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Appeal to the economic court. Cassation appeal

Appeal to the economic court. Cassation appeal

So, your company has signed a contract for the production and supply of goods.

You have completed your part of the contract. The goods are manufactured and delivered in accordance with the contract.

Claims for the quality and quantity of goods have not been received.

Your partner turned out to be no non-partner and instead of paying, he answered with complete financial silence.

You waited, but wrote a couple of letters and a complaint - it did not help. Appealed to the court. In court, a surprise was waiting for you. The economic court took and went on about your opponent. He referred to the decision on some nonsense, quoted several articles of the law - and refused to fully satisfy your claims.

What to do next? The company decided not to surrender and filed an appeal to the Economic Court of 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 decision unchanged.

You decided not to give up and go all the way. 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 the main points 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 (10 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 for securing the claim, to replace the measures for securing the claim, for counter-offer, to refuse to make an additional decision, to clarify the decision or to refuse to clarify the decision or refusing to make corrections to a decision, about returning an application for review of a court decision on newly discovered or exceptional circumstances, about refusing to open productions on newly discovered or exceptional circumstances, on the replacement of a party to a case, on the imposition of a fine by means of procedural coercion, separate definitions;
  • • rulings and decisions of the court of first instance after their review on appeal and the ruling of the court of appeal on bankruptcy (insolvency) cases in cases provided for by the relevant law.

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 matters, except when:

    • • the cassation complaint concerns the issue of law, is of fundamental importance for the formation of a uniform law enforcement practice;
    • • a person who lodges a cassation complaint, in accordance with this Code, 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 categorized the case as minor by mistake.

What is the time limit for filing a complaint?

20 days from the date of the announcement of the decision.

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;
  • • the same with your opponent, other participants in the process, if any;
  • • 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 applications to the complaint.

What is attached to the complaint?

  • • if the complaint is filed by a representative and there is no evidence of his authority in the case - a power of attorney or other document certifying his authority;
  • • 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?

Reviewing court decisions in cassation, the court of cassation, within the framework of the arguments and requirements of the cassation appeal, and on the basis of the established factual circumstances of the case, verifies the correctness of the substantive and procedural law applied by the court.

The court of cassation does not have the right to establish or consider as proven circumstances that were not established in the court’s decision or decree or were rejected by it, decide on the reliability of this or that evidence, the advantage of one evidence over others, collect or accept new evidence or additionally check the evidence.

The court of cassation does not accept and does not consider claims that were not subject to review in the court of first instance. The change of the subject and the grounds of the claim in the court of cassation is not allowed.

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 without satisfaction;
  • • cancel the court decisions of the courts of first instance and appeal in full or in part and refer the case in full or in part to a new trial, 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 economic 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 abilities?

Come to us!

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