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Appeal to the court. The civil process. Cassation appeal

Going to court in a civil case. Cassation appeal

So, your company has issued an employee interest-free loan. That is, a loan agreement was concluded. The employee received the money at the box office, then something did not work out, had a row with the boss and soon quit. And for some reason I forgot to return the money.

In a word, you fulfilled your part of the contract, and your former employee did not.

You waited, but did not help. Wrote a claim - again did not help. Appealed to the court. And in court you were in for a surprise. The court took and went on about your opponent. He pointed out in the decision some internal contradictions in the contract, flaws in the account cash warrant, then referred to some other absurd circumstances - and denied the claim in full.

What to do next? It is a shame for a firm to lose a case on a claim to its employee, moreover, the claim is fair! The company decided not to give up and filed an appeal.

The appeals court reviewed the case, found some violations of the law by the court of first instance, but considered them to be insignificant and not affecting the essence of the case.

As a result, the appeal left the court decision unchanged.

You again decided not to give up and go to the end.

You need to file a cassation appeal with the Supreme Court of Ukraine (hereinafter referred to as the Supreme Court of Ukraine).

We tried to systematize the procedure and highlights of your company's cassation instance in the table below.

Who can file a complaint?

1. Immediate participants in the case (you and your opponent)

2. Persons who did not participate in the case, but the court, by its decision, touched on their rights, interests and / or duties (only after its review on appeal on their appeal).

What decisions can be filed with the APU?

  • • the decision of the court of first instance after the appeal review and the decision of the court of appeal, except for court decisions that are not subject to cassation appeal, according to the direct instructions of the law (see below);
  • • court rulings of first instance listed by law (12 in total), after their review on appeal;
  • • court rulings of the appeals instance to refuse to open or close the appeal proceedings, to return the appeal, to suspend the proceedings, to secure the claim, to replace the measures to secure the claim, to provide for counter-offer, to refuse to make an additional decision, to clarify the decision or to refuse to clarify the decision, about making or refusing to make corrections to a decision, about returning an application for reviewing a court decision on newly discovered or exceptional circumstances, about refusing to open a program on the basis of newly discovered or exceptional circumstances, on the replacement of a party to the case, on the imposition of a fine by means of procedural coercion, separate definitions.

What are the grounds for filing a complaint with the Ukrainian Armed Forces?

Wrong application of substantive law by the court or violation of procedural law

Which decisions are not subject to cassation appeal?

  • • decisions, rulings of the court of first instance and rulings, rulings of the court of appeal in cases on which decisions are subject to review by the Supreme Court, as the court of appeal;
  • • court decisions in minor cases, except if:
  • • the cassation complaint concerns the issue of law, is of fundamental importance for the formation of a uniform law enforcement practice;
  • • the person who submitted the cassation complaint is deprived of the opportunity to refute the circumstances established by the appealed court decision when considering another case;
  • • the case is of significant public interest or is of exceptional importance to the participant in the case who submits a cassation appeal;
  • • the court of first instance attributed the case to the category of minor cases by mistake.

What is the time limit for filing a complaint?

30 days from the moment the decision was announced.

If at the court session only the introductory and operative parts of the decision were announced, or if it was made without summoning the parties, the term is calculated from the day the full decision was made.

To which court is the complaint filed?

And here is the attention! Previously, the complaint was filed through the court of appeal. Now the law has changed, and the complaint is filed directly to the MAT.

However, it is necessary to take into account that prior to the day the United Judicial Information and Telecommunication System started functioning, the complaint is submitted “as before”, that is, through the court of appeal.

What should a complaint contain?

  • • the exact name of the court in which we complain;
  • • the full name of your company, its location, including the zip code, EDRPOU code, numbers of communications, official e-mail and e-mail addresses, if they exist;
  • • surname, name and patronymic of your former employee, his place of residence or stay, the registration number of the taxpayer registration card (if available) or the number and series of passports, known numbers of communications, e-mail;
  • • the same with respect to other participants in the process, if they exist (for example, a guarantee agreement was signed: if the guarantor is an individual - he is described as your debtor; if this is a legal entity - accordingly, like your company);
  • • information about the decision appealed;
  • • Your position on the question of what is the incorrect application of the rules of substantive law or violation of the rules of procedural law, which led to the adoption of an unlawful judicial decision.
  • • complainant’s requirements;
  • • date of receipt of a copy of the contested decision of the appellate court;
  • • list of annexes to the complaint.

What is attached to the complaint?

  • • if the complaint is filed by a representative - a power of attorney or other document certifying his authority;
  • • copies of the complaint and the documents attached to it - in an amount equal to the number of participants in the case;
  • • evidence of court fees;
  • • evidence confirming the date of receipt of a copy of the contested decision of the appellate court, if any.

To what extent is the case reviewed by the Armed Forces of Ukraine?

When considering the case in cassation, the court checks, within the limits of the cassation appeal, the correctness of the application of the norms of substantive or procedural law by the court of first or appeal instance.

The Armed Forces of Ukraine cannot establish and / or consider as proven circumstances that were not established or rejected by the decision, decide on the reliability or unreliability of this or that evidence, on the superiority of some evidence over others.

The cassation court checks the legality of court decisions only within the limits of the claims filed in the court of first instance.

The court is not limited to the arguments and requirements of the cassation complaint, if during the examination of the case a violation of the rules of procedural law, which are the mandatory grounds for the annulment of the decision, or the incorrect application of the norms of substantive law is found.

What are the powers of the Supreme Court of Ukraine as a result of the consideration of your complaint?

  • • leave the court decisions of the courts of first instance and the appeals instance unchanged, and the complaint dismissed;
  • • cancel the court decisions of the courts of first and appeal instances fully or partially and transfer the case in full or in part to a new consideration, in particular, according to the established jurisdiction or to continue the consideration;
  • • cancel court decisions in full or in part and take a new decision in the relevant part or change the decision without transferring the case to a new consideration;
  • • cancel the decision of the court of appeal in full or in part and uphold the decision of the court of first instance in the relevant part;
  • • cancel the court decisions of the first and appeal instances fully or partially and terminate the proceedings or leave the claim without consideration in the relevant part;
  • • in cases provided by law, invalidate court decisions of courts of first and appeal instances fully or partially and terminate the proceedings in the relevant part;
  • • in cases provided by law, cancel your decision (in whole or in part) and take one of the decisions mentioned above.

Schematically, these are the main points of the cassation stage of the judicial process.

Its main feature is that the court case is not reviewed, in fact, in full and there is no evaluation of the parties' evidence again.

The Supreme Court of Ukraine is guided by the facts and circumstances established by the lower instances, as well as the evidence collected by them.

Thus, you have a chance for a positive outcome of the consideration of the complaint only if the Supreme Court of Ukraine establishes the court’s incorrect application of substantive law or violation of procedural law.

At the same time, the law reminds us that a substantive and lawful decision cannot be overturned for formal reasons only.

Do you doubt your ability?

Come to us!

Our specialists will accompany you at all stages of the trial!


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