matter of the actual circumstances and available evidence, – said Vyacheslav guests receive. – In other words, the revocation may specify the lower courts to the need to consider the issues (however, without prejudice to them), in particular, the replacement of the persons participating in business, about changing the grounds or subject of action, on the examination of the case, on the taking of evidence, including in cases where the relevant written petitions were admitted by the courts to the case, but left without consideration, and the arguments about it are not taken into account”.
According to him, similar approaches can and should be fixed in relation to the cassation courts of General jurisdiction, as in cases considered by the CPC, and subject to the administrative procedure Code. “Appellate practice arbitration cassation courts were established almost 30 years – said the lawyer. – The rules of the code of civil procedure and CASS on the “new appeal” largely borrowed from the provisions of APC RF the arbitration of the cassation proceedings. Therefore, it is reasonable to spread the positive experience of arbitration appeal courts and the appeal courts of General jurisdiction”.
In turn, the Chairman of the Association of lawyers of Russia Vladimir Gruzdev noted that the Plenum of the Supreme court of Russia prepared explanations that have long been expected. “Because the quality of work of arbitration courts depends on the stability of legal relations in the economic turnover, he said. One of the accepted innovations – expansion of the range of persons who may file complaints against decisions of arbitration courts”.