Cassation procedure for appealing a decision of the arbitration court of first instance

Lawyer Antonov A.P.

The cassation procedure for appealing a decision of the arbitration court of first instance is applied to decisions that have entered into legal force. A necessary condition for filing a cassation appeal is to appeal the court decision to the court of appeal (part 2 of article 181, part 1 of article 273 of the Arbitration Procedure Code of the Russian Federation) (the principle of sequential appeal of judicial acts of the courts of first and appellate instances). An exception to this rule are decisions made by the court of first instance, which enter into legal force immediately after their adoption and therefore can only be appealed in cassation (decisions to award compensation for violation of the right to a trial within a reasonable time or the right to execute a judicial act within a reasonable period (part 4 of article 222.9 of the Arbitration Procedure Code of the Russian Federation), as well as decisions of the Intellectual Rights Court adopted by this court as a court of first instance). Decisions made by the court of first instance in summary proceedings can be appealed only on the grounds provided for in Part 4 of Art. 288 of the Arbitration Procedure Code of the Russian Federation (presence of unconditional grounds for canceling a court decision). The procedure for filing a cassation complaint is similar to the procedure for filing an appeal. A cassation appeal is filed with the arbitration court of first instance that made the decision. Within three days from the receipt of the complaint, the court of first instance is obliged to send it along with the case to the court of cassation. The complaint must be submitted in writing. It can be sent to the court by mail, electronically, or can be submitted directly to the office of the trial court. If a cassation appeal is filed electronically, it must be signed with an enhanced qualified electronic signature (clause 3.2.2 of the Procedure approved by Order No. 252). When preparing a cassation appeal, it is necessary to take into account the requirements of the Arbitration Procedure Code of the Russian Federation for the form and content of the complaint. According to Part 2 of Art. 277 of the Arbitration Procedure Code of the Russian Federation, the cassation appeal must indicate the following information: the name of the arbitration court to which the cassation appeal is filed; the name of the person filing the complaint and his procedural position, as well as indicate other persons participating in the case, their addresses or place of residence; name of the arbitration court that adopted the appealed decision, resolution, case number and date of adoption of the decision, resolution, subject of the dispute. The text of the cassation appeal must also indicate the requirements of the applicant for verification of the legality of the appealed judicial act and the grounds on which the applicant is appealing the decision or resolution. In this case, a reference to laws or other regulatory legal acts, the circumstances of the case and the evidence available in the case is required (clause 4, part 2, article 277 of the Arbitration Procedure Code of the Russian Federation). It should be noted that according to Part 1 of Art. 286 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of cassation checks the legality of decisions and resolutions adopted by the arbitration court of the first and appellate instances, establishing the correct application of the norms of substantive law and norms of procedural law when considering the case and adopting the appealed judicial act and based on the arguments contained in the cassation appeal and objections regarding the complaint, unless otherwise provided by law. The cassation appeal must indicate a list of documents attached to the complaint. The complainant also has the right to indicate telephone numbers, fax numbers, email addresses and other information necessary for consideration of the case, existing petitions. The duty of the applicant of a cassation appeal is to send by registered mail with acknowledgment of delivery or hand over a copy of the complaint and the documents attached to it against receipt to other participants in the process (Part 3 of Article 277 of the Arbitration Procedure Code of the Russian Federation). In addition to the requirements for filing a cassation appeal, the law provides for a list of documents that must be attached to the complaint. According to Part 4 of Art. 277 of the Arbitration Procedure Code of the Russian Federation, the following must be attached to the cassation appeal: a copy of the appealed judicial act; documents confirming the payment of the state duty in the established manner and amount or the right to receive a benefit in the payment of the state duty, or a petition for a deferment, installment payment of the state duty, or a reduction in its amount; documents confirming the sending or delivery to other persons participating in the case, copies of the cassation appeal and documents attached to it; a power of attorney or other document confirming the authority to sign the cassation appeal. The specified documents can be submitted to the arbitration court in electronic form (Part 5 of Article 277 of the Arbitration Procedure Code of the Russian Federation). If the applicant of the cassation appeal complies with the requirements for the form and content of the complaint, the arbitration court of the cassation instance accepts the cassation appeal for proceedings. In case of violation of the requirements for the form and content of the cassation appeal, the arbitration court of the cassation instance leaves the complaint without progress or returns it (Articles 280, 281 of the Arbitration Procedure Code of the Russian Federation). A ruling to leave a cassation appeal without progress is made by the cassation court if the complaint is filed in violation of the requirements provided for in Art. 277 Arbitration Procedure Code of the Russian Federation. In this ruling, the court indicates the grounds for leaving the appeal without progress and the period during which the applicant must eliminate the circumstances that served as the basis for leaving the cassation appeal without progress (Article 280 of the Arbitration Procedure Code of the Russian Federation). If the applicant of the cassation appeal eliminates the circumstances that served as the basis for leaving the complaint without progress, the complaint is accepted for proceedings by the arbitration court of the cassation instance. If these circumstances are not eliminated within the period established in the ruling, the cassation court returns the complaint and the documents attached to it to the person who filed the complaint. According to Part 1 of Art. 281 of the Arbitration Procedure Code of the Russian Federation, the court of cassation returns the cassation appeal if it finds that: - the complaint was filed by a person who does not have the right to appeal a judicial act in cassation proceedings, or filed against a judicial act, which, in accordance with the Arbitration Procedure Code of the Russian Federation, is not appealed in cassation proceedings (in particular, the decision of the court of first instance and the decision of the court of appeal, adopted in a case considered in summary proceedings, can be appealed to the arbitration court of cassation only on the grounds provided for in Part 4 of Article 288 of the Arbitration Procedure Code of the Russian Federation (the presence of unconditional grounds for cancellation of a judicial act), for example, Resolution of the Supreme Court of the Russian Federation dated November 25, 2019 N 310-ES19-20999 in case N A54-9708/2018, Resolution of the Arbitration Court of the Ural District dated October 15, 2019 N F09-4909/19 in case N A71- 19315/2018); - the complaint is not signed or signed and filed with the court by a person who does not have the authority to sign it; - the complaint was filed after the expiration of the filing deadline established by the Arbitration Procedure Code of the Russian Federation, and does not contain a request for its restoration or the restoration of the missed deadline was refused; - before the ruling on the acceptance of the cassation appeal for proceedings by the arbitration court of the cassation instance, the applicant of the appeal received a petition for its return; - the circumstances that served as the basis for leaving the complaint without progress have not been eliminated within the period established in the court ruling; — the complaint was filed against a judicial act, which was not appealed to the arbitration court of appeal, unless otherwise provided by the Arbitration Procedure Code of the Russian Federation (Decision of the Supreme Court of the Russian Federation dated August 20, 2018 N 302-ES18-11975 in case N A19-3977/2014). Another basis for returning a cassation appeal is the case if the cassation court rejected the petition of the applicant for a deferment or installment payment of the state fee or for reducing its amount. The court issues a ruling on the return of the cassation appeal, which indicates the grounds for returning the appeal. By virtue of Part 4 of Art. 281 of the Arbitration Procedure Code of the Russian Federation, the return of a cassation appeal does not prevent the repeated filing of a cassation appeal with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for its return. A cassation appeal is not subject to consideration on the merits if, after its acceptance for proceedings: - the applicant of the complaint received a request to abandon the complaint and the refusal was accepted by the cassation court (Articles 49, 282 of the Arbitration Procedure Code of the Russian Federation); - the arbitration court of cassation will establish that the organization that is a party to the case has been liquidated and this circumstance arose after the decision of the court of first instance, and there are no successors (clause 5, part 1, article 150 of the Arbitration Procedure Code of the Russian Federation, clause 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 12, Ruling of the Supreme Court of the Russian Federation dated 02/05/2019 N 310-KG18-25894 in case N A14-3561/2018); - establishment by the court of cassation of the fact that the applicant missed the deadline for filing a complaint after accepting it for proceedings, provided that the court recognizes the reason for missing the deadline for filing an appeal as disrespectful (clause 37 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 99). In this case, the arbitration court of the cassation instance terminates the proceedings on the cassation appeal (Article 282 of the Arbitration Procedure Code of the Russian Federation).

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Leaving the cassation appeal without progress

According to Art. 280 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of the cassation instance, having established, when considering the issue of accepting a cassation appeal for proceedings, that it was filed in violation of the requirements established for its form and content by Article 277 of this Code, issues a ruling to leave the cassation appeal without movement.

In the ruling, the arbitration court indicates

grounds for leaving the cassation appeal without progress and
the period during which the person who filed the cassation appeal must eliminate the circumstances that served as the basis for leaving the cassation appeal without progress.

A copy of the ruling on leaving the cassation appeal without progress is sent to the person who filed the cassation appeal no later than the next day after the day it was issued.

If the circumstances that served as the basis for leaving the cassation appeal without progress,

will be eliminated within the period specified in the court ruling, the cassation appeal is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court of the cassation instance;
are not eliminated within the period established in the ruling, the arbitration court returns the cassation appeal and the documents attached to it to the person who filed the appeal in the manner established by Article 281 of the Code.

Feedback: who can object?

Important. The circle of persons who have the right to submit a review is established by law in Art. 279, 291.4 Arbitration Procedure Code of the Russian Federation.

The response is a reasoned objection to the requirements of the cassation appeal. It is supported by documents confirming the objections.

A copy of the review and copies of documents are sent to all participants in the process. Most often they are notified by mail (a notification receipt is required).

A well-written review can radically influence the court’s decision when reviewing a case.

What to ask for in the final section of a complaint to the Supreme Court

The final section, the petition, contains the actual appeal to the Supreme Court, that is, what you want to achieve from filing a complaint. Goals could be:

Cancellation of all issued acts and a new consideration (in the event that none of them is rendered in your favor);
Partial cancellation of acts, despite the fact that some of them remain in force (if some of them were adopted taking into account your requirements);
Changing acts, which entails the adoption of a new resolution by the Supreme Court itself (if an error in the interpretation or application of substantive law is justified);

A request in cassation may depend both on the nature of the violations at the stage of first instance, appeal and cassation, as well as on the completeness of the examination of evidence and other individual reasons.

Consultation on appeal to the Supreme Court

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Preparation of cassation appeals in the Supreme Court. Appeal to the Supreme Court. Lawyer for complaints to the Supreme Court.

Termination of cassation proceedings

According to Art. 282 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of the cassation instance terminates the proceedings on the cassation appeal if, after accepting the cassation appeal for the court's proceedings

a petition was received from the person who filed it to abandon the cassation appeal and
the refusal was accepted by the court in accordance with Art. 49 of the Code.

In this case, a repeated appeal by the same person on the same grounds to the arbitration court with a cassation appeal is not allowed.

The arbitration court issues a ruling on the termination of proceedings on a cassation appeal, which can be appealed to the arbitration court of the cassation instance in the manner established in Art. 291 Code.

The ruling may resolve issues regarding the distribution of legal costs between the parties and the return of state fees from the federal budget. Copies of the ruling to terminate the cassation appeal proceedings are sent to the persons participating in the case.

The arbitration court of cassation has the right, at the request of persons participating in the case, to suspend the execution of judicial acts adopted by the arbitration court of the first and appellate instances, provided that the applicant

provided security by depositing funds in the amount of the disputed amount into the deposit account of the arbitration court of the cassation instance or by providing a bank guarantee, surety or other financial security for the same amount.