Example of appellate complaints. State duty for appeal
There is an opinion that civil litigation -indicator of the maturity of society. It shows that people prefer to resolve disputes by legal means. Appeal is the most important component of this phenomenon, and it has a number of peculiarities, starting from drawing up documents and ending with the choice of a lawyer who is able to represent his client's interests qualitatively.
Briefly about the appeal process
According to the laws of Russia, any court decisions maybe protested. There are two types of implementation of this action. First, it is a cassation. Secondly, it is an appeal to the higher court, where the case is reviewed repeatedly. Disagreement with the judge may express the parties to the dispute (plaintiff, defendant or their representatives) or statutory third parties.
A document with all the severity of the law
Strict forms regulating howan appeal is filed, none of the existing laws of Russia is provided. However, in forensic practice there are certain guidelines that allow you to draw up such documents correctly. Let's consider a very simple example. Appeal complaints about him, of course, should not be, but he will make it clear what the main points of appeal to the court should be. So, here's an example sample:
- First of all, we indicate the addressee of the document (to the magistrate with the number of the plot).
- Then, we identify ourselves (from whom: full name of plaintiff or defendant).
- Next, we fix the type of the submitted document (appeal).
- The next item is an explanation of the reason, that iswhy the paper is fed. For example: "A number of the judge of the site (number) was pronounced in favor of the defendant (plaintiff)." I do not agree with the decision ".
- Next, we explain what the grounds for this are.
- Finally, the appeal directly to the judge: "I ask the decision of the judge of the first instance (magistrate) to cancel".
Specificity of civil cases
Civil Appeals Appealdiffers from similar procedures in criminal trials. The most important component of the plaintiff's work (or his lawyer) is the fulfillment of the requirements of the law in accordance with procedural norms.
If this does not happen, then the court with a highprobability of returning an appeal to the applicant. As a result, a civilian who has submitted a document that does not comply with the law may even lose the right to have the case examined by a court of second instance. Civil proceedings differ in that in many cases it is simply impossible to foresee a judicial decision (unlike, say, criminal trials, when evidence is usually collected by the time of trial).
Role of the judge
The representatives of justice require a verya deep assessment of the facts submitted by the parties to the hearing, the consideration of the opinion and arguments of the lawyer. Many lawyers believe that the appeal in civil cases is very promising for the losing side, precisely because of the initial unpredictability of the court decision.
If in the first instance the judge decided so, thenit is quite possible that his colleague will wish to express a different opinion during the appeal. An appellate complaint in a civil case may unfold the process of judicial settlement of a dispute in a completely diametrical manner.
The Role of a Lawyer
In the course of civil casesit is very likely that the judge will make a decision that none of the parties to the dispute accepts, but in many cases this happens not without the influence of the lawyer. The role of the lawyer is very high at each stage of the hearing: a trial court hearing, filing an appeal, collecting the case materials. Some lawyers believe that the percentage of lost legal disputes due to unqualified lawyers is large enough.
It is very important, experts believe, to have a person,capable of correctly correlating actual circumstances with current judicial practice. It is also very important the ability of an attorney to compose documents correctly. One can give an example: Appeal complaints, drawn up with elementary errors in the text, judicial practice knows a lot. It is not uncommon for a judge to make a decision in favor of the party that managed to reconcile the evidence presented on paper to the letter, while opponents (or, more accurately, their lawyers) treated the documents with disdain.
Grounds for appeal
According to the law, an appeal against a decisionThe court may be submitted if there are substantial grounds for this, of course, in the opinion of the plaintiff or the defendant. We list the main ones. This may be a wrong, incorrect definition of significant circumstances for the case. Also, the court of first instance can use unproven facts that may influence the decision made by it. Another reason is that the judge was not able to ensure that his conclusions corresponded to the actual circumstances of the case in question.
Another reason whyan appeal against the decision of the court, the first instance failed to apply correctly the norms of procedural and substantive law, which led to the adoption of an unfair decision. The listed grounds for appeal, although there are a few, can be very capacious in content. There are, by the way, legal norms, according to which the decision of the first court is abolished unconditionally. This is, firstly, the consideration of the case in the illegal acquisition of the composition of the court (including the situation when someone from the relevant case is absent). Secondly, the court decision is canceled if the interests of persons who were not brought to trial have been affected. Thirdly, if the documents were signed by a representative of justice incorrectly, the result of the meeting is also annulled. Fourthly, if the judge has avoided the obligation to make a decision within the advisory room, then this is also the basis for unconditional recognition of his actions as illegal.
Which court to appeal to?
The Civil Procedure Code of the Russian Federation states thatAppeals regarding the decisions of justices of the peace should be considered by district (in some regions - by city) courts. In turn, if at this level the plaintiffs or defendants were not satisfied with the results of the hearings, the case may be referred to the courts of the subjects of the federation (for example, regional).
If the decision of the judge of this instance is not againwill suit one of the parties to the dispute, the case is referred to the Supreme Court. The appeal itself is submitted to a higher court through the structures of the first instance, which, according to the law, itself handles the case along with all the attached materials.
The correctness of the dates is important
Any lawyer knows that the first step to success withlitigation - the time. Appeals must be filed on time. According to the Civil Procedure Code of the Russian Federation, the plaintiff or defendant who does not agree with the decision of the court of first instance has a month to draw up a document expressing a position different from the judge's opinion. An important nuance is that by the time of filing you need to have a receipt stating that the state duty for the appeal has already been paid. Speaking about the timeframe for which the plaintiff should pay attention, time intervals should also be designated, which are also reserved for the court. The CCP RF determines that the district courts (as well as institutions in the constituent entities) should consider appeals within two months (from the moment of adoption of the documents). The Supreme Court has 30 days more time.
What to expect from an appeal?
After the hearing in the court of second instancethe plaintiff has the right to expect one of the following scenarios. First, the decision of the previous judge can be left unchanged, accordingly, the complaint will remain unsatisfied. Secondly, the court of second instance can cancel or change the expression of the vision of the situation of their colleagues in the first. Thirdly, the judge, considering the appeal, has the right to refuse to consider the application (in whole or in part). The court of second instance after the hearings passes a definition, which enters into force on the same day.
Further, depending on how much the solutionthe judge will arrange the plaintiff or the defendant, an appeal may be made to the court level higher. How can a plaintiff increase the likelihood of a positive outcome of a hearing? Many lawyers believe that correctness is the basis of success. There is not one example of appeal appeals, when the texture of the statement of arguments by the party that expressed disagreement with the decision of the court of first instance could not withstand any criticism.
Objections - accepted
There is such a phenomenon as a response to the appealcomplaint. Another language is the objection that one side of the other sets out. The losing party often disagrees with the decision made by the court (which, in fact, is the reason for the appeal), up to the point that it considers it incompatible with the law. The winning party, in turn, can formulate strong, in its opinion, objections to the complaint lodged by the opponents in a court of higher instance. It is possible that the arguments presented by the losing party are seen by their counterparts as completely invented. This, however, is a very revealing example: Appeal complaints based on the false belief of the parties in the presence of any facts, of course, the legal practice knows a lot. Actual circumstances, however, sometimes open only during hearings. A response to the appeal can be sent by mail, passed through the documents of the court, and also, which is also practiced, submit directly to the meeting. However, this mechanism is fair in relation to civil cases. If it is an arbitration process, the response must be sent by registered mail with a notification.