What is a violation of procedural law? Violations of procedural law

Here we are dealing with incorrect legal conclusions.

A judicial act is a transition from the empirical to the rational, and only then to the law, because the facts established on the basis of evidence recognized as reliable are subject to rational processing using the known laws of logic, and only then are legal conclusions made.

Let's consider clauses 36-37 of PPVS No. 13.

P. 36. Para. 1: It should be borne in mind that if the court of appeal cancels, based on the results of consideration of the appeal, the presentation of the decision of the court of first instance on the grounds provided for in Part 1 of Art. 330 Code of Civil Procedure, in accordance with the provisions of Art. 328 of the Code of Civil Procedure, sending the case for a new trial to the court of first instance is not allowed. In this case, the appellate court itself makes a new decision on the case. Paragraph 2: when establishing violations of norms procedural law specified in Part 4 of Art. 330 Code of Civil Procedure, the court of appeal on the basis of Part 5 of Art. 330 of the Code of Civil Procedure proceeds to the consideration of the case according to the rules of proceedings in the court of first instance, without taking into account the features provided for in Chapter. 39 Code of Civil Procedure. Paragraph 3: when applying the provisions of clause 1, part 4, art. 330 Civil Procedure Court The appellate instance must take into account that the case is considered to have been considered by the court in an unlawful composition in the case where, for example, the case was considered by a person not vested with the powers of a judge; the judge was subject to challenge on the grounds provided for in paragraphs 1, 2, part 1 and part 2 of Art. 16 Civil Procedure Code; the judge repeatedly participated in the consideration of the case in violation of the provisions of Art. 17 Code of Civil Procedure.

P. 37. Para. 1: violation by the court of first instance of the rules of procedural law establishing the rules of jurisdiction is not a basis for the appellate court to apply clause 1, part 4 of Art. 330 Civil Procedure Code. Paragraph 2: in the presence of these violations, the court of appeal in accordance with Art. 47 of the Constitution of the Russian Federation and Part 2 of Art. 33 of the Code of Civil Procedure cancels the decision of the court of first instance on the grounds of Part 3 of Art. 330 of the Code of Civil Procedure and transfers the case to the court of first instance, to whose jurisdiction the law assigns its consideration. Paragraph 3: Thus, the case may be referred for consideration by jurisdiction to the court of first instance if a violation of the rules of jurisdiction is indicated in the appeal, presentation and the appellate court establishes that the person who filed the complaint or the prosecutor who brought the presentation filed a petition in the court of first instance about the lack of jurisdiction of the case by this court or that they did not have the opportunity to file such a petition in the court of first instance due to their failure to be notified of the time and place of the court hearing or non-involvement in the case; if, due to a violation of the rules of generic jurisdiction when considering cases related to state secrets, or the rules of exclusive jurisdiction for claims for rights to real estate, there was no opportunity to collect, examine and evaluate as relevant and admissible evidence information that respectively constitutes a state secret or is located at the location real estate, which could lead to a substantively incorrect court decision.

As we can see, the Plenum found an exception to the rule that a case cannot be transferred to the court of first instance. But an exception of this nature, which is not in the law at all, an exception that has no relation to Part 4 of Art. 330 Civil Procedure Code. In paragraph 36 we see that the illegal composition of the court does not give the right to transfer the case to the court of first instance, but violation of the rules of jurisdiction does give this right (paragraph 37). Paragraphs 36 and paragraph 37 are in a systemic contradiction, because violation of the rules of jurisdiction is a special case of an illegal composition of the court; The plenum flogged itself, because if this is an illegal composition of the court, let us always refer the case for a new trial. But it turned out that the composition of the court was illegal (a judge who did not have the right to consider the case), then we do not return the case, and if this is a violation of the rules of jurisdiction, then we return it, and this, of course, is contradictory and illogical.

Well, point 38: If in the first instance, in a preliminary court hearing, a statute of limitations was applied and the claim was immediately rejected without examining the factual circumstances, and then the appeal sees that there were no grounds for applying the statute of limitations, then the case should be referred for a new trial to the court of first instance.

Thus, the Plenum gave rise to 2 grounds for transferring the case for a new trial, which are not in the law, and at the same time also flogged itself from the point of view that violation of the rules of jurisdiction is a special case of an illegal composition of the court.

Part 2 art. 333 Civil Procedure Code(according to which a private complaint, a prosecutor’s submission against a ruling of the court of first instance, except for definitions on suspension of proceedings in a case, on termination of proceedings on a case, on leaving an application without consideration, are considered without notifying the persons participating in the case) has recently been checked for compliance with the Constitution, and Resolution No. 29-P of 2012 represents a compromise between the fact that what is written in the law, what is written in the Plenum and what should have been written in general. Transition to absentee consideration of private complaints. The question arose: without notice - this is in a court hearing, which is held openly and publicly, but without notice, or is it a transition to a written process, where there is no publicity and orality, and there is no hearing at all (for example, like a court order, which is issued without a judicial meetings). Practice read the article. 333 of the Code of Civil Procedure literally said: we are holding a meeting, we write on the website when and where the meeting is, but we are not sending out agendas. You can only grin. What is a court hearing without notice to the parties and why is such a meeting necessary? It has gotten to the point where the parties read on the website when and where this meeting will take place, they come and sit down as spectators, because without notice, i.e. - without participation. Without notification - that’s just without summons, but if they came, should they still let them in and listen? Or does it mean that even if they came, we still don’t listen to them, because... if without notice, then without them? And if without them at all, then why the meeting? The soul rushed to heaven, in St. Petersburg like this: they let us in and listen to us. In Moscow they only let us in as spectators, and they don’t listen to us. This is one part of the problem, the performance. The second part of the problem: the definition of the definition of discord, and Art. 333 of the Code of Civil Procedure speaks only of preemptive determinations (as exceptions in which a party must be summoned and heard), and in this list there is no definition on the issue of canceling a decision due to newly discovered circumstances, and it turned out that the cancellation of a decision due to newly discovered circumstances when it is appealed , proceeds without the participation of the participants in the process (they can come, but they will not listen to them, and subpoenas are not sent to them). This is precisely what caused complaints to the Constitutional Court. As a result, the Constitutional Court sat down between the chairs in order to preserve both the law and some sense in this, and said: it is necessary to give the opportunity, firstly, to file petitions stating that they want to participate in the court hearing, and if they file such a petition , then they need to be given the opportunity to participate in the court hearing, secondly, they need to be given the opportunity to exchange objections to the filed complaint, and if they came, then give them the opportunity to speak out. This is an example of how the Constitutional Court saved this internal contradiction of Art. 333 Code of Civil Procedure.

A private complaint against a court ruling is filed within 15 days (unlike a complaint against a court decision, which is filed in month period). Also, in PPVS No. 13 there is a special chapter regarding appealing determinations, there we will look at all these notices and pay attention to this.

This is the essence of the appeal. Let us note that an incomplete appeal and an appeal related to the arguments of the complaint (and this is the main issue of Article 327.1 of the Code of Civil Procedure) is an attribute of developed, full-fledged competition. And vice versa, a full appeal is an attribute of undeveloped, inferior competitiveness. Or, in another way it sounds like this: the higher authorities are what the state of the first instance is. If in the first instance there is full-fledged adversarialness, then higher authorities also become adversarial. If in the first instance the devil knows what (as it is now with us), then the appeal should be complete, with the opportunity to present new evidence without restrictions, with all the ensuing consequences. The history is that if we look at the literature of the last 20 years, then 50% of it is devoted to appeal/cassation/supervision reform, i.e. We want to reform “from above.” Apparently because the first instance is in a hopeless state and nothing can be done with it? It is important to note here that the second and third instances are the same as the first, they have as many possibilities as is required to adequately reflect the state of the first. Yes, of course, an incomplete appeal is better, but that is if everything is in order in the first instance, and if you don’t understand what’s going on, then a full appeal is needed. In general, the process is not reformed from above, it is reformed from below and higher authorities must be adequate to the state of the first instance.

The rules of substantive law are considered violated or incorrectly applied:

1) if the court did not apply the law to be applied;

2) if the court applied a law that was not subject to application;

3) if the court misinterpreted the law.

Commentary on Article 307

Violation or incorrect application of substantive law may

manifest themselves differently.

Failure to apply the applicable law occurs in cases where

when the court not only does not indicate in the decision the rule of law to be applied,

but also resolves the matter in contradiction with current legislation. If the court

did not indicate in the decision the norm of substantive law to be applied, but allowed

dispute in accordance with current law, cassation instance can contribute

appropriate changes to it without canceling the decision.

We can speak of non-application of the law subject to application if the court

applied a repealed law or regulations that contradict the law

or published in violation of current legislation.

2. The rules of substantive law are considered violated if the court applied

a law that is not subject to application (clause 2 of Article 307). Such a violation occurs

when the court, when resolving a case, incorrectly classifies the relationship between the parties

and applies the wrong norm that regulates the controversial relationship (for example, the norm

family, not civil law and etc.).

3. Incorrect interpretation of the law is permitted by the court in cases where

when the law to be applied is applied, but the content and meaning of it

are misunderstood, as a result of which the court makes an incorrect conclusion in its decision

on the rights and obligations of the parties. Such a violation may be committed in

in particular, with an expansive or restrictive interpretation.

Depending on the specific circumstances of the case, misinterpretation

rules of substantive law may serve as a basis for canceling or changing a decision

More on the topic Article 307. Violation or incorrect application of substantive law:

Knowingly false testimony, opinion of an expert, specialist or incorrect translation (Article 307 of the Criminal Code of the Russian Federation)

Violations of procedural law are divided into two groups:

Conditional;

Unconditional.

Conditional grounds– part 3 art. 330 of the Code of Civil Procedure of the Russian Federation, any violation of the norms of procedural law is grounds for canceling the decision, provided that it influenced the correctness of the decision made, i.e. any violation. Inadmissible according to the formal part 6 of Art. 330 of the Code of Civil Procedure of the Russian Federation - applies only to violation of substantive law.

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

6. A decision of the court of first instance that is essentially correct cannot be canceled for formal reasons alone.

Unconditional grounds– part 4 art. 330 of the Code of Civil Procedure of the Russian Federation - when a court decision is subject to cancellation in any case, regardless of whether it is correct or not on the merits, since significant fundamental violations have been committed, i.e. The basic principles of civil procedure are violated, which turn the process into nonsense. The list of these grounds is an exhaustive seven points, this also includes the grounds for termination of the proceedings and the grounds for stopping the application without consideration, i.e. An absolute violation of procedural law includes:

Article 330. Grounds for canceling or changing a court decision on appeal

4. The grounds for canceling the decision of the court of first instance in any case are:

1) consideration of the case by a court with 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 rules about the language in which judicial proceedings are conducted;

4) the court makes a decision on the rights and obligations of persons not involved in the case;

5) the court decision was not signed by the judge or any of the judges, or the court decision was signed by the wrong judge or judges who were part of the court that considered the case;

6) absence of the minutes of the court session in the case;

7) violation rules on the secrecy of the meeting of judges when making a decision.

Clause 4 art. 330 Code of Civil Procedure of the Russian Federation;

Termination;

Stopping without consideration (in the court of appeal - non-compliance with the claim procedure, the presence of an identical case in the proceedings), i.e. application of the grounds for leaving without consideration is rare.

Illegal composition of the court, lack of notification of the party about the time and place, making a decision regarding the rights of persons not involved in the process, lack of minutes of the court session, signing the decision by the wrong judge who made it - and there are reasons.

Related to the question of overturning a decision is the question of the powers of the appellate court:

In the Court of Appeal:

Leave the appeal judicial act the decision is unchanged, but appeal without satisfaction.

The appellate court applies when judgment legal and justified or there are no grounds to cancel the decision i.e. There may be some minor violations of a formal nature as norms of substantive and procedural law, but they are not, by virtue of Art. 330 of the Code of Civil Procedure of the Russian Federation as grounds for cancellation.

The appealed judicial act is canceled and either a new decision is made, or the decision is changed, or the proceedings are terminated, or the application is left without consideration.

The choice depends on the specific violations committed by the trial court.

Fundamental feature of the appellate court.

There are two types of appeal:

Incomplete.

Full – re-examination of the case.

All witnesses are called back and re-interrogated.

All evidence is rechecked.

Incomplete – when no new evidence is presented. Just a formal process.

The appellate court in both the Civil Procedure Code and the Arbitration Procedure Code of the Russian Federation does not have the power to:

Cannot reverse the decision and remand the case for a new trial;

The previous decision remains in force;

Make a new decision.

The appellate court will consider the case on its merits.

Unconditional grounds for reversing the decision – part 5 of Art. 330 of the Code of Civil Procedure of the Russian Federation - in the case of unconditional grounds for cancellation, the appellate court cancels and proceeds to consider the case according to the rules of the court of first instance, i.e. does not direct anywhere, but considers it as a court of first instance.

Article 330. Grounds for canceling or changing a court decision on appeal

5. If there are grounds provided for part four of this article, the appellate court considers the case under rules proceedings in the court of first instance without taking into account the specifics provided for in this chapter. On the transition to consideration of the case according to the rules of procedure in the court of first instance, a ruling is issued indicating the actions that must be performed by the persons participating in the case and the time frame for their completion.

The formal decision is cancelled, the case is reconsidered and it can be sent again to the appellate court, new evidence can be provided, demands can be changed, etc.

Sign of appeal – when considering a case in an appellate court, claims it is forbidden. (neither the subject nor the basis can be increased or decreased; it can be decreased, but then it is equated and formalized as a partial waiver of the claim).

A private complaint is filed against the ruling, appeal against the rulings of Art. 333 of the Code of Civil Procedure of the Russian Federation, private complaints are considered in the manner established in this main one with exceptions and features provided for in Art. 333 Code of Civil Procedure of the Russian Federation.

Article 333. Procedure for filing and consideration of a private complaint, presentation of a prosecutor

1. The filing of a private complaint, presentations of the prosecutor and their consideration by the court occur in the manner established by this chapter, with the exceptions and features provided for by this article.

2. The court of first instance, after receiving a private complaint, a prosecutor’s presentation, submitted to the established Article 332 of this Code term and corresponding requirements Article 322 of this Code, is obliged to send to the persons participating in the case copies of the private complaint, the prosecutor’s presentation and the documents attached to them and set a reasonable period during which these persons have the right to submit to the court of first instance objections in writing regarding the private complaint, the prosecutor’s presentation with the attachment documents confirming these objections and their copies, the number of which corresponds to the number of persons participating in the case.

3. A private complaint, a prosecutor’s submission to a ruling of the court of first instance, with the exception of rulings on the suspension of proceedings in a case, on termination of proceedings on a case, on leaving an application without consideration, on satisfying or refusing to satisfy an application, presentations on the review of court decisions on a new basis discovered or new circumstances, on forced execution or refusal to enforce a decision of a foreign court, on recognition or refusal to recognize a decision of a foreign court, on recognition and execution or refusal to recognize and enforce decisions of foreign arbitration courts (arbitrations), on cancellation decision of the arbitration court or refusal to cancel the decision of the arbitration court on extradition writ of execution for the forced execution of an arbitration court decision or refusal to issue a writ of execution for the forced execution of an arbitration court decision, are considered without notifying the persons participating in the case.

Taking into account the nature and complexity of the procedural issue being resolved, as well as the arguments of the private complaint, the prosecutor’s presentation and objections to them, the appellate court may summon the persons participating in the case to a court hearing, notifying them of the time and place of consideration of the private complaint, the prosecutor’s presentation.

4. A private complaint, a prosecutor’s submission against a ruling of the court of first instance, is considered by the court of appeal within the time limits prescribed Article 327.2 of this Code, unless other terms are established by this Code.

330 of the Code of Civil Procedure of the Russian Federation - is applied in full as far as possible when considering private complaints - they are called complaints against a determination.

Determinations are made on procedural issues, but they are rarely unreasonable. Therefore, in terms of appealing rulings on private complaints from 330 of the Code of Civil Procedure of the Russian Federation, Part 3 and Part 4 are applied, establishing violations of the norms of procedural law as grounds for the cancellation of a judicial act.