How to clarify your position during a case in court
The company wants to file an appeal or cassation with additional justification for its position, which will help overturn the court decision. It is not clear how to add additions, because the APC does not establish special rules for this. In such a situation, it is necessary to rely on the opinion of the courts. The article contains three rules from practice; adhere to them so that the court accepts additional arguments.
Submission deadlines
According to Article 325 of the Code of Civil Procedure of the Russian Federation, the filing deadlines are set individually by the civil court of first instance. The corresponding notice is sent along with the appeal by registered mail.
The court determines the exact period that is sufficient to think over and transfer the necessary documents to the participants in the process. In most cases, the period does not exceed one month.
Similar deadlines and filing procedures are established for revocation in arbitration cases.
It is possible to submit an application after the expiration of the deadline - the court will accept the document and consider it without fail. However, such delays by default mean prolongation of the consideration of the case.
Procedural law allows participants in a trial to express disagreement directly at a court hearing.
Submit additions on time
Sometimes, after filing a complaint with a court of appeal or cassation, it becomes necessary to present additional arguments in favor of canceling or changing the appealed decision. This is relevant in situations where short complaints are filed without justification, for example, when the motivation part is still missing or when the applicant has not received court notices and is not familiar with the case materials.
In order to accept additions to the complaint, the court will find out the period when the company submitted them. The APC does not establish a specific time period within which additions must be submitted. The courts adhere to the rules that are established for filing appeals and cassation complaints.
An appeal is filed within a month after the arbitration court of first instance adopted the appealed decision. The time to file a cassation appeal is two months. This period begins to run from the day when the appealed judicial act came into force.
The company may have missed the deadline for submitting amendments. In this case, you should be prepared to justify the reasons why it was impossible to present additional arguments on time.
For an applicant who missed the deadline without a good reason, the court may refuse to accept additions to the complaint. Example: customs filed a petition to the cassation court to include additions. The court refused because the applicant missed the deadline: the lower court made a decision on January 17, and the customs office filed a petition only in April.
The court also noted that the government agency actually filed an additional complaint with new arguments, missed the time for filing it, but did not justify the missed deadline with valid reasons.
An additional basis for refusal will be the fact that the applicant submitted additions immediately before the meeting. For example, in one case, the company wanted to challenge the court decision and filed additional materials to the complaint. The court still refused the company.
Firstly, society presented new evidence and presented arguments that were not there before, and this cannot be done. Secondly, the company filed a motion to add additions to the case 15 minutes before the meeting, so the court did not accept new arguments.
Courts do not always refuse to accept additions that applicants file outside the appeal periods. For example, courts tend to accept additions if they have doubts about the position, in which case the hearing is adjourned or adjourned. The judges need time between meetings to separately study the new arguments presented.
Courts of appeal and cassation rarely explain the reasons why they grant requests for addition of additions. Because of this, in judicial practice the conclusions still prevail that it is unacceptable to include additions that the applicant submitted after the established time intervals.
There are also opposite positions, when judges accepted additional arguments outside the deadlines, but did not motivate their decisions. For example, the Supreme Arbitration Court accepted the party’s additional arguments, but did not even comment on the fact that the applicant filed them late. This suggests that it is legal to file amendments even if the applicant missed the deadline.
Feedback on the court appeal, sample from practice
As stated above, the Defendant did not exercise his right to present objections in the court of first instance, with the aim of delaying the trial.
In addition, qualified legal assistance was provided to the Claimant by lawyer Digin Vadim Aleksandrovich at the stages of claim, pre-trial and preparatory work, which is associated with working with documents on this dispute to prepare the relevant claim, its filing with the Moscow Arbitration Court, as well as directly representing the interests of the Claimant in this case in court.
Please note that proving the amount of claims totaling more than 9,000,000 (nine million) rubles involves analyzing a large amount of primary documentation related to numerous deliveries under a foreign trade contract of a wide range of products; settlements in different currencies with different deadlines for fulfilling obligations.
Collecting expenses in the amount of RUB 150,000. for the provision of qualified legal assistance by the lawyer of the city of Podolsk V.A. Digina, the court not only attached to the case materials documentary evidence of expenses: payment order No. 5462 dated November 15, 2016 on the transfer of the above funds and agreement on the provision of qualified legal assistance No. D-2015 /NUMBER dated September 28, 2016, proving the fact of payment under the contract, but also took into account when making a decision regarding the collection of expenses, the composition and volume of qualified legal assistance provided, its average market value, taking into account the high qualifications and extensive experience in advocacy of lawyer Vadim Alexandrovich Digin, who is the head of the Law Office “Constitutional Human Rights Defense” No. 0174 of the Chamber of Lawyers of the Moscow Region.
In addition, I would like to especially note that, in the opinion of the plaintiff, the appeal was filed not for the purpose of appealing the decision of the court of first instance on the merits, but using the mechanism of abuse of law, pursuing the goal of delaying the execution of the fair and legally justified Decision of the Moscow Arbitration Court on case No. A40-number/2015-76-2096.
Thus, the Plaintiff believes that the Defendant’s position is legally untenable, since the totality of the evidence presented indicates the validity of the Plaintiff’s position and, therefore, the claims of Organization 3 LLC, taking into account the elimination of a technical error (typo), are subject to satisfaction in full, and the appeal , in turn, has no legal grounds for satisfaction.
Send additions to the other side of the dispute
Companies that submit additional arguments to the court for complaints are required to show them to all participants in the case. That is, it is necessary to send additions to other participants, including the second party to the dispute, so that it has time to prepare arguments in defense.
It is risky not to send additional arguments to opponents in a dispute, since the courts believe that in this case the company is violating the procedural order and refuse to accept the additions. Example: a company went to court to recover lost profits from the defendant and lost. When the case was reconsidered, she submitted additions to the complaint to the court, but it did not accept them. The reason for the refusal was that the company did not send them to the defendant, thereby violating the principles of adversarial arbitration.
When you begin to send additional arguments to the other side, keep evidence that you did this. For example, if you send paper materials by mail, do not throw away the mailing receipt. Ask the other party to send confirmation of receipt of the letter. The court may not accept additions to the complaint if the company does not prove that it sent them to other parties to the dispute.
Sometimes the court may accept additional arguments to the complaint, even if the applicant did not send them to the other party. Then the judges will give all participants in the case time to familiarize themselves with the additions and prepare objections to new arguments. To do this, the court, at the request of the party, will announce a break or postpone consideration of the complaint for a while.
Difference between review and objection
The concepts of “revocation” and “objection” in legal proceedings cannot be used as synonymous expressions within the framework of different Procedural Codes of the Russian Federation. The key differences between the definitions are as follows:
- the review contains the objections of the participants to the claim of the arbitration case;
- objection – civil case.
From the point of view of official documents filed by parties to a dispute in a lawsuit, these terms cannot be used interchangeably.
Each term refers to a separate area of law and is enshrined in distinct legal documents. The provisions regarding revocation are enshrined in Article 131 of the Code of Civil Procedure of the Russian Federation, objections to the appeal are in Article 149 of the Code of Civil Procedure of the Russian Federation.
However, as terms, these concepts can be used in related meaning within a particular context.
The review represents the participants' objections to the demands of the second party's appeal. The document in arbitration law must be submitted by the defendant without fail.
The relationship between the two concepts is established as “object-subject”; therefore, it is incorrect to call the arbitration review an objection as an official document.
In turn, an objection is formed in civil law in the format of a review, but in office work it is not a mandatory document.
The defendant has the right to express his disagreement with the appeal in writing at his own request, without court requirements.
The concept of “response to an appeal” can be used instead of “objection” in a civil case. It is incorrect to use the reverse definition.
Objection to a complaint in administrative and criminal cases
In cases of administrative offenses and criminal offenses, the procedure for preparing and filing an objection to a complaint is generally similar to the procedure established for civil proceedings.
In an administrative case, the rules for filing an objection are established by Art. 30.15 Code of Administrative Offenses of the Russian Federation. An objection can be submitted after the court accepts the complaint for consideration and sends a notice to the participants in the case. To prepare an objection, it is allowed to familiarize yourself with both the complaint and the materials of the administrative case in general. This can be done at the court office. To navigate the deadlines for filing an objection, you need to take into account the deadline established for an appeal. The standard period is 10 days, but for some categories of administrative offenses it may be less. The objection must be sent to the court of appeal, which accepted the complaint for consideration.
In criminal proceedings, the procedure for filing objections is regulated by Art. 389.7 Code of Criminal Procedure of the Russian Federation. Everything happens almost the same as in administrative matters. But only in this case the court sends out not only notices, but also copies of the complaint (prosecutor’s protest), and also sets a specific deadline for preparing and submitting a written objection. In addition, the objection must be sent to the court whose decision (sentence) is being appealed. The document will be attached to the materials of the criminal case and sent along with the complaint for consideration by the appellate authority.
What is an appeal?
An appeal is a procedural form of documentation that allows you to challenge an unlawful court decision that has not entered into legal force. Any participant in the process - the accused, the victim, the prosecutor and other persons participating in the case - has the right to draw up such a complaint. At the same time, other citizens who are not related to the case can also act as appellants, if a judicial act on such authority was adopted earlier.
In procedural law there are 2 types of appeal:
- Full. In this case, the case is reviewed from the very beginning and on its merits.
- Incomplete. This procedure involves checking the court decision of the 1st instance for its validity and legality.
How to appeal a court decision
It happens that the judge made a decision that did not sufficiently satisfy our claims, or this decision was not at all in our favor. One way or another, we do not agree with the decision made and want it to be changed or canceled and a different decision on the case made. To do this, we need to appeal this court decision to a higher court before the court decision enters into legal force. If you don't know when a court decision comes into force, find out in this article.
What does it mean to appeal a court decision? This means filing an appeal to a higher (appeal) court against a court decision with which you do not agree.
A “court of appeal” or “court of appeal” is a court of second instance.
Deadlines for appeal
Court decisions do not take effect immediately after they are issued. The legislation gives time to appeal them - a month from the date of the court decision (Article 321 of the Code of Civil Procedure of the Russian Federation). There is an exception: decisions in cases of administrative violations are contested within a short period of time - 10 days. If the deadlines for an appeal are missed, they can be restored by filing an appeal by the interested party indicating a valid reason for this omission (Article 112 of the Code of Civil Procedure of the Russian Federation). In order to file this petition, it is necessary to meet the deadline within 6 months from the date of the verdict.
Important!
The completed appeals are submitted to the judicial body that made the final decision in the first instance. Then, within 3 days, the appeal along with the case is sent to a higher judicial body, which will examine it.
Appeal in criminal cases
Appealing a court decision in criminal cases within the framework of the appellate process allows not only to appeal the verdict, but also, in some cases, to completely acquit the defendant.
The right of appeal in criminal cases is enshrined in Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation.
Unlike other types of judicial process, during criminal proceedings, not a court decision is made, but a sentence. In accordance with Art. 389.4 of the Code of Criminal Procedure of the Russian Federation, you can appeal the verdict within 10 days from the date of its official announcement. Convicts who were in custody at the time of the verdict may file an appeal within 10 days from the date of delivery of a copy of the verdict. If the deadlines were violated, the law provides for the possibility of their restoration. To exercise this right, it is necessary to provide evidence that confirms the existence of valid reasons for non-compliance with criminal procedural norms.
An appeal against a decision in criminal cases involves the study and careful verification of newly discovered evidence. During the judicial review of the complaint, the testimony of new witnesses will be taken into account.
Filing an objection: right or obligation?
Please note: after the second party submits the appeal process, you are asked to write an objection, and are not forced to do so. In other words, if you are sure that you are right and that an appeal will not help the other party to insist on its position, you can calmly wait and not take any action.
However, lawyers who professionally perform their duties and have extensive experience in conducting legal cases still recommend writing such a review. When the appeal itself is considered, then if there is an objection to it, it will be much easier for the executive bodies to form their opinion about the problem presented and compare all the facts in the case.
Rules for writing an objection
An example of exactly how to write a response to a filed appeal can be found in the legal literature. It is not at all necessary to follow the example found, since the Law does not specify a single form in which an objection must be drawn up. The main thing is to ensure that the required elements are present:
- Name of the court.
- Details of the applicant.
- A court decision that is being appealed.
- Details of the case in which the verdict was passed.
- The name of the document itself.
- A reasoned explanation of why the court decision does not make sense to review, and the appeal filed should be rejected.
- Additional documents related to the case (optional).
- Date of filing the objection.
- Signature of the person filing the objection and its transcript.
The first 4 items from the list are located in the upper right corner of the sheet, the name is in the center, then the text across the entire width of the sheet and at the end - the date on the left, signature with a transcript on the right.
When describing the situation, you need to do it in such a way that the court representative has an opinion of the applicant as a legally competent person. An additional advantage will be the mention of norms, articles of laws, etc.
