Private complaint against a court ruling: sample, example, template

How is a private complaint against a court ruling drawn up? How to change or cancel illegal court rulings? A private complaint can only appeal court decisions. The court's decision is modified using other tools. This is an appeal, cassation appeal or appeal by way of supervision.

A court ruling is a judicial act on procedural issues. In them, a civil case is essentially not resolved. The court's ruling may be adopted in a separate document or made orally, with entry into the minutes of the court session.

Private complaint against a court ruling

Private complaint against the ruling of the magistrate

Private complaint against a court ruling: deadline for filing

The court ruling can be appealed within 15 days from the date of its adoption. The applicant must count the deadline from the next day (after the issuance).

The period for appealing rulings is established in Article 332 of the Code of Civil Procedure of the Russian Federation and cannot be changed by the court. However, it does not depend on the date of receipt of a copy of the determination. The ruling is considered to have entered into legal force if a complaint is not received against it within the established 15-day period.

According to Article 107 of the Code of Civil Procedure of the Russian Federation, this period is counted only in working days, that is, weekends and holidays must be excluded from the appeal period.

If the court receives a private complaint against a court ruling, the ruling will enter into legal force only after its consideration.

More information about calculating deadlines: Procedural deadlines.

The missed period for appeal can be restored if there are good reasons for this. To do this, it is necessary to submit along with the complaint an application for the restoration of the procedural period.

Appealing a ruling to leave an application without consideration

This process involves filing a separate procedural document. It is called a private appeal against a ruling of a district court or magistrate judge.

However, before you think about preparing it, you need to know the grounds for leaving a claim without consideration.

Based on the provisions of the Code of Civil Procedure of the Russian Federation, there are several reasons for such actions on the part of the court.

The first of them is the absence of a pre-trial procedure for resolving a dispute, if this is provided for both by the contract and by law.

For example, in disputes with an insurance company, a claim is required.

The court has the right not to consider a claim if it is filed (endorsed) by an incapacitated person or a person without the necessary authority.

The next reason for a claim to remain without consideration is the existence of the same dispute between the parties, which is heard by another judicial body. Likewise, the reason may be to refer the conflict to an arbitration court.

Expert commentary

Kosykh Tatyana Viktorovna

Lawyer, registration number No. 50/8948 in the register of lawyers of the Moscow region.

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Leaving a statement of claim without consideration is fraught with danger for the plaintiff if he did not attend court hearings two or more times without good reason, and did not ask the court to resolve the case without his participation. At the same time, the defendant should not insist on hearing the dispute on the merits.

Definitions against which a private complaint may be filed

By filing a private complaint, you can appeal against the court's decisions taken at first instance. Determinations of subsequent authorities cannot be appealed in this manner.

A private complaint may not be filed against all court decisions. But only those that interfere with the consideration of the case. The possibility of appealing certain types of determinations is specifically indicated in the Code of Civil Procedure of the Russian Federation.

Here is a list of definitions, the appeal of which is directly provided for in the Code. These are the definitions:

on a petition to transfer the case to jurisdiction (Article 33);
upon an application to recognize a person as a third party in the case under consideration (Article 42);
on an application to replace the legal successor (Article 44);
on a request to secure evidence (Article 65);
determinations on the disposal of material evidence (Article 76);
return of audio and video recording media (Article 78);
on issues related to legal costs (Article 104);
refusal to add a court fine or reduce it (Article 106);
restoration or refusal to restore a missed procedural period (Article 112);
refusal to accept the statement of claim (Article 134);
return of the application (Article 135);
leaving the statement of claim without progress (Article 136);
securing a claim (Article 145);
on an application for corrections to a court decision (Article 200);
on refusal to satisfy a petition for an additional court decision (Article 201);
on an application for clarification of a court decision (Article 202);
deferment or installment plan for the execution of a court decision, change in the method and procedure for its execution (Article 203);
on an application for indexation of awarded amounts of money (Article 208);
on an application for immediate execution of the decision (Article 212);
on an application to suspend the proceedings (Article 218);
refusal to satisfy the petition to cancel the ruling to leave the application without consideration on the grounds specified in paragraphs 7 and 8 of Art. 222 Code of Civil Procedure of the Russian Federation (Article 223);
refusal to issue a ruling prohibiting the person who issued the security from making payments or issues under the document (Article 296);
prohibiting the person who issued the document from making payments or issues under the document (Article 298);
leaving the appeal without progress (Article 323);
on a petition for the return of an appeal (Article 324);
on applications for review of court decisions based on newly discovered or new circumstances (Article 397);
execution of a foreign court decision (Article 412);
recognition of a foreign court decision (Article 413);
cancellation of the arbitration court decision (Article 422);
issuance of a writ of execution for the forced execution of an arbitration court decision (Article 427);
upon an application for the issuance of a duplicate of a writ of execution or a court order (Article 430);
on an application to restore the deadline for presenting a writ of execution (Article 432);
suspension or termination of enforcement proceedings (Article 440);
on an application to reverse the execution of a court decision (Article 444);

An approximate list of rulings that can be appealed, since they exclude the possibility of moving the case:

on refusal to accept an application for a court order (Article 125),
on termination of proceedings in the case (Article 221),
about leaving the application without consideration (Article 222, except for the cases provided for in paragraphs 7 and 8 of this article);
on an application for a private court ruling (Article 226);

Article 331 of the Code of Civil Procedure of the Russian Federation. Appealing the rulings of the court of first instance (current version)

2. Despite the laconic presentation of the commented norm, its content includes the above-mentioned object of appeal, the subjects of appeal, as well as a special means of appeal - a private complaint against the ruling of the court of first instance. According to the provisions of Part 1 of the commented article, the subjects of appeal are the persons participating in the case, among whom the legislator separately identifies the parties and the prosecutor. Based on the content of the commented norm and the provisions of Part 3 of Art. 320 of the Code of Civil Procedure of the Russian Federation (see commentary to it), persons not involved in the case also have the right to file a private complaint against the ruling of the court of first instance. In this regard, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 13 of June 19, 2012, recommended that the court of first instance check whether the private complaint of a person not involved in the case contains a justification for the violation of his rights and (or) the imposition of responsibilities on him the appealed ruling of the court of first instance (clause 47).

As follows from the provisions of the commented norm, an appeal against rulings made by the court of first instance is carried out through a special procedural document - a private complaint, and if the subject of the appeal is a prosecutor, he brings a presentation to the ruling of the court of first instance. The legislator, considering these procedural documents as the basis for the review by the court of appeal of the rulings made by the court of first instance, does not establish any requirements for the form and content of a private complaint or presentation. It seems that, based on the general rules for drawing up procedural documents, a private complaint or presentation must be drawn up in writing according to the rules for drawing up an appeal or presentation. In particular, a private complaint or presentation must contain an indication of which court this document is addressed to, from whom it comes, what ruling of the court of first instance is being appealed, and, of course, it must express the requirements of the person filing the private complaint, or the prosecutor making the presentation, as well as the reasons why they consider the decision of the trial court to be incorrect. A person filing a private complaint has the right to attach to it the documents to which he refers in the private complaint (if any). An important requisite of any procedural document, including a private complaint or presentation, is the signature of the person filing the complaint or his representative. In the latter case, if the representation is based not on the law, but on an agreement, a power of attorney for the representative must be attached to the private complaint, containing information about the representative having the appropriate authority to file a private complaint or representation.

Considering that the rulings of the court of first instance, issued by it during the trial of the case, do not resolve the case on the merits, appealing such rulings presupposes the possibility of considering on appeal only the ruling itself and the arguments of the private complaint, the prosecutor’s presentation, and not the entire case, as is the case place in appellate review of court decisions. In this regard, the Plenum of the Supreme Court of the Russian Federation in paragraph 45 of the Resolution No. 13 of June 19, 2012 recommends that the courts of first instance, in the case of filing a private complaint, submit a prosecutor's submission to the ruling of the court of first instance, by which the proceedings in the case have not been completed, and the case itself is still is not allowed on the merits in the court of first instance (for example, on rulings on securing a claim, refusing to provide evidence, etc.), in order to comply with reasonable deadlines for legal proceedings, send to the appellate court, along with an inventory of all documents available in the case, compiled according to private complaint, prosecutor's submission material. Such material includes the original of the private complaint or presentation of the prosecutor and the appealed ruling of the court of first instance, as well as copies of documents certified by the court of first instance necessary for their consideration. After consideration of a private complaint or the prosecutor’s submission to the ruling of the court of first instance, the material compiled on the private complaint or the prosecutor’s submission is attached to the corresponding civil case.

In addition, based on the provisions of the commented norm, the duty of the appellate court is to check only the judicial act against which a private complaint or a prosecutor’s presentation was filed, which ensures the implementation of the principle of discretion in civil proceedings and maintains a balance of interests of the parties to civil proceedings. However, in judicial practice there are cases when appellate courts went beyond the limits of their powers.

Example: on the same day, a district court issued two rulings refusing to satisfy two requests to transfer the case to jurisdiction. At the same time, in a private complaint filed with the court of appeal, the question was raised about the cancellation of only one of the determinations, which denied the transfer of jurisdiction to the Royal Court of Guernsey, since this court was determined by the parties to the contract as the court competent to hear disputes. However, the civil panel of the appellate court also verified the legality of the district court’s decision to refuse to transfer the case to the Royal Court of Guernsey due to the finding of the majority of evidence, which the applicant did not appeal. Thus, the appellate court checked the legality of the judicial act, which was not appealed, which resulted in a significant violation of the rules of procedural law (see Ruling of the Supreme Court of the Russian Federation of July 19, 2021 No. 5-КГ16-104).

3. In part 2 of the commented article, the legislator establishes the powers of specific courts to consider private complaints, submissions for the determination of the relevant court of first instance, based on the hierarchical structure of the judicial system of courts of general jurisdiction. In general, the provisions of the commented norm repeat the provisions of Art. 320.1 of the Code of Civil Procedure of the Russian Federation, according to which a higher court of appeal is authorized to review the act of the court of first instance: for rulings of a magistrate - a district court, for rulings of a district court - the supreme court of a republic, a regional court, a court of a federal city, a court of an autonomous region, a court Autonomous Okrug, etc. Exceptions that distinguish the commented norm from the above are the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation and the Judicial Collegium for Military Cases of the Supreme Court of the Russian Federation, since instead of these judicial bodies authorized to review judicial decisions of the Supreme Court of the Republic, the regional, regional court, the federal city court meaning, a court of an autonomous region, a court of an autonomous district, a district (naval) military court, determinations of the listed courts of a regional level are reviewed on appeal by the appellate instance of the supreme court of the republic, a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, district (naval) military court. In addition, from the number of courts authorized to review the rulings of the court of first instance, the appellate instance of the Moscow City Court is excluded as it specializes in reviewing decisions of the same court in civil cases that are related to the protection of copyright and (or) related rights and for which it has accepted preliminary interim measures.

The Plenum of the Supreme Court of the Russian Federation separately indicates to the appellate courts the possibility of considering private complaints and prosecutor's submissions against rulings of the court of first instance related to decisions of foreign courts and foreign arbitration courts (arbitrations). In particular, in accordance with paragraph 46 of Resolution No. 13 of June 19, 2012, a private complaint, a prosecutor’s submission against the ruling of the court of first instance on the forced execution of a decision of a foreign court or on the refusal to enforce a decision of a foreign court; rulings on recognition of a decision of a foreign court or refusal to recognize a decision of a foreign court; rulings on the recognition and execution of decisions of foreign arbitration courts (arbitrations) or on refusal to recognize and enforce decisions of foreign arbitration courts (arbitrations) are submitted to the appellate instance of the supreme court of the republic, a regional, regional court, a court of a federal city, a court of an autonomous region, an autonomous court districts.

4. In the previous parts of the commented article, the possibility of appealing certain types of rulings of the court of first instance separately from court decisions was considered. The legality of other determinations is verified on appeal along with the decisions of the courts of first instance, since objections to them are included in the appeals. Such definitions include acts, the results of which are included in the court decision and reflected in it. At the same time, with regard to such determinations, the Code of Civil Procedure of the Russian Federation does not contain special instructions on the possibility of appealing them, and they do not exclude the possibility of further progress in the case. In particular, as such determinations, the Plenum of the Supreme Court of the Russian Federation in Resolution No. 13 of June 19, 2012 proposes to consider determinations on the acceptance of a claim (application) for the proceedings of the court of first instance, on the preparation of the case for trial, on the refusal to satisfy a petition for recusal judges, on requesting evidence, on consolidating cases into one proceeding, on separating the claim into separate proceedings, on postponing the trial (paragraph 3, paragraph 43). The category of such determinations also includes a court ruling on the refusal to correct a clerical error in a court decision, which is also not subject to independent appeal to the appellate court, since it does not exclude the possibility of further progress of the case. The absence in the law of a procedure for appealing a court ruling refusing to correct a clerical error in a court decision is due to the fact that when such a ruling is made, no new decision is made that otherwise defines the rights and obligations of the parties.

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See: Determination of the Constitutional Court of the Russian Federation of December 22, 2015 N 2840-O “On the refusal to accept for consideration the complaint of citizen Andrey Mikhailovich Kushnarev about the violation of his constitutional rights by Article 331 of the Civil Procedure Code of the Russian Federation.”

In the case specified in the commented part, the ruling of the first instance court will not be an independent object of consideration by the appellate court. The Constitutional Court of the Russian Federation has repeatedly explained to applicants that the absence in the law of a procedure for appealing one or another ruling of the court of first instance does not lead to an unlawful restriction of the constitutional right to judicial protection, since a person participating in the case is not deprived of the right to include objections to such rulings in the appeal; therefore, the possibility of checking the legality and validity of these determinations, as well as the actions of the judge in preparing the case for trial, is not eliminated. In particular, as indicated in one of the rulings of the Constitutional Court of the Russian Federation, the inclusion of objections to such determinations in an appeal against the final court decision in a case does not exclude the possibility of an appeal review of the legality and validity of such a determination, but only at a later date.

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See, for example, Determination of the Constitutional Court of the Russian Federation dated September 29, 2015 N 2013-O “On the refusal to accept for consideration the complaint of citizen Natalia Nikolaevna Vasyashina about the violation of her constitutional rights by a number of provisions of the Civil Code of the Russian Federation and the Civil Procedure Code of the Russian Federation.”

See: Determination of the Constitutional Court of the Russian Federation dated May 29, 2014 N 1106-O “On the refusal to accept for consideration the complaint of citizen Yuri Andreevich Neplyuev about the violation of his constitutional rights by the provisions of Articles 112, 237 - 242, 331, 381 and 383 of the Civil Procedure Code Russian Federation".

It should be borne in mind that the distinction established by the legislator in the commented article on the procedure for appealing the rulings of the court of first instance is of great importance in the practical activities of the courts when exercising the right to appeal such rulings.

Example: The Moscow City Court, by its Appeal ruling dated December 8, 2021 in case No. 33-49707/2016, refused to satisfy a private complaint against the protocol ruling of the court of first instance based on the results of the court’s resolution of petitions to obtain evidence in the case, call witnesses and postpone the consideration of the case . In returning the private complaint to the applicant, the court proceeded from the fact that the law does not provide for the possibility of appealing the court’s protocol ruling on the issue of resolving the petition. In addition, this Determination does not prevent the progress of the case.

Definitions for which a private complaint is not filed

A private complaint cannot be filed against the remaining rulings; one can refer to the illegality of the court’s procedural actions in an appeal against the court decision. In particular, rulings on:

trial of the case in a closed court session;
recusal of the judge, secretary, prosecutor and other participants in the case;
letter of request;
appointment of a forensic examination;
on performing an on-site inspection;
on the rejection of comments on the minutes of the court hearing, etc.

Court ruling in a civil case: concept, possibility of appeal

In accordance with the norms of procedural legislation of the Russian Federation, civil cases are considered to be legal proceedings in which at least one of the parties (plaintiff or defendant) is an individual. Such processes most often deal with family, housing, labor and inheritance disputes. Civil proceedings are carried out in the courts of first instance.

As part of the judicial process in a specific case, the court makes an appropriate decision or determination:

A court decision is made based on the results of the proceedings and resolves the case on the merits of the problem that gave rise to the filing of the claim. If one or another party to the proceedings disagrees with the decision, it can be challenged by filing an appeal.
The court ruling is made during the process. It does not resolve the case on its merits and/or complicates or makes its further progress impossible. Like the final decision, the determination can be appealed in accordance with the legally established procedure.

How to file a private complaint against a court ruling

The applicant must adhere to general drafting rules similar to those for an appeal against a court decision. Since they have the same reasons for leaving without moving or returning.

Most private complaints are considered without notifying the persons participating in the case, based on the case materials and arguments of the complaint; it will not be possible to verbally convey your position to a higher court. Therefore, a private complaint should be written as detailed and understandable as possible.

An exception to this rule is the appeal of rulings to suspend proceedings in a case, to terminate proceedings in a case, to leave an application without consideration, to revise court decisions, to execute a decision of a foreign court, to recognize a decision of a foreign court, to cancel a decision of an arbitration tribunal, or to extradite a writ of execution for the execution of an arbitration court decision. In the listed cases, the court notifies the persons participating in the case about the time and place of consideration of the complaint. He can also do this to objectively consider the complaint when the issue is particularly complex.

Consequences of leaving a claim without consideration

Leaving a claim without progress and consideration in procedural terms should be distinguished from refusal to accept a statement of claim or its return.

We recommend! Private complaint against the ruling to the board of appeal

The last two actions are possible when the court has not yet initiated proceedings in the case. The claim can be left without consideration when the proceedings are opened.

If the judge decides to leave the claim without consideration, then a new application can be submitted to the counterparty, taking into account previous mistakes.

It can also include additional requirements that were not previously stated.

For example, during the first trial, the amount of the principal debt, penalties, interest, etc. increased. Therefore, all these amounts may become the subject of a second lawsuit.

For reference: If the claim is left without consideration, the state fee is returned or taken into account when submitting a new application.

There is another aspect of leaving a claim without consideration. As soon as such an unpleasant situation occurs, the statute of limitations will continue to run. This must be taken into account when preparing a new lawsuit.

For example, before the first application to court, the statute of limitations was already 2 years. Then, with a new claim, firstly, this period is taken into account, and secondly, the time of the previous consideration of the case.

Private complaint against the decision to leave the application without consideration

Consideration of a private complaint against a court ruling

A private complaint is considered at a court hearing of the second instance. The court hearing is held even if the participation of citizens is not provided. A protocol on the conduct of the court session is drawn up.

After considering a private complaint, the district court issues an appellate ruling. The court's ruling may remain unchanged, and the private complaint may not be satisfied. It is on this day that the appealed ruling comes into force. The court may overturn the ruling. Then the controversial issue is resolved by an appeal ruling, which comes into force immediately.

When filing a complaint, it should be taken into account that this does not entail the suspension or postponement of the consideration of the civil case. The court will separate the materials on the private complaint against the court ruling, and will continue to consider the case itself on the merits.

Sample complaint

In the Tverskoy District Court of Moscow From: Yu. Yu. Vasilkov, residing: Moscow, st. 1st Ivanovskaya, 5, apt. 5

PRIVATE COMPLAINT

for determination by the magistrate

Magistrate Gerasimsky M.M., assigned to the 111th judicial district in the Tverskoy district, July 20, 2021, in a civil trial on the claim of Vasilchikov Yu.Yu. to Romashkina A.A. for the recovery of a debt in the amount of 9,990 rubles determination to refuse to consider the plaintiff's claims.

The ruling made by Magistrate M. M. Gerasimsky does not comply with the requirements of the law, since he considered that there was already a decision of the civil court on this dispute dated June 20, 2020. However, these disputes are different and independent, therefore the refusal of the magistrate is unfounded.

Based on the above facts and circumstances, guided by Art. 331-333 Code of Civil Procedure of the Russian Federation,

Ask:

To cancel the illegal ruling made by Magistrate M. M. Gerasimsky dated July 20, 2021 in a civil proceeding based on the claim of Yu. Yu. Vasilchikov against A. A. Romashkina for the return of a debt in the amount of 10,000 rubles.
Make another determination by which to accept the claim for proceedings.

List of applications:

Copy of private complaint

July 25, 2021 Applicant’s signature: _______

Sample of a private complaint against a court ruling We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

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