§ 3. Powers of the court of second instance
1. General provisions 2. Cancellation of the decision with the referral of the case for a new trial 3. Cancellation of the decision with termination of proceedings in the case 4. Changing the decision or issuing a new decision
1. General Provisions
Under the powers of the cassation court in the sense of Art. 361 of the Code of Civil Procedure refers to the rights by virtue of which it determines the further procedural state of the case. Having considered the case, this court may: - leave the decision of the court of first instance unchanged, and the cassation appeal or presentation not satisfied; - cancel the decision of the court of first instance in whole or in part and send the case for a new trial to the court of first instance with the same or a different composition of judges, if the violations committed by the court of first instance cannot be corrected by the court of cassation; - change or cancel the decision of the court of first instance and make a new decision, without transferring the case for a new trial, if circumstances relevant to the case are established on the basis of existing and additionally presented evidence; - cancel the decision of the court of first instance in whole or in part and terminate the proceedings in the case or leave the application without consideration. The content of these powers of the court of second instance is as follows. The majority of appealed or protested decisions are left unchanged by the cassation authority. This is explained by the fact that judges in our country are appointed by people who have the necessary special knowledge, life experience and a sense of high responsibility to society. As a rule, the court of first instance makes decisions that meet all the basic requirements for these most important acts of justice, and there are no grounds for their cancellation or change. But still, the objectively existing complexity in regulating legal relations does not allow us to completely exclude the possibility of errors, therefore cassation courts also encounter cases in which it is impossible to leave the decision unchanged.
2. Cancellation of the decision and referral of the case for a new trial
The decision is canceled and the case is sent for a new trial to the court of first instance on the grounds specified in the law (Articles 362-364 of the Code of Civil Procedure).
These include: 1) incorrect determination of circumstances relevant to the case; 2) failure to prove the circumstances relevant to the case established by the court of first instance; 3) discrepancy between the conclusions of the court of first instance, set out in the court decision, and the circumstances of the case; 4) violation or incorrect application of substantive law or procedural law. A decision of the court of first instance that is essentially correct cannot be overturned for formal reasons alone. Violation of substantive law can be expressed: - in the application of a law that is not subject to application; - failure to apply the law to be applied; - misinterpretation of the law. As for violations of procedural law, they are divided into three groups according to the degree of significance: 1) a formal violation that does not constitute a reason to cancel the appealed decision, which is essentially correct (Article 364 of the Code of Civil Procedure); 2) a significant violation that led or, judging by the case materials, could lead to an incorrect resolution of the case (Article 364 of the Code of Civil Procedure). The difficulty here is that the incorrect application of the same procedural rule, depending on specific conditions, can be either significant or formal. The cassation court must accurately assess this point; 3) a violation that constitutes a reason for the unconditional reversal of the decision, regardless of the correctness of the resolution of the case on the merits. According to Art. 364 of the Code of Civil Procedure, the decision is subject to unconditional cancellation if: 1) the case was considered by the court in an illegal composition; 2) the case was considered by the court in the absence of any of the persons participating in the case and not notified of the time and place of the court hearing; 3) during the consideration of the case, the rules regarding the language in which judicial proceedings are conducted were violated; 4) the court resolved the issue of the rights and obligations of persons not involved in the case; 5) the court decision is not signed by the judge or any of the judges, or the court decision is signed by the wrong judge or judges indicated in the court decision; 6) the court decision was made by judges other than those who were part of the court hearing the case; 7) there is no protocol of the court session in the case; When making a court decision, the rules on the secrecy of meetings of judges were violated. In case of violation of substantive law, the need to cancel may sometimes concern not the entire decision, but only a certain part of it. When partially overturning a decision, a higher court must exercise maximum caution, bearing in mind that different approaches can be taken to assessing only those parts of a single decision that are not in close legal and logical relationship. An erroneous answer by the court to one of the closely related questions causes not a partial, but a complete reversal of the decision. As a result of the reversal of the decision, the case is sent for a new trial to the court of first instance. The retrial of the case is entrusted to the court with a new or previous composition of judges. You should also keep in mind the explanation of paragraph 18 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 20, 2003 No. 2 “On some issues that arose in connection with the adoption and entry into force of the Civil Procedure Code of the Russian Federation.” By virtue of Art. 361 of the Code of Civil Procedure, the court of cassation, having canceled the decision of the court of first instance in whole or in part, has the right to send the case for a new trial to the court of first instance if the violations committed by it cannot be eliminated by the court of cassation. Based on this, when sending a case for a new trial to the court of first instance, the ruling of the cassation court must contain the reasons why it does not have the opportunity to make a new decision or change the decision of the court of first instance.
3. Cancellation of the decision with termination of the proceedings
Cancellation of the decision with termination of the proceedings or leaving the application without consideration is carried out on the grounds provided for in Art. 365 Code of Civil Procedure. In other words, termination of proceedings in a civil claim and leaving the application without consideration by a higher court is practically no different from a similar procedural action by the court of first instance. The only difference is that the higher court applies this form of ending a civil case in mandatory combination with the cancellation of the appealed or protested decision and is therefore obliged, in appropriate cases, to discuss the issue of reversing the execution of the decision. It also has a peculiarity that the proceedings are terminated in connection with the acceptance of the plaintiff’s refusal of the claim or the approval of a settlement agreement between the parties. The fact is that in the second instance there is no record of the court hearing, therefore the plaintiff’s statement of abandonment of the claim, as well as the settlement agreement of the parties, must be submitted by the cassation instance in writing. After the decision is cancelled, the proceedings are terminated or the application is left without consideration, the case is returned as appropriate to the court that made the decision.
4. Changing the decision or making a new decision
Changing the appealed decision and issuing a new decision by a higher court are, in essence, different powers, despite the fact that the possibility of their implementation is made by the legislator dependent on one general condition: “... if the circumstances relevant to the case are established on the basis of existing ones, and also additionally presented evidence” (Article 361 of the Code of Civil Procedure). The decision is changed when the dispute is essentially resolved correctly, but certain clarifications and amendments need to be made. The new decision means a fundamentally different substantive legal resolution of the dispute. It is issued when the error of the lower court in applying the rules of substantive law is so significant that to eliminate it requires not a change, but a replacement of the appealed decision. By changing the decision, a higher authority most often clarifies the amount to be recovered from the defendant, adjusts the period during which periodic payments must be made, changes the form of liability of the debtors, using joint and several instead of shared and, conversely, shared instead of joint, etc. The possibility of making a new decision is one of the main features of the Russian cassation system. Using it, the higher court, without infringing on the procedural rights of the persons participating in the case, ensures the correct and fastest final resolution of the dispute. This power is used quite widely by cassation courts. It acts as an effective remedy against harmful formalism and red tape, thereby contributing to the successful solution of common problems of civil proceedings. If there are necessary grounds, the higher court not only has the right, but is also obliged to change the decision or make a new decision in the case. When changing the decision or making a new decision, the court of second instance is obliged to accordingly change the distribution of legal costs (Article 98 of the Code of Civil Procedure) and, if necessary, discuss the issue of reversing the execution of the decision (Article 445 of the Code of Civil Procedure).
The essence and forms of proceedings in the court of second instance
Definition 1
Proceedings in a court of second instance are legal activities to appeal and challenge court decisions that have not entered into legal force.
Sentences and other decisions of the courts of first instance that have not entered into legal force can be appealed by interested parties and reviewed by higher courts in appeal or cassation.
In the appellate procedure, decisions of magistrates that have not entered into legal force are appealed. Decisions of the federal courts of the district, regional and Supreme Courts of the Russian Federation are appealed in cassation.
The main difference between the appellate and cassation procedures for challenging court decisions is that the Court of Appeal has the right to review the grounds for considering the case. The court may review the evidence (re-examine witnesses, victims, accused, etc.) and order a new trial in the case.
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In the cassation procedure, the criminal issue itself is not fundamentally considered. The cassation court, as a rule, does not take into account new evidence on a specific issue, problem, complaint, but only takes into account the materials of the case and, on their basis, draws conclusions regarding the legality and validity of the contested decision (the decision itself can be confirmed, changed or cancelled). In the cassation procedure, it is impossible to make a new repeated decision on a specific case.
Thus, the main part of cassation proceedings is the verification by a higher court of the legality, validity and fairness of penalties and other court decisions that have not entered into legal force, based on a complaint from a participant in the process or on the proposal of a prosecutor.
The complaint, as well as cassation control over the legality and validity of court decisions, are designed to identify and eliminate court errors even before the court decision enters into legal force, which is the most important point in managing the course of justice, observing human rights and the legitimate interests of the participants in the process. In addition, through appealing and reviewing cassation decisions of lower courts, the procedural direction of their activities is ensured by higher courts.
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