How to cancel a court decision? Procedure

The court order is issued in a simplified form, without hearing the arguments of the parties. But if the decision made does not suit one of the parties to the claim, under Art. 129 of the Code of Civil Procedure of the Russian Federation, it can be appealed. Cancellation of a court order is possible if there is strong evidence. How to file a complaint and what is the period for appealing the court order of the magistrate?

Important! If you are considering your own case related to the cancellation of a court order, then you should remember that:
All cases involving consumer fraud are unique and individual.
Understanding the basics of the law is useful, but does not guarantee results.
The possibility of a positive outcome depends on many factors.

In what cases is a court order issued?

A court order is issued in the following cases:

debts under a notarized transaction;
debt under a transaction fixed in writing;
official demands for payment and failure to receive it by the notary;
payment of child support for minor children;
payment of alimony for parents of retirement age by their adult children;
payment of wages and other payments to the employee under the Labor Code, as well as compensation for violation by the employer of the deadline for payment of wages, vacation, dismissal payments and other payments under the Labor Code;
payment of FSSP expenses related to the search for the defendant;
payment of debt for housing, utilities and telephone services;
payment of mandatory payments and contributions from members of a partnership or cooperative.

Court order for debt collection

A court order is a simplified form of legal proceedings in which a decision is made without the participation of the parties by a single judge. After receiving the order, the debtor has the right to either pay it off or appeal to the cassation court. If a letter arrives at the court with a mark of non-receipt, the court order comes into force within 10 days from the last day it was in the mail.

Payment of the debt is made according to the amount of the debt and the details specified in the court order.

The debt collection procedure is carried out as follows:

The judge makes a decision on the considered application from the claimant.
A 10-day period passes from the date of receipt of the order for the defendant to appeal the document.
The documents are submitted to the FSSP at the place of registration/residence of the defendant.
Enforcement proceedings open - the final stage of the civil process.

If the debtor does not pay the debt and does not file a complaint to cancel the court order, you should:

a visit by a bailiff to the defendant’s residence address to assess his financial condition;
forced debt collection.

Important!
An appeal against a court order occurs within 10 days after receiving the order and before the order enters into legal force.

Who can file a complaint against a court decision?

In accordance with Art. 320 of the Code of Civil Procedure of the Russian Federation the following may appeal a court decision:

Plaintiff and (or) defendant;
Other persons involved in the case;
A prosecutor previously involved in the case;
Persons who were not involved in the case, but whose rights and obligations were resolved by a decision.

Each of these persons may file an appeal against the court's decision, but the success of the appeal will depend on certain circumstances, which include the grounds for the appeal.

Grounds for appealing a court decision

When the judge reasonably applied all the norms of the law and determined the circumstances that are important for the correct and objective consideration of the case (Articles 55, 59-61,67 of the Code of Civil Procedure of the Russian Federation). If he presented exhaustive conclusions arising from the established facts, then such a decision cannot be reversed.

You can appeal a court decision only on the grounds provided by law. So, according to Art. 330 of the Code of Civil Procedure of the Russian Federation, the following are recognized as grounds for canceling or changing a court decision on appeal:

Incorrect identification of relevant circumstances;
Failure to prove the circumstances established by the court of first instance that were important to the case, but were not taken into account when making a decision;
Inconsistency of the conclusions of the court of first instance, set out in the court decision, with the circumstances of the case;
Violation or incorrect application of substantive law or procedural law.

Incorrect application of substantive law is expressed in:

1) Failure to apply applicable laws;
2) Application of laws that were not subject to application;
3) Inconsistency of the conclusions of the court of first instance, set out in the court decision, with the circumstances of the case;
4) Incorrect interpretation of the law.

Violation of procedural law will be grounds for changing or canceling a court decision in cases where such an action led or could lead to the adoption of an incorrect decision.

When is a court decision subject to 100% cancellation?

When considering a case, the court must comply with all procedural formalities. However, non-compliance by the court with some minor rule does not lead to a 100% cancellation of the court decision. Meanwhile, there are situations when the decision will definitely be reversed. Thus, a court decision can be reversed if:

• The case was considered by an incomplete or illegal panel - for example, the case was considered by a judge without the presence of a secretary, or another judge (who had not previously participated) came to the court hearing and made a decision on the case without sufficient grounds.
• The person who was supposed to take part in the case was not properly notified of the court hearing. For example, the defendant in a case involving the collection of debt from him under a loan agreement was not notified by the court of the date, place and time of court hearings.
• The case was heard in another language. The fact is that the language in which court hearings must be held in the Russian Federation is recognized as Russian, as well as the state language of the republics that are part of Russia. If, for example, the case was considered in the Republic of Buryatia in the Kyrgyz language or in the Buryat language, but the participants (one of them) did not speak the language of the republic and did not have the opportunity to use the services of an interpreter, then the court’s decision will be canceled.
• No minutes were kept during the court hearing. The minutes of a court session are a document that reflects the events occurring during the consideration of the case. If there is no protocol, the court decision will be canceled.
• The court decision was not signed by the composition of the court that considered the case. The court decision must be signed by the judge hearing the case. If there is no signature of the judge, or another judge signed it, then the decision is subject to cancellation.
• When making a decision, the confidentiality of the deliberation room was violated. That is, the judge, having retired to the deliberation room to make a decision, came out of it, or strangers came to the judge, or the judge talked to someone on the phone.

Each of these grounds leads to one hundred percent reversal of the court decision.

When can I appeal a court decision?

A court decision can be appealed within a month from the date of its adoption in final form, unless other deadlines are established by the Code of Civil Procedure of the Russian Federation. What does it mean?

As a general rule, a court decision can be appealed within a month from the date the reasoned decision is made. It happens that first the judge announces the operative part of the decision, and then within 5 (five) working days he makes a reasoned decision. So, the month period begins to be calculated from the moment the decision is made in its final form.

If the case was considered in a simplified manner, without calling the parties, then the decision comes into force within 15 days after adoption (in this case, only the operative part of the decision is prepared). However, if the court receives an application with a request to make a reasoned decision, then the period for appeal will begin to be calculated anew from the moment such a decision is ready.

In practice, the time frame for making motivated decisions is often delayed and usually ranges from 5 days to a month. Despite the fact that the law establishes a five-day period (clauses 1-2 of Article 199 of the Code of Civil Procedure of the Russian Federation).

How long does it take to appeal a court decision in absentia?

A decision in absentia is made if the defendant, notified of the time and place of the court hearing, does not appear at it and does not apply for consideration of the case in his absence. Such a decision can be appealed within seven days from the moment the defendant receives a copy of the decision (Article 237 of the Code of Civil Procedure of the Russian Federation).

In order to cancel a default judgment, the defendant must file an application for cancellation and indicate the reasons for his absence from court hearings. The application is sent in writing by mail or through the court office. The application must be accompanied by documents confirming the valid reasons for missing court hearings.

In the appeal procedure, a decision in absentia can be appealed within a month from the date of the decision to refuse the application to cancel this decision (clause 2 of Article 237 of the Code of Civil Procedure of the Russian Federation).

If the deadline for appealing a court decision in absentia has been missed, then along with an application to cancel the decision, you must submit an application to restore the missed deadline. Otherwise, the cancellation application will be refused. Read more about the cancellation of a court decision in absentia here.

How to file a complaint against a court decision?

The process of appealing a court decision begins with the preparation and filing of an appeal. By law, an appeal must contain:

Name of the court to which it is filed;
The name of the person filing the complaint, his place of residence and address;
The case number assigned in the court of first instance and an indication of the court decision being appealed;
Requirements of the person filing the complaint indicating the grounds for appeal;
List of documents that are attached to the complaint.
Date and signature of the applicant.

The appeal should not contain claims that were not stated in the court of first instance. Also, you cannot refer to evidence that was not presented to the court of first instance, unless you justify the impossibility of presenting it to the first court.

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The following package of documents must be attached to the appeal:

Original receipt confirming payment of the state duty
Receipt and list of attachments in confirmation of sending a copy of the complaint to the parties to the case
Documents that were not presented to the court of first instance with a statement justifying the impossibility of their presentation.
Sometimes it is necessary to attach an application for restoration of a missed procedural deadline

What arguments should be given in the complaint?

The appellate court makes a decision only within the limits of the arguments of the appeal. This means that the correctness of the appealed decision will be checked in the part that was appealed. In practice, this rule is not always applicable and courts sometimes go beyond the arguments of the appeal. In this regard, the question arises, what arguments need to be presented in the gutter in order to appeal the court’s decision?

It should be noted here that each decision is individual, and therefore requires an appropriate approach when appealing! Consequently, in order to decide what argument to give to justify the incorrectness of the court’s conclusions, it is necessary to study this decision and compare it with the materials of the entire case, as well as with the norms of the law. Identify where the logic of the court is incorrect, whether it is erroneous or where the process is violated.

For example, I had a case where the judge applied a provision of the law on compulsory motor liability insurance, although she should have applied a similar provision of the law on the Financial Ombudsman. These two rules of law establish the same liability for a financial organization, only its size in the first case is less than in the second. Consequently, by applying the wrong rule of law, the judge unreasonably released the defendant from collecting a larger payment, thereby violating the rights of the plaintiff. Thus, referring to judicial practice and the rule of law, I presented in the appeal the arguments that served to overturn the court's decision in this part.

Thus, in the appeal it is necessary to refer to the arguments that the Civil Procedure Code recognizes as significant for overturning the decision.

Cancellation of a court order

A court order does not come into force provided that:

materials evidencing the stated claim have not been submitted;
the plaintiff did not pay the state duty;
the form and content of the requirement do not comply with the law;
place of residence or location of the debtor outside the Russian Federation;
there are grounds for dispute about the law.

The judge must notify the judge of the refusal to accept the court order within three days from the date of the decision. In this case, after the cancellation of the court order, the collector has the right to re-submit claims for payment of debts to the same debtor.

Cancellation of a court order that has entered into legal force

After the court order comes into force, you can appeal it in the appellate court, provided that:

the debtor had valid reasons for missing the deadline for appealing the order;
the debtor did not receive the order forms.

Cancellation of a court order occurs in the following order:

Writing a complaint about disagreement with a court order.
Filing an appeal by mail or in person to the court. The state fee in cases related to challenging a court order is not paid regardless of whether the order has entered into force or not.

Neither the plaintiff nor the defendant is summoned to court. From the date of receipt of copies of the complaint to cancel the order, the parties may send their written objections and additions to the court, but only until the date of consideration of the complaint by the court.

Resolving the issue of canceling a court order.

Differences between an appeal and a cassation to overturn an arbitration court decision

A person whose rights and interests are affected may appeal the decision of the court of first instance. An appeal consists of a party’s request to review a judicial act due to disagreement in all or one part of it.

The appellate court re-examines the case and makes a decision based on the evidence presented. However, new circumstances will not be accepted unless there are compelling reasons.

The name of the required appellate authority is located at the end of the decision and on the website of the arbitration court. In total, there are 21 courts of appeal in Russia. Some of them consider complaints from one Arbitration Court, others relate to several regions.

The main difference between an appeal and a cassation is a different approach to the study of evidence. During an appeal, the court can add new evidence to the case; during a cassation, it examines how correctly it interpreted the parties’ arguments. It is worth noting that in practice, the chances of changing or canceling a court decision are reduced in each of the following instances, due to a decrease in the grounds for its cancellation.

Is it possible to appeal a court order?

The appeal occurs within a period of up to 10 days, which starts from the day the debtor receives the document by mail.

To appeal a court order, you need to:

Write an application to cancel the order, citing your own reasons for the objection.
Submit an application to the court in which the decision was made.
Wait for the appeal to be considered by the magistrate and a verdict is rendered.

But, if the defendant previously signed the notification of receipt of the court order and after 10 days has not contested it, then the claim will be rejected on the basis of a decision that has already entered into legal force.

Refund of state duty upon cancellation of a court order

If the court rejects the application for a court order or returns the order to the claimant, then the state duty must be returned. If the court accepts and considers the application, and only subsequently the order is canceled, then according to the Code of Civil Procedure of the Russian Federation, the state duty is not returned to the claimant.

When re-applying to the magistrate's court on the same issue, the claimant may not pay the state duty if:

the state fee was not returned;
less than three years have passed during which the state duty was paid and the initial decision was made;
The new application is accompanied by the original one, indicating payment of the state duty.

How decisions of an arbitration court are overturned in the cassation court

The next stage of protecting rights from a miscarriage of justice is an appeal to the cassation court. In this case, the following conditions must be met:

the decision was reviewed in the appellate court,
was denied reinstatement of the missed deadline.

So, what is needed to overturn an arbitration court decision by a cassation court?

The procedure for cassation - a step-by-step plan for a higher court:

Step 1. Pay the state duty,

Step 2. Compose a complaint. It is similar in form to the statement of claim and must contain the signature of the applicant or authorized representative,

Step 3. We file a complaint through the office of the first instance, but addressing it to the cassation authority,

Step 4. The cassation instance checks the correctness of compliance by lower courts with the rules of law within the limits of the requirements and arguments voiced in the complaint. You need to take it seriously, since at this stage you will not have the opportunity to change the requirements.

Step 5. The cassation authority has the right to:

leave the decisions of lower authorities unchanged and refuse to satisfy the complaint,
if violations of the law are detected, the judicial body adopts a new act,
remit the case for a new trial,
refer the case to another arbitration court.