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Consideration of the case by the appellate court. Resolution of the Plenum of the Armed Forces on the applications of the courts of civil procedural legislation regulating the production in the Court of Appeal - Russian newspaper to consider on the rules of the first

Legislation
01.08.2020

New edition of Art. 327 Code of Civil Procedure of the Russian Federation

1. The appellate court informs those who participate in the case, about the time and place of consideration of the complaint, submission to appeal.

The appellate court re-examines the case in court session According to the rules of production in the court of first instance, taking into account the peculiarities provided for in this Chapter.

Persons involved in the case, their representatives, as well as witnesses, experts, specialists, translators are allowed to participate in the court session by using video conferencing systems in the manner established by Article 155.1 of this Code.

Cases in the courts of appeal, with the exception of district courts, are considered collegially.

2. The session of the court of appeal is discovered by the judge - the chairman who announces which the case is considered, on whose appeal, the presentation is subject to consideration and the decision of which court is filed with these complaint, the presentation, finds out who among those involved in the case, their representatives appeared, sets the identity of the appeared, checks the powers officials, their representatives and explains to persons participating in the case, their procedural rights and obligations.

The consideration of the case in the court of appeal is collegially begins with the report of the judge chairman or one of the judges. The judge-rapporteur sets out the circumstances of the case, the content of the decision of the court of first instance, the arguments of appeals, submissions and admitted about them the objections, the contents of new evidence submitted to the court, and also report other data that the Court must be considered to verify the decision of the court of first instance.

3. After the report, the Court of Appeal hears the explanations of the persons participating in the case, their representatives. The first is a person who has submitted an appeal, or his representative or a prosecutor if the appeal representation is brought. In case of appealing the decision of the court, both parties are the first plaintiff.

After the explanations of the person who submitted the appeal, or the prosecutor, if they were brought by the appeal presentation, and other persons participating in the case, their representatives of the appellate court, if there are appropriate applications, the evidence existing in the case, after which proceeds to the study of the new evidence taken by the court.

4. At the end of the clarification of the circumstances of the case and research evidence, the appellate court provides persons participating in the case, the opportunity to speak in judicial debates in the same sequence in which they gave explanations.

5. In each court session of the court of appeal, as well as during the commission of individual procedural actions outside the court session, the Protocol under the rules provided for by Chapter 21 of this Code.

6. In court, the appellate instance does not apply the rules on the connection and separation of several claims, about changing the subject or reason of the claim, about changing the amount of claims, about the presentation of a counterclaim, about replacing the inappropriate defendant, about attracting third parties to participate in the case.

Commentary on Article 327 Code of Civil Procedure of the Russian Federation

1. Article 327 of the Code of Civil Procedure of the Russian Federation defines the creature of the appeal method of revising the decision. Consideration of the case is carried out according to the rules of production in the court of first instance, although it is reused, which means the proceedings of the case in the same amount of requirements, with the same composition of persons. The features of the appellate production aimed at checking the already existing court decision provide for certain restrictions on the consideration of the case. In the appellate instance, it is not allowed to declare new requirements, including to make a counterclaim, change the basis or subject of claim, change the amount of claims, to connect several requirements into one production or to allocate the requirement in separate production, attract third parties to participate in the case, replace the inappropriate defendant. Assumption in the appellate instance of third parties not claiming independent requirements Regarding the subject of the dispute, the CS of the Russian Federation is recognized as legitimate (see the definition of the CS of the Russian Federation of 04.04.2006 N 99-O).

Persons involved in the case should be in a timely manner and properly notified about the time and place of consideration of the case. If they have good reasonsIn accordance with which they cannot attend the court hearing, then this should be notified of the court, which is entitled to postpone the court session in accordance with. If the appeal filed a person in the case not participating, but the material rights of which are affected by a court decision, then this person must also be notified of the time and place of consideration of the case. Code of Civil Procedure of the Russian Federation does not indicate the acquired procedural status of this person, however, by analogy with Art. 42 AIC should be recognized by such participants who participate in the case, with its appeal of the appellate instance.

In accordance with Art. 7 Code of Civil Procedure of the Russian Federation Civil cases in the courts of appeal, except in cases provided for by Part 3 of Art. The 7 Code of Civil Procedure of the Russian Federation is considered collegial as part of the judge chartering and two judges, but cases on complaints about judicial decisions of world judges who have not entered into legal force are considered as an appeal order individually by the judges of the relevant district courts (part 3 of Art. 7). It seems that such differences do not correspond to the principle of equality before the court and law. The parties whose cases were considered by the magistrates on the first instance are doomed to the secondary sole consideration of the case on appeal. However, on modern stage The structure of district courts and the quantitative composition of their judicial corps do not allow to introduce a collegial composition of the court for the appellate instance.

2. The session of the court of appeal is carried out according to the main rules for holding the court session of the court of first instance. However, given that the appellate instance makes an inspection of the decision, the court session opens the judgment of the judge-chair (when checking the decision of the magistrate in the district court) or the judge-rapporteur under the collegial consideration of the case in the courts of constituent entities of the Russian Federation and the Russian Armed Forces, which announces what business and Which initiative is considered, the decision of the court is appealed, the appeal of those involved in the case of persons, their representatives is checked, since the appeal is considered by the appeal with the notice of those who participate in the case of persons, the personality of their representatives are being checked. In addition, the judge explains to persons participating in the case, their procedural rights and obligations. Then the arguments of appeals, submission and admitted objections, the content of new evidence submitted to the court, and also report other data that should be considered to verify the decision of the court of first instance.

3. on next Stage The court session heard the explanations of those who participated in the case of the individuals and their representatives. By general rule The first person performs a person, initiated production in the appeal of the application of the appeal, or his representative or a prosecutor if they were brought by an appeal view. When appealsing the decision of the court, both parties are the first plaintiff.

The received applications available in the evidence are announced. After that, a study of the new evidence adopted by the court is carried out, if any.

4. After completing the clarification of the circumstances of the case and the study of evidence to persons participating in the case, it is given the opportunity to speak in judicial debates in the same sequence in which they gave explanations.

5. The appellate instance is the last judicial instance, which provides for the conduct of the minutes of the court session and the commission of certain procedural actions outside the court session. The rules for maintaining the minutes of the court session for the first and appeal instances are common. However, in the minutes of the court session of the appellate instance, it seems necessary to especially carefully record the information contained in the explanations of the persons participating in the case, the testimony of witnesses that are absent in the case file. Information recorded in the first time trial judicial instanceis usually not reproduced in the appeal protocol.

6. The court of appeal is considering the case under the rules established for the court of first instance, for some seizures that are caused by a procedural task in comparison with the first instance court: not resolving the statement on the merits, but a verification of the decision of the first instance of the decision, which is formulated Its conclusions, including relatively stated requirements, with respect to the participating circle of persons. By virtue of this, the appellate court does not apply the rules on the connection and separation of several requirements, about changing the subject or reason for the claim, about changing the amount of claims, about the presentation of a counterclaim, about replacing the improper respondent, about attracting third parties to participate.

Another comment to Art. 327 Civil Procedure Code of the Russian Federation

1. Appeal production is initiated from the moment of entering the Dage Court of the case with the appeal, submission and attached documents.

The court who accepted the appeal (presentation) appoints the day of the court session, the time and place of consideration of the case and informs all the persons participating in the case.

The appellate instance has the same rules of production as in the court of first instance.

2. You should pay attention to some features. So, judge district Court, considering the appeal, representation and being the court of a second instance, does not just re-examines and allows the case, but checks the activities of the magistrate, the legality and validity of the decision made by the Justice.

The legislator does not give parties the ability to include in the appeal of the requirements not declared by the Judge. This means that the plaintiff cannot change the basis or subject of the claim, and the defendant - to declare a new counter demand At this stage of the process.

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order, deadlines, limits, powers

21. Courts need to be borne in mind that, within a sense of article 327 of the Code of Civil Procedure of the Russian Federation, the re-consideration of the case in the court of appeal implies the verification and evaluation of the actual circumstances of the case and their legal qualifications within the arguments of appeals, submission and within the framework of the requirements that were already subject to consideration in court of first instance.

New substantive requirements that were not subject to consideration in the court of first instance, in accordance with Part 4 of Article 327.1 of the Code of Civil Procedure of the Russian Federation, are not accepted and are not considered by the appellate court (for example, the requirement for compensation for moral damage).

Part 4 of Article 327.1 parts 4 and 5 of Article 330 Chapter 39 Code of Civil Procedure of the Russian Federation.

22. In the meaning of part 1 of article 327 of the Code of Civil Procedure of the Russian Federation, with a re-examination of the case by the appellate court according to the rules of production in the court of first instance, including taking into account the features provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation apply, in particular, the rules for judicial orders (GPC RF), rules on court expenditures (chapter 7 of the Code of Civil Procedure of the Russian Federation), rules for court notices and challenges (chapter 10 of the Code of Civil Procedure of the Russian Federation), the rules for ensuring the claim (chapter 13 of the Code of Civil Procedure of the Russian Federation), the rules on the preparation of the case for the judicial proceedings (chapter 14 of the Code of Civil Procedure of the Russian Federation ), the rules for the permission of petitions of persons participating in the case (Code of Civil Procedure of the Russian Federation), deposit rules judicial trial (Code of Civil Procedure of the Russian Federation), Rules of research and evaluation of evidence (Chapter 6 and Article 175 - Code of Civil Procedure of the Russian Federation), Rules for the announcement of the decision of the Court (Code of Civil Procedure of the Russian Federation), the rules for the decision of the Court (part 2, 3 of Article 194 of the Code of Civil Procedure of the Russian Federation), the rules on the compilation A motivated decision of the court (Code of Civil Procedure of the Russian Federation), the rules on the suspension of the proceedings (chapter 17 of the Code of Civil Procedure of the Russian Federation) and the termination of the proceedings (chapter 18 of the Code of Civil Procedure of the Russian Federation), the rules for leaving the statement without consideration (paragraphs of the second - sixth of article 222 of the Code of Civil Procedure of the Russian Federation); The rules for maintaining the Protocol (chapter 21 of the Code of Civil Procedure of the Russian Federation).

To draw the attention of the appellate courts to the fact that due to part 5 of article 327 of the Code of Civil Procedure of the Russian Federation during each court session of the appellate court, as well as during the commission of individual procedural actions outside the court session, the Protocol under the rules provided for by Chapter 21 of the Code of Civil Procedure of the Russian Federation.

It should be borne in mind that in the court of appeal instance due to part 6 of Article 327 of the Code of Civil Procedure of the Russian Federation, the rules on the connection and separation of several claims, changing the subject or the basis of the claim and the amount of claims, presenting a counterclaim, replacing the improper respondent and attracting participation In the case of third parties.

At the same time, the limitations provided for by part 6 of Article 327 of the Code of Civil Procedure of the Russian Federation do not apply to cases where the court of appeal in accordance with Parts 4 and 5 of Article 330 of the Code of Civil Procedure of the Russian Federation proceeds to the consideration of the case on the rules of production in the court of first instance without taking into account the features provided for by the chapter 39 Code of Civil Procedure of the Russian Federation.

23. If the court of appeal when considering the case, taking into account the peculiarities provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation, will establish that the court of first instance is illegally refused to satisfy the application of the person claimed in accordance with Article 39 of the Code of Code of the Russian Federation to change the subject or reason for the claim, increasing (decreasing) The amount of claims or considered statement of claim Excluding the stated changes, which was indicated in the appeal, representation, the court of appeal in accordance with paragraph of the second part 1 of Article 327 and part 2 of Article 327.1 of the Code of Civil Procedure of the Russian Federation considers the case, taking into account the wrongful disadvantaged or previously stated and non-represented petition for the subject of the subject or the basis of the claim, increasing (decreasing) the size of the claim based on the features provided for by Chapter 39 Code of Civil Procedure of the Russian Federation.

24. In accordance with Parts 1, 2 of Article 327.1 Code of Civil Procedure of the Russian Federation, the court of appeal checks the legality and validity of the court order of the court of first instance only in the applied part on the basis of the arguments set out in the appeal, representation and objections regarding them.

At the same time, the court of appeal on the basis of paragraph of the second part 2 of Article 327.1 of the Code of Civil Procedure of the Russian Federation has the right to check the contested judicial order In full, going beyond the limits of the requirements set forth in the appeal, representation, and without communicating themselves with the arguments of complaints, submission.

Courts of appeals instance should be proceeding from the fact that under the interests of legality, taking into account the provisions of Article 2 of the Code of Civil Procedure of the Russian Federation, it should be understood that the need to verify the correct application by the court of first instance of the norms of material and procedural law In order to protect disturbed or disputed rights, freedoms and legitimate interests of participants in civil, labor (service) and other legal relations, as well as in order to protect family, motherhood, paternity, childhood; social protection; ensuring the right to housing; health care; ensuring the right to favorable environment; protection of the right to education and other human rights and freedoms and citizen; In order to protect the rights and legitimate interests of an indefinite circle of persons and public interests and in other cases of the need to hide the law and order.

The courts of appeal must be borne in mind that the interests of legality are not responsible, in particular, the application of the first instance of the norms of material and procedural law with violation of the rules of action of laws in time, space and in the circle of persons.

If the appellate court came to the conclusion about the need to check the appealed judicial decision of the court of first instance in full, the appellate definition in accordance with paragraph 6 of Part 2 of Article 329 of the Code of Civil Procedure of the Russian Federation should contain motives for which the appellate court came to this conclusion.

25. Regardless of the arguments contained in the appeal, submission, the court of appeal, when considering the case, the existence of the provisions provided for by paragraph 4 of article 330 of the Code of Code of Certificate of unconditional grounds for cancellation of the court decision of the court of first instance, as well as grounds for termination of the proceedings (GPC RF) or leaving the application without consideration (paragraphs of the second - sixth article 222 of the Code of Civil Procedure of the Russian Federation).

26. Based on the need to comply with Article 6, paragraph 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms of the Applicant's right to a fair trial, the court of appeal cannot refuse to adopt addresses to the appeal, representation containing new arguments (judgments) regarding the requirements, The presentations set forth in the appeal, submission, as well as additions to the appeal, the submission containing the requirements other than the requirements previously set out in the appeal, representation (for example, appealed not to the previously appealed part of the judicial decree). However, when adopting such additions to the appeal, the submission of the appeal court is necessary, taking into account the opinion of those involved in the case and present at the court session, discuss the possibility of consideration of appeals, submission in this court session.

27. In the case of a failure to appeal to the appellate instance of persons properly notified of the time and place of consideration of appeals, submission, the question of the possibility of conducting a trial in the absence of such persons is solved by the court of appeal, taking into account the provisions of Article 167 of the Code of Civil Procedure of the Russian Federation.

The court of appeal is entitled to consider the case on the appeal, the presentation in the absence of persons participating in the case, if, in violation of part 1 of article 167 of the Code of Civil Procedure of the Russian Federation, such persons did not inform the appellate court about the reasons for their non-appearance and did not provide evidence of respect for these reasons or if the reasons recognize their non-appearance disrespect.

In the court of appeal, when considering the case on the appeal, submitting both taking into account the features stipulated by Chapter 39 of the Code of Civil Procedure of the Russian Federation and without taking into account such features are not subject to applying the consequences of the non-appearance of persons participating in the case provided by paragraphs of the seventh and eight of Article 222 of the Code of Civil Procedure of the Russian Federation.

28. If there is a reference to additional (new) evidence, the submission of an additional (new) evidence, the reporting judge, based on the claims of the paragraph of the second part 2 of Article 327 of the Code of Civil Procedure of the Russian Federation, sets out their content and puts on the discussion on the adoption of additional (new) evidence to discuss Opinions of persons participating in the case.

In the case when the person expressed the application directly at the court session on the adoption and study of additional (new) evidence, regardless of the fact that in the appeal, it did not refer to them on them, the appellate court examines this petition, taking into account the opinion of persons Participated in the case and present at the court session and gives an assessment of the nature of the causes (respectful or disrespectful) impossibility of submitting additional (new) evidence to the court of first instance.

At the same time, taking into account the provisions of the Parties and provisions of part 1 of article 56 of the Code of Civil Procedure provided for in Article 12 of the Code of Article 56 of the Code of Code of Article 56 of the Russian Federation, the obligation to prove the presence of circumstances that led the person referring to additional (new) evidence, to submit them to the court of first instance, is assigned to this person.

In accordance with paragraph, the second part 2 of Article 327 of the Code of Civil Procedure of the Russian Federation, the court of appeal accepts additional (new) evidence if the reasons for the impossibility of submitting such evidence to the court of first instance are respectful.

Such reasons include, in particular, the unreasonable deviation by the court of first instance of the petitions of persons participating in the case, on the extermination, attachment to the case, the study of additional (new) written evidence or petitions on the call of witnesses, on the appointment of expertise, on the direction of the instruction; The decision of the decision on the refusal to satisfy the claim (statements) due to the skipping period of limitation or missing the deadline established by the Federal Law of the term of appeal without researching other actual circumstances of the case.

Additional (new) evidence cannot be accepted by the court of appeal, if it is established that the person referring to them did not submit these evidence to the court of first instance, because he had led themselves unfair and abused its procedural rights.

29. If the court of first instance is incorrectly defined by circumstances that are important for the case (paragraph 1 of part 1 of article 330 of the Code of Civil Procedure of the Russian Federation), then the court of appeal should be put on the discussion on the presentation by persons participating in the case, additional (new) evidence and, if necessary According to their petition, we assist them in collecting and exploring such evidence.

The court of appeal should also be invited to persons participating in the case, submit additional (new) evidence if in court of first instance did not prove the circumstances that are important for the case (paragraph 2 of part 1 of article 330 of the Code of Civil Procedure of the Russian Federation), including due to improper distribution Responsibilities of proof (part 2 of article 56 of the Code of Civil Procedure of the Russian Federation).

30. The adoption of additional (new) evidence in accordance with paragraph of the second part 1 of Article 327.1 of the Code of Civil Procedure of the Russian Federation is issued by making a definition, indicating the motives on which the appellate court came to the conclusion about the impossibility of submitting these evidence to the court of first instance for reasons recognized as respectful , as well as about the attribution and admissibility of evidence data.

Taking into account the provisions of articles 224 - Code of Civil Procedure of the Russian Federation, the definition of adoption of additional (new) evidence can be resolved both in the deliberation room and without removal in the advisory room by entering such a definition in the minutes of the court session.

31. In the sense of paragraph of the second part 3 of Article 327 of the Code of Civil Procedure of the Russian Federation, after an explanation of the person who submitted the appeal, or the prosecutor, which brought an appeal presentation, and other persons involved in the case, the appellate court announces the evidence in the case of the appropriate application about it Persons participating in business. In the absence of such a petition, the court of appeal can, on its initiative, to announce the evidence of their evaluations on the basis of the need for their assessment on the basis of the content of appeal arguments, submission.

The court of appeal is entitled to refuse to satisfy the petition of the person participating in the case, on the announcement of the evidence available in the case of the opinion of other persons participating in the case, arguments of appeals, submissions, the content of the court decision, the presence of a person who declared a petition, abuse of their procedural rights.

32. Court of appeals instance in court session of the Code of Code of Civil Code of the Russian Federation provided for by part 4 of article 330 of the Code of Code of Code of Execution on the basis of part 5 of article 330 of the Code of Civil Procedure of the Russian Federation, it makes a motivated definition on the transition to the case of the case on the rules of production in the court Accounting for the features stipulated by Chapter 39 of the Code of Civil Procedure of the Russian Federation, which the appealed judicial decision of the court of first instance is not canceled. At the same time, the definition of the transition to the consideration of the case on the rules of production in the court of first instance without taking into account the features stipulated by Chapter 39 of the Code of Civil Procedure of the Russian Federation, the appeal is not subject to.

If the appellate court recognizes the case prepared on the basis of the completeness and adequacy of the evidence collected in the case, confirming the circumstances that are important for the case, as well as taking into account the opinion of the persons present at the court hearing about the possibility of continuing to consider the case in the same court hearing, it has the right to The same court session to consider the case on the rules of production in the court of first instance without taking into account the features provided for by Chapter 39 Code of Civil Procedure of the Russian Federation.

If necessary, the commission of individual preparatory actions (for example, witnesses call, to assist persons participating in the case, in collecting and exercising evidence, the appointment of expertise, the directions of the judicial assignment, etc.) of the appellate court in the definition of the transition to the case of the case The rules of production in the court of first instance without taking into account the features stipulated by Chapter 39 of the Code of Civil Procedure of the Russian Federation, or in accordance with Article 147 of the Code of Civil Procedure of the Russian Federation, in a separate definition of the preparation of a case on a trial indicates which actions should be made by persons participating in the case, and for what time. Depending on the volume, nature and duration of the preparatory actions, the new date and time of the trial can be defined as in the definition of the transition to the consideration of the case on the rules of production in the court of first instance without taking into account the features provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation and in a separate definition of Appointment of case for legal proceedings.

33. In order to make a legitimate and reasonable judicial regulation in the case of the appellate court on the basis of part 5 of article 330, the head of 39 Code of Civil Procedure of the Russian Federation is subject to adoption, research and evaluation, all attributable and permissible evidence, regardless of the reasons for their failure to submit to the court of first instance.

34. In accordance with Parts 1 and 2 of Article 327.2 of the Code of Civil Procedure of the Russian Federation, district, regional and equal courts are obliged to consider the case on the appeal, representation on time not exceeding two months, and the Supreme Court Russian Federation - in a period not exceeding three months from the date of receipt of the case in the court of appeal.

To draw the attention of the courts to the fact that in accordance with Part 3 of Article 327.2 of the Code of Civil Procedure of the Russian Federation, the abbreviated period of consideration of appeals, representations on special categories Affairs can be established both Civil Code of the Russian Federation and other federal laws (for example, in cases of violation elective law and the right to participate in the referendum of citizens of the Russian Federation).

35. In the case of the transfer of the appellate court on the basis of part 5 of article 330 of the Code of Code of Civil Procedure of the Russian Federation, the case should be considered within the deadlines specified in Article 327.2 of the Code of Civil Procedure of Article 330 of the Code of Code of the Russian Federation. The terms of consideration of the case in the court of appeal is not subject to extension.

36. It should be borne in mind that when the appeal is canceled by the court on the results of the consideration of appeals, the submission of the decision of the court of first instance on the grounds, provided for by paragraph 1 of Article 330 of the Code of Civil Procedure of the Russian Federation, in accordance with the provisions of Article 328 of the Code of Civil Procedure of the Russian Federation, the direction of the case for a new consideration of the court First instance is not allowed. In this case, the court of appeal will receive a new decision on the case.

When establishing violations of the norms of the procedural law specified in part 4 of article 330 of the Code of Civil Procedure of the Russian Federation, the court of appeal on the basis of part 5 of Article 330 of the Code of Civil Procedure of the Russian Federation proceeds to the consideration of the case on the rules of production in the court of first instance without taking into account the features stipulated by Chapter 39 Code of Civil Procedure of the Russian Federation.

When applying the provisions of paragraph 1 of part 4 of article 330 of the Code of Civil Procedure of the Russian Federation, the courts of appeal must be taken into account that the case is recognized by the court considered in the illegal composition when, for example, the case is considered by the person who did not endow the authority of the judge; The judge was to be dispersed on the grounds provided for in paragraphs 1, 2 of Part 1 and part 2 of Article 16 of the Code of Civil Procedure of the Russian Federation; The judge repeatedly participated in the consideration of the case in violation of the provisions of Article 17 of the Code of Civil Procedure of the Russian Federation.

37. Violation by the court of first instance of the norms of procedural law that establishes the rules of jurisdiction is not the basis for the application of the appellate court of paragraph 1 of part 4 of article 330 of the Code of Civil Procedure of the Russian Federation.

In the presence of these violations, the court of appeal in accordance with Article 47 of the Constitution of the Russian Federation and part 2 of Article 33 of the Code of Civil Procedure of the Russian Federation abolishes the decision of the court of first instance on the basis of part 3 of article 330 of the Code of Civil Procedure of the Russian Federation and transfers the case to the court of first instance, which the law refers to the judgment .

So, it can be transferred to the judgment in court of first instance, if a violation of the rules of jurisdiction is indicated in the appeal, the submission and court of appeal will establish that the person who has submitted a complaint or the prosecutor, which brought a submission, stated in court of the first instance of the petition On the unquestion of the case of this court or that they had no opportunity to declare in the court of first instance such a petition due to their links about the time and place of court session or unacceptable to participate in the case; If, due to the violation of the rules of labor due to the consideration of cases related to state secret, or rules exceptional jurisdiction On the claims on rights to immovable property, there was no possibility to collect, investigate and evaluate information as attributable and admissible evidence, respectively state secret or located at the location real Estatethat could lead to the imposition of the wrong decision of the court.

38. If the court of appeal will come to the conclusion that adopted by the court of first instance in the preliminary court session (paragraph of the second part 6 of article 152 of the Code of Civil Procedure of the Russian Federation) the decision to refuse to satisfy the claim (statement) due to the missing limitation period or the passage of the established Federal The law of the term of appeal to court is illegal and (or) unreasonable, then on the basis of part 1 of Article 330 and Article 328 of the Code of Civil Procedure of the Russian Federation abolishes the decision of the court of first instance. In such a situation, taking into account the provisions of paragraph of the second part 1 of Article 327 of the Code of Civil Procedure of the Russian Federation on the re-consideration of the case of the appellate court, it is subject to referral to the court of first instance for its consideration of the substantive claims, since the appealless decision of the court was submitted in the preliminary court session without research and establishment other actual circumstances of the case.

39. It should be borne in mind that by virtue of part 6 of article 330 of the Code of Civil Procedure of the Russian Federation, the right decision of the court of first instance cannot essentially be canceled according to the formal considerations (for example, due to the violation by the court of first instance of the procedure for legal judicial debate, the unreasonable liberation of the person, participating in the case, from payment state duty etc.). The character of violations admitted by the court of first instance (formal or informal) is determined by the appellate court in each particular case on the basis of the actual circumstances of the case and the content of the arguments of appeals, submission.

The formal violations cannot be given violations of the norms of the procedural law, provided for in paragraphs 1 - paragraph 4 of Article 328 of the Code of Civil Procedure of the Russian Federation, makes a definition of leaving the appeals, submission without consideration on the merits.

In the case when the case in the court of appeal will be established that the appeal complaint will not meet the requirements of part 3 of article 322 of the Code of Civil Procedure of the Russian Federation and in the court of appeal there is no possibility to eliminate existing shortcomings, and that the appeal is filed by a person who is not entitled to Appeal appealing of the court order, since the question of its rights and obligations, the court of appeal, on the basis of part 4 of Article 1, paragraph of the fourth article 222 and part 1 of Article 329 Article 199 Code of Civil Procedure) does not prolong the date of its entry into force) . At the same time, the judge, chair-chart in relation to article 193 of the Code of Civil Procedure of the Russian Federation, explains when and in which court of persons participating in the case can familiarize themselves with the motivated appellate definition.

The operative part of the appeal definition in accordance with Parts 2 and 4 of Article 329 of the Code of Civil Procedure of the Russian Federation should contain the conclusions of the appeal court on the results of consideration of appeals, submission within the authority defined in Article 328 of the Code of Civil Procedure of the Russian Federation, and if necessary, indicating the distribution judicial expenditures, including expenses incurred in connection with the filing of appeals, submissions. Head of 39 Code of Civil Procedure of the Russian Federation, and after making an appeal definition, an appeal complaint was received, the presentation from other persons who had a missing appeal period was restored, the court of appeal takes such a complaint, submission to its production and considers them in the manner prescribed by Chapter 39 Code of Civil Procedure of the Russian Federation. If, when reviewing newly received appeals, the submission of the appellate court will come to the conclusion about the illegality and unreasonableness of the court order of the court of first instance, then it is canceled together with the previously made appellate definition and a new appeal definition is adopted.

If the case of the appellate court proceeded on the basis of part 5 of article 330 of the Code of Civil Procedure of the Russian Federation to consider the case on the rules of production in the court of first instance without taking into account the features stipulated by Chapter 39 of the Code of Civil Procedure of the Russian Federation, then persons who had the right to file appeal, idea, but not The court order appealed against the court of first instance, the right to apply for the protection of its rights and legitimate interests in the court of cassation. Received appeals, submission from such persons to be returned by the court of first instance on the basis of

Consideration of the case by the court of appeal instance

When considering a case on appeal, the court checks the legality and validity of the decision of the court of first instance at the court session on the rules of production in the court of first instance, taking into account the features provided for by ch. 39 Code of Civil Procedure of the Russian Federation.

Cases in the courts of appeal, with the exception of district courts, are considered collegially.

The court, revising the case on appeal, should be guided by the standards regulating the consideration and permission of the case on the merits. At the same time, it is necessary to note a number of features that are inherent in only appeals. According to Part 2 of Art. 322 Code of Civil Procedure of the Russian Federation in the appeal, the submission cannot contain the requirements not declared when considering the case in the court of first instance, i.e. When considering the case in appeal, the subject or foundation of the claim considered by the court of first instance is not allowed. Also, the Court of Appeal does not apply the rules on the connection and separation of several claims, about changing the subject or reason for the claim, about changing the amount of claims, on the presentation of a counterclaim, replacing the improper respondent, attracting third parties to participate in the case.

Since when considering the case in the appeal order, the claimant's claims and the counter demands of the respondent must be maintained unchanged, then not only the subject and the basis of the claim cannot be changed in the appeal, but also the amount of claims. At the same time, as mentioned above, in the court of appeal (as in the court of first instance), the plaintiff has the right to refuse the claim, the parties can end up the work of the World Agreement (Art. 39 Code of Civil Procedure of the Russian Federation). The composition of the participating persons in the first and appeal instances should also coincide if there is no grounds for succession (Art. 44 Code of Civil Procedure of the Russian Federation).

The appellate court considers the case within the arguments set out in the appeal, representation and objections regarding the complaint, submission.

At the same time, the arguments and objections of the Parties to the court assesses the evidence in the case, as well as additionally presented evidence. Unlikely current edition Code of Civil Procedure of the Russian Federation additional evidence is accepted by the court of appeal, if the person participating in the case has substantiated the impossibility of their submission to the court of first instance for reasons that do not depend on it, and the court recognizes these causes respectful. On the adoption of new evidence, the court of appeal makes a definition.

If only part of the decision appeals in the order of appeal production, the appellate court checks the legality and validity of the solution only in the applied part. However, in the interests of the legality, the court of appeal is entitled to check the decision of the court of first instance in full.

According to the results of the consideration of appeals, the submission of the appellate court is entitled:

  • 1) Leave the decision of the court of first instance without a change, appeal, submission without satisfaction;
  • 2) cancel or change the decision of the court of first instance in whole or in part and to take a new decision on the case;
  • 3) to cancel the decision of the court of first instance in whole or in part and terminate the proceedings in the case or leave a statement without consideration in whole or in part;
  • 4) Leave the appeal, submission without consideration on the merits, if the complaint, submission was filed after the expiration of the appeal appeal and the issue of restoring this term was not resolved.

Article 330 of the Code of Civil Procedure of the Russian Federation, providing for the basis for cancellation or change in the court decision on appeal, is set out in new edition GL 39 Code of Civil Procedure of the Russian Federation completely in an updated form. According to the norms of this article, the grounds of this kind are:

  • 1) incorrect determination of circumstances that are important for business;
  • 2) the unprovenness of the circumstances established by the court of the first instance that are important for the case;
  • 3) the inconsistency of the conclusions of the court of first instance set out in the court decision, the circumstances of the case;
  • 4) Violation or incorrect application of substantive law or procedural law.

Incorrect application of material law standards are:

  • 1) non-use of the law to be applied;
  • 2) the application of the law not subject to use;
  • 3) incorrect interpretation of the law.

Violation or improper application of the norms of procedural law is the basis for changing or canceling the decision of the court of first instance, if this violation led or could lead to incorrect decision.

The grounds for the cancellation of the decision of the court of first instance in any case are:

  • 1) consideration of the case by the court in illegal composition;
  • 2) consideration of the case in the absence of any of those involved in the case and not properly informed about the time and place of the court session;
  • 3) violation of the rules about the language on which judicial proceedings are conducted;
  • 4) the court decision on the rights and the duties of persons not attracted to participate in the case;
  • 5) the court decision is not signed by a judge or any of the judges or the court decision signed not by the judge or not the judges who were part of the court who considered the case;
  • 6) the absence in the case of the trial;
  • 7) Violation of the rule on the secret of the meeting of judges when making a decision.

In the presence of grounds provided for in Part 4 of Art. 330 Code of Civil Procedure of the Russian Federation, the appellate court considers the case but the rules of production in the court of first instance without taking into account the features established by ch. 39 Code of Civil Procedure of the Russian Federation. The transition to the consideration of the case on the rules of production in the court of first instance is made with an indication of actions that should be made by persons participating in the case and the timing of their commit.

The correct decision of the court of first instance can not be canceled in one formal considerations.

Appeal of the definitions of the court of first instance

The definitions of the court of first instance can be appealed to the court of appeal separately from the court decision by the parties and other persons participating in the case (private complaint), and the prosecutor may be brought by the presentation if:

  • 1) it is provided for by the Code of Civil Procedure of the Russian Federation;
  • 2) The court decision excludes the possibility of further traffic.

Private complaint, the presentation of the prosecutor is considered:

  • 1) on the definitions of the magistrate - the district court;
  • 2) on the definitions of the district court, the garrison military court - the Supreme Court of the Republic, the regional court, the regional court, the court of the city of federal significance, the court of the autonomous region, the court autonomous District, district (naval) military court;
  • 3) on the definitions of the Supreme Court of the Republic, the regional court, the court of the city of the Federal Region, the Court of Autonomous Region, the Court of Autonomous Okrug, the district (Flot) of the Military Court - the appellate instance of the Supreme Court of the Republic, the regional court, the court of the city of the city of the Federal Region, the court Autonomous Region, Court of Autonomous District, District (Fleet) Military Court;
  • 4) for definitions Supreme Court RF - Appeal College of the Supreme Court of the Russian Federation.

Pa The rest of the definitions of the court of first instance are private complaints, the presentation of the prosecutor is not submitted, but objections regarding them can be included in the appeal, representation.

Private complaint, the presentation of the prosecutor can be filed within 15 days from the date of determination by the court of first instance. The specified innovation seems unreasonable due to the differences from total Appeal appeal.

The innovation is that a private complaint, the presentation of the prosecutor to the definition of the court of first instance, with the exception of the definitions of the suspension of production but the case, on the termination of the proceedings in the case, to leaving the statement without consideration, are considered without the notice of persons participating in the case.

According to the results of the consideration of a private complaint, the submission of the prosecutor of the appellate court has the right to:

  • 1) Leave the definition of the court of first instance without changing, complaint, the presentation of the prosecutor without satisfaction;
  • 2) Cancel the definition of the trial or in part and resolve the question of the merits.

Case number 33-1467 / 2015

Definition

on the transition to consideration according to the rules of production in the court of the first instance without taking into account the features provided for by Chapter 39 Code of Civil Procedure of the Russian Federation

tyumen

JUICAL BUILDING PO civil Affairs Tyumen Regional Court of:

presiding Corimonia N.I.

judges Kuchinskaya E.N. and Khamitic S.V.

when the secretary of Kouligina K.O.

having examined in open court a appeal of the person who did not attracted to participate in the case, Annenkova N.I.

"The lawsuit of Pestryakov D.Yu. to satisfy.

Save residential premises - Apartment number<.......> In the house number<.......> by<.......> In the redefined and renewed state, using the toilet area and the bathroom as a bathroom (the partition disassembled, the doorway is laid in the partition between the bathroom and the toilet, the sanitary-pleibers are transferred, the shower is mounted), with a partition installed in the corridor with auxiliary room installed in the corridor A partition with a doorway, using a part of the area of \u200b\u200bresidential rooms as corridors and bathrooms (partitions with doorways are installed, sanitary pribers are installed), with a total apartment of 102.7 sq. M., Living area of \u200b\u200b53.1 sq.m.

Having heard the report of the judge of the Tyumen Regional Court Cinnovy N.I., explanations of the person who did not attracted to participate in the case - Annenkova N.I. and his representative Permicova E.V., who asked the complaint to satisfy, the objections of the representative of the plaintiff Pestryakov D.Yu. - Nogovitsyna E.N., who asked to leave the court decision unchanged, the judicial board

s T A N O V L L A:

Pestry, D.Yu. He appealed to the court to the administration of the Central JSC of the administration of Tyumen on the preservation of residential premises in the redefined and renewed state, referring to the following:

he is the owner of a four-room apartment number<.......>located at:<.......>, <.......>in which redevelopment and reorganization was made: the area of \u200b\u200bthe toilet and the bathroom is used as a bathroom (the partition is disassembled, the doorway is laid in the partition between the bathroom and the toilet, plumbing devices are moved, a shower is installed), a partition is installed in the corridor in the corridor The partition with the doorway is installed, part of the area of \u200b\u200bresidential rooms are used as corridors and bathrooms (partitions with doorways are installed, additional sanitary pribers are installed). Since unauthorized reorganization and redevelopment did not affect the strength, stability and durability of the building structures, improved general state Apartments do not violate the rights and interests of the neighbors, asked the court to keep the apartment in this state.

The court ruled the above decision, with which the owner of Apartments No. 80, located above, is above, Annenkov N.I.- A person not attracted to participation in the case. The appeal indicates that as a result of reorganization and redevelopment of the apartment number 76, his rights violated, because The carrier wall is broken, changes are made to the design of the sewage and ventilation, and therefore the smell of sewage appeared in its apartment and there was an additional noise from the pumping equipment, especially at night, exceeding the maximum permissible norms. In addition, its rights are violated as a co-owl of a general-known property, since the reorganization was made through holes in the floor for the device of sewage pipes that go to the basement.

From the plaintiff Pestryakov D.Yu. They received objections to the appeal, in which he asks to leave a decision without changing.

After listening to the explanations of those involved in the case, checking the materials of the case, discussed the arguments of the appeal and objections, the judicial board concludes that there is grounds for the transition to the consideration of the case in the appellate court according to the rules of production in the court of first instance without taking into account the features provided for by Chapter 39 of Civil procedure Code Of the Russian Federation, on the following grounds.

By virtue of part 1 of article 26 of the Housing Code of the Russian Federation, reorganization and (or) redevelopment of residential premises are carried out in compliance with the requirements of legislation in coordination with the authority local governments Based on the decision taken by him.

In accordance with parts of 1.3 and 4 of Article 29 of the LCD RF, the reorganization and redevelopment of residential premises carried out in violation of the norms of housing legislation are unauthorized. Based on the decision of the Court, the residential premises can be saved in a renewed and (or) redeveloped state only if the rights are not violated, and legal interests Citizens, or it does not create a threat to their lives or health.

Satisfying the lawsuit, the court of first instance substantiated his decision by referring to the technical conclusion of the "Design and Exploration Institute" LLC "GALS" and the expert opinion of the federal budget institution Health Care "Center of Hygiene and Epidemiology in the Tyumen Region" from № 21 / k dated January 21, 2014, according to which the completed redevelopment and reorganization of the apartment satisfy the requirements of CH 54.13330.2011 "SNiP 31-01-2003" Buildings of residential multi-apartment buildings "in terms of strength, Sustainability, are in a satisfactory condition, do not affect the transfer of existing engineering communications of the residential house, suitable for further use, do not violate the rights and legitimate interests of citizens and do not create a threat to their life and health (ld 55-35), and comply with SanPiN requirements 2.1.2.2645-10 "Sanitary and epidemiological requirements for living conditions in residential buildings and premises" (ld.36).

However, these findings do not contain information about how additional plumbing and ventilating equipment, as well as the water supply system, is attached to the total property of the owners of an apartment building.

Meanwhile, part 2 Articles section II. Ownership and others real rights For residential premises\u003e Chapter 6. The common property of the owners of the premises in apartment house. General meeting Such owners\u003e Article 36. Ownership of the common property of the owners of the premises in an apartment building "Target \u003d" _ blank "\u003e 36 LCD RF established that the owners of the premises in an apartment building own, enjoy both established by this Code and civil law dispose of common property in an apartment building.

According to the article, Civil Code Russian Federation possession, use and disposal of property in dolly ownership, carried out by agreement of all its participants.

Considering the dispute, the court of first instance in order to clarify these circumstances did not attract the organization to participate in the organization, carrying out the management of common property in this apartment building, is TVK Condominium "life."

Addressing the complaint, the applicant presented an act of the State Housing Inspectorate of the Tyumen Region dated December 25, 2014 and the prescription of the Ministry of Emergency Situations of Russia in the Tyumen Region dated 12.12.2013, which confirm the fact of the presence of through holes in the floor owned by the plaintiff number No.<.......> (ld91 turnover, 93-95).

From answer federal Service According to the supervision of the protection of consumer rights and the well-being of a person dated July 30, 2014, it follows that the apartment of the plaintiff number 76 is equipped with a system of pumping auger sewage, due to the work of which the sound level and the level of sound pressure in the residentials of the apartment located above does not correspond to Requirements hygienic standards For night time, when the hardware is turned off, the sound level does not exceed the permissible levels (ld 81-82,83-86).

Consequently, satisfying the claims, the court of first instance actually allowed the issue of the rights and obligations of persons not attracted to participation in the case, which, by virtue of the requirements of paragraph 4 of paragraph 4 of the article, is an unconditional basis for the cancellation of the court decision and consideration of the case in the court of appeal according to the rules Production in the court of first instance without taking into account the features stipulated by Chapter 39 Code of Civil Procedure of the Russian Federation.

Guided by articles, paragraph 4 of part 4, part 5 Articles of the Civil Procedure Code of the Russian Federation, Judicial Collegium

determined:

Go to the consideration of civil affairs on the claim of Pestryakov D.Yu. To the administration of the Central JSC administration of Tyumen on the preservation of the residential premises in the redeveloped and renewed state according to the rules of production in the court of first instance without taking into account the features stipulated by Chapter 39 of the Code of Civil Procedure of the Russian Federation.

Attract Annenkova N.I., staying at:<.......><.......>, and TVK Condominium "Life" to participate in the case as third parties on the side of the defendant.

Suggest those involved in the case to familiarize themselves with the materials of the case and submit their objections to the statement of claim and additional evidence.

Suggest TVK Condominium "Life" to submit an act of inspection of sewage networks in an apartment number<.......> and in the basement of the house number<.......> At the site of joining to general awareness.

Appoint a real case to consideration by the appellate instance of the Tyumen Regional Court in the premises of the Tyumen Regional Court at the address: Tyumen, ul. March 8, 1, hall number 6 on April 13, 2015 at 12 am 40 minutes.

Notify all persons participating in the case, about the day, time and place of consideration of the case.

Presiding Judge Korikov N.I.

Judges College Hamitova S.V.

Kuchinskaya E.N.

Court:

Tyumen regional Court (Tyumen region)

Plaintiffs:

Pestry, D.Yu.

Respondents:

Employee Central JSC Administration of Tyumen

Judges:

Korikova Nadezhda Ivanovna (judge)

Eighteenth Arbitration Court of Appeal

Presidium

Decision

On some issues of the practice of transition to consideration of cases according to the rules of the court of first instance

In order to ensure uniformity in applying the norms of procedural law, guided by Article 33 5 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation", the Presidium of the Eighteenth Arbitration court of Appeal He decided to give judges the following recommendations.

1. In the case when the operative part of the considered court decision, posted on the official website of the Arbitration Court in the Internet Information and Telecommunications Network, in its content is identical to the typewritten texts of the declared resolution part judicial act, the operative part of the full motivated text of the decision of the court of first instance or the permanent part of the judicial act in the audio recordings, which is in the case file, such a judicial act may be canceled by the court of appeal, if this violation led or could lead to incorrect decision ( Part 3 of Article 270 of the Arbitration Procedure Code of the Russian Federation, further - the APC RF, Codex).

2. If the minutes of the court session in violation of the requirements of part 4 of article 58, Article 166, part 3 of Article 167 of the APC RF does not contain information about the removal of the court to the adviser room, then when checking compliance with the rule on the secret of the meeting of judges (paragraph 7 of Part 4 of Article 270 of the Code ) The Court of Appeal must be found out in individuals involved in the case, the actual circumstances of the declaration of the operative part of the decision, as well as to use the audio record of the court session.

At the same time, oral and written explanations of persons participating in the case, according to part 4 of Article 71 of the APC RF, are subject to an assessment by the Arbitration Court along with other evidence, including the Protocol and audio recordings of the court session. No evidence has a pre-established force for the arbitral tribunal (part 5 of article 71 of the Code).

3. As follows from the provisions of part 4 of Article 121 of the APC RF, the judicial notice addressed to the legal entity is sent at the location of this person determined on the basis of an extract from the Unified State Register legal entities.

Since, as a general rule, the legal entity carries the risk of the consequences of non-treatment of legally significant messages received at its address indicated in the Unified state registry Legal entities, such a legal entity is not entitled to refer to the improper notice during the consideration by the court (paragraph of the second paragraph 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 61 "On some issues of the practice of consideration of disputes related to the accuracy of the address of the legal entity" ).

By virtue of the above, the arbitral tribunal is not obliged to inform the legal entity participating in the case, about the time and place of the court session in other addresses in the case of the case.

At the same time, with the proven fact of receiving a copy of the first judicial act on the case under consideration, when the judicial notice was sent not only at the location of the legal entity, but also by the one-known court of the address, the grounds for the abolition of the appealed judicial act under paragraph 2 of Part 4 of Article 270 APC RF is absent.

4. If, in accordance with part 4 of Article 121 of the APC RF APC, the person participating in the case stated a petition for the direction of judicial notions in another address, the notice is considered proper if it is directed to this address and at the address specified in the Unified State Register of Legal Entities, and delivered one of these addresses (paragraph first of paragraph 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 17, 2011 No. 12 "On some issues of applying the APC RF in the editorial office Federal Law from July 27, 2010 No. 228-FZ "On Amendments to the APC RF").

In itself, an indication of the person participating in the case, in the claim, the response to the statement of claim or the other procedure document There is no other address to contact him within a sense of Article 159 of the APC RF, does not indicate a statement of the appropriate application, so when the court of first instance of the court notice at this address of the grounds for the cancellation of the appealed judicial act under paragraph 2 of Part 4 of Article 270 of the APC RF APC is not available.

5. Definitions of the Arbitration Court of the appellate instance on the transition to consideration of cases according to the rules of the court of first instance (Part 1 of Article 268 of the APC RF), made as in the form of a separate judicial act and the protocol definition should contain short description The motives for which the court came to the conclusions about the need for such a transition.

The decision of the Arbitration Court of the appellate instance should contain more detailed description Circumstances that served as the basis for cancellation of the judicial act on unconditional bases (paragraph 13 of Part 2 of Article 271 of the APC RF).

6. If the case is recognized as prepared and at the court session there are all participating persons who do not mind the continuation of its consideration in this meeting, the court of appeal is transferred to the consideration of the case on the rules established by the APC RF to consider the case in the court of first instance (paragraph The second paragraph 30 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the APC of the Russian Federation in the consideration of cases in the Arbitration Court of Appeal").

Otherwise, in the definition of the transition to the consideration of the case on the rules of the court of first instance, circumstances must be indicated that impede the court of appeal to consider the case in the same court session in which the definition was made.

In the specified definition, the appellate court also has the right to resolve the issue of the exclusion of erroneously attracted on the initiative of the court to participate in the case of third parties, which do not declare independent claims regarding the subject of the dispute, from the composition of those involved in the case.

7. To recognize the resolution of the Presidium of the Eighteenth Arbitration Court of Appeal dated 21.06.2010 No. 6 "On some issues of the practice of transition to the consideration of cases according to the rules of court of first instance"

Chairman Fenina