Art. 327 Code of Civil Procedure of the Russian Federation describes the process of reviewing cases in the second instance, on appeal. The procedure has several features, but in many ways resembles what is happening in the court of first instance. The application of the rules is simplified by the clarifications of the Supreme Court, but they are partially outdated.
Normative regulation
The entire review procedure is governed by the rules of the Civil Procedure Code. Clarification of the Supreme Court issued. In connection with the introduction of new courts of cassation, some, for the most part, point changes are planned and in the course of the appeal review. Art. 327 Code of Civil Procedure of the Russian Federation in the new statement is necessary because of the conduct of additional institutions that review decisions and definitions of courts at the subject level, which they take in the role of first instance.
Procedure value
Based on the provisions of Article 327 Code of Civil Procedure of the Russian Federation, the task of the appellate court is to verify the correctness of the establishment of facts and compliance with the norms of the process, as well as the application of substantive law.
The law gives the right to review the case in the interests of justice in full, for which the author in the complaint refers to disagreement with the decision in full. Otherwise, only the existing arguments will be checked, without going beyond their scope, having partially reviewed the case.
The law does not prohibit the court on its own initiative to go beyond the scope of the complaint and review the case in full or pay attention to aspects not affected by the complaint. There are cases of review for completely different reasons, not stated by the appellant.
Today, cancellation or at least a change in a judicial act in reality is possible only in the second instance. In a cassation, a review of the fact does not work. Therefore, it is worth reflecting in the complaint all material violations that have taken place.
What is the focus of attention?
Together with this Art. 327.1 Code of Civil Procedure obliges the board to always verify compliance with the first instance requirements:
- on the legality of the composition of the court (a judge cannot impartially consider the case or unreasonably refuse to challenge);
- about the language of production;
- properly informing the participants of the case about the meeting;
- on attracting persons whose rights were affected by a judicial act, but they were not brought to consideration (summons were not sent, the opportunity to express an opinion or to object was not given);
- on the signing of a court decision by an authorized judge;
- about the jam protocol;
- about the secrecy of the deliberation room.
Violation of at least one of the above paragraphs requires the annulment of a previous decision. I must say, violations from the presented list are rare.
Cessation of production
Some violations initially prevented the consideration of the dispute in court, but for some reason they were not paid attention to. This situation obliges the appellate court to cancel the judicial act adopted in the case and terminate the proceedings. For example, if the plaintiff did not comply with the pre-trial procedure for resolving the dispute. The law also provides for other grounds in this regard.
Question of evidence
Judges review the case based on evidence gathered by the first instance. New materials are taken into account if the party did not have an objective opportunity to submit them to the court earlier.
They are also accepted if the trial court illegally refused to introduce them. Such requests for evidence of this kind are often granted.
New claims are not taken into account when considering, if previously they were not refused consideration on the merits. For example, the plaintiff filed an application to clarify and supplement the requirements, and the judge refused to accept it.
He came to a similar conclusion, interpreting Art. 327 Code of Civil Procedure of the Russian Federation as amended and the provisions of Chapter 39, interconnected with it, Supreme Court.
What the second instance court doesn’t do
In the commentary to Art. 327 Code of Civil Procedure of the Russian Federation, it is noted that the following provisions are not applicable when considering a case at the appeal stage:
- on consolidation or separation of a claim or claims of a claim;
- on changing the subject or basis of the claim;
- counterclaim;
- on replacing the defendant (if he, in the court's opinion, is inappropriate);
- on attracting third parties to participate in the review.
However, the prohibition shall be valid until the decision of the first instance is canceled and the consideration is transferred to the procedure provided for for the first instance. After all, the second instance has no right, having canceled the judicial act, adopted on the merits, to send the case to a new trial to a magistrate or district judge.
Preparation for the process
The civil process in Russia is designed in such a way that the first instance court conducts a review of the readiness of the complaint. If the district or justice of the peace, in the opinion of a colleague from the second instance, did not perform the audit properly and did not take measures to eliminate the violations, the materials are sent back to eliminate the deficiencies. Therefore, Art. 327 Code of Civil Procedure of the Russian Federation as the first action of the judge in the case indicates the challenge of the parties.
Submission of Agenda
Participants in the process (plaintiff, defendant, third parties) are sent by mail summons with a message of the place and time of the hearing. Usually, the date, time of day, and cabinet or hall number are mentioned.
A message is considered accepted if there is a notice of acceptance of the letter in the case. Messages to the phone are used if the participant wrote a corresponding statement earlier, and there are means of fixing their sending and receiving. The rules apply equally to ordinary citizens and organizations, in particular, the prosecutor's office.
If the judge begins the examination without having information about the receipt of the summons by the interested person, the judicial act in a higher instance is subject to automatic cancellation. All of these rules are based on the application of Art. 327 Code of Civil Procedure of the Russian Federation on the rules of first instance.
Number of judges
The decisions of the justice of the peace are reviewed by his colleague from the district court; in the courts of the subjects colleges of 3 people operate. The decision is made by a majority vote. If someone does not agree, he has the right to express a dissenting opinion.
Presence in court
The law obliges participants to come to the meeting, otherwise all decisions in the case will be taken without their participation. If the parties or another person participating in the review, for example, an expert, is not able to get to the place of consideration, they are entitled to use the right to a video conference. Communication is organized with the court to which they are closest. It is advisable to inform in advance about the need to hold a meeting in this mode. The innovation is contained in Part 1 of Art. 327 Code of Civil Procedure of the Russian Federation.
Having established that the subpoena has been delivered, the judges prefer to adjourn the meeting. So they avoid accusations of bias. As a rule, having missed the meeting a second time, the party cannot rely on the postponement of the meeting again.
If it is not possible to ensure presence, including through conference calls, it is necessary to report the reasons and the time required to eliminate them.
Composition of the court and clarification of rights
The judge-rapporteur briefly reports on whose complaint the meeting is being held, reports on the name of F. I. O. of the parties and their representatives. The composition of the board is announced if there are several judges. Mentioned is the secretary responsible for maintaining the protocol.
The fact of the appearance of the participants in the case at the meeting is verified. If someone does not appear, it is checked whether the meeting is properly reported.
An important step in the process is the clarification of rights and obligations. The members of the board make sure that what is said is clear to the parties and their representatives. In particular, the right to challenge a judge or clerk. About the above directly in Part 2 of Art. 327 Code of Civil Procedure of the Russian Federation is not mentioned, but we must not forget about the general rules of the proceedings.
Process Records
All actions of the participants in the proceedings and the court are recorded in the minutes. The law states that it is conducted according to the same rules as in a magistrate or district court.
The current version of article 327 of the Code of Civil Procedure of the Russian Federation has not changed in this part and refers to the provisions on the recording of the process in the court of first instance.
Consideration of the complaint
Formally, the case is signed by one of the board members, it is not necessary that he turns out to be a rapporteur.
Parties are invited to submit motions, in particular, to demand evidence, postpone the proceedings, etc.
If both parties seek a reversal of the decision, the word is first given to the plaintiff. The author of the complaint is given the right to state briefly the content of the arguments. Then the second side expresses its views on the stated arguments and sets out its own.
Judges discuss what they have heard among themselves, ask questions during the story or after the participants express their opinion. Not only the factual side is discussed, but also the legal assessment of the events.
If managed to achieve a review
A new decision is made if the previously handed down (both fully and partially) is canceled. In other cases, the court makes a determination. The consideration of the complaint ends with the cancellation of the decision and the transition to the consideration of the case from the very beginning quite rarely.
Judges come to the annulment of the decision in the deliberation room. Having left it, they report on the results of their discussion.
A new trial may last one meeting. It depends on what violations you need to eliminate. If there is a need to conduct a new examination, study it, demand evidence, call new witnesses, the consideration will be extended to several meetings.
The parties are given the opportunity to call witnesses, attach new documents, ask the court to order an examination if this has not been done before. The reasons why the process participant did not exercise their rights do not matter.
Debate of the parties
Concluding the proceedings, the court invites the parties to address the debate. They in fact last no more than a minute. The participants in the process briefly express their opinion aimed at supporting the complaint or, on the contrary, its rejection. After which the board retires to the deliberation room to make a decision.
Dates of proceedings
The provisions of Art. 327.2 Code of Civil Procedure of the Russian Federation unambiguous. The appellate court has 2 months to decide on the complaint. The term applies to district courts and courts at the subject level. In the Supreme Court, the time period for consideration of the case has been increased to 3 months.
The regulatory framework gives the right to introduce shortened terms for consideration in other cases, which is implemented, for example, in relation to proceedings on private complaints or violations of the electoral process.
Finally
Code of Civil Procedure in detail describes the procedure for reviewing judicial acts on appeal. It is mainly based on the same principles as the consideration of a dispute by a world or district court.
When the decision is canceled, the judges proceed to a new consideration. The trial is held anew, the parties are again given the right to declare evidence, call witnesses and order an examination.