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Revision on the newly discovered circumstances. Civil and business process

Review of the case due to newly discovered or exceptional circumstances. Civil and business process

So, your Company passed along with its litigation the entire vertical of the judicial system of Ukraine.

Once upon a time, your company went to court on a claim for recovery of debts from the debtor. The court of first instance refused to satisfy your claims.

You decided not to give up and appealed the decision of the court in the Court of Appeal. But the appeal left the court decision unchanged.

Then you filed a complaint with the Court of Cassation. But this instance also left the court decision unchanged.

You ask, well, everything? All legal ways to protect your rights in court exhausted? Almost everything.

And what if previously unknown circumstances later surfaced?

Example 1. The company-opponent throughout the whole trial process misled you and the court that that its foreign founder did not agree to conclude a deal with you, and the head of this company did not have the authority to sign the contract. As a result, criminal proceedings were opened against this manager, and your company’s claim was denied.

After the verdict is not in your favor, the foreign founder arrives and brings confirmation of the granting of all authority to the director of the opponent company, while claiming that everything told in the trial about his decisions is a fiction.

Example 2. Law enforcement agencies covered the judge who tried your case and proved his systematic corruption activities in court to defend the illegal interests of your opponent. Including the fact of receiving a bribe for making a knowingly unlawful decision in your case.

That's just in these and similar cases, this is not the end of the trial.

In some cases, the last stage of the consideration of a case is its review due to newly discovered or exceptional circumstances.

What are the grounds for reconsidering a court decision on newly discovered circumstances? Such grounds are:

1) essential for the case circumstances that were not established by the court and were not and could not be known to the person who filed the application during the consideration of the case;

2) the fact that a deliberately false expert opinion, deliberately false testimony of a witness, deliberately incorrect translation, falsity of written, material or electronic evidence, established by a sentence or order to close criminal proceedings and release the person from criminal responsibility, entered into legal force, led to an unlawful decision on the case;

3) the abolition of the court decision, which became the basis for the adoption of a court decision, is subject to review (for example, when the plaintiff referred to a court decision on the collection of the principal debt in a claim for recovery of late payment penalties).

Our example 1, just, corresponds to the first basis for revision.

Separately, the law defines circumstances that are not grounds for reconsidering a decision on newly discovered circumstances. These are:

1) a new assessment of the evidence, which the court has already assessed, in the process of the case;

2) evidence, which the court did not assess, in relation to the circumstances that were established by the court.

What are the grounds for revising a court decision in exceptional circumstances? These are:

1) the establishment by the Constitutional Court of Ukraine of the unconstitutionality (constitutionality) of the law, another legal act or their separate provision applied (not applied) by the court in the consideration of the case, if the court decision has not yet been executed;

2) the establishment of an international judicial institution, the jurisdiction of which is recognized by Ukraine, of Ukraine’s violation of international obligations when the court decided the case;

3) the establishment of a court verdict, entered into legal force, the fault of the judge in the commission of a crime, which resulted in a court decision.

Example 2 above corresponds to the third reason for the revision.

Important!

When viewing a court decision on newly discovered or exceptional circumstances, the court cannot go beyond the requirements that were the subject of a dispute when ruling, which is being appealed, consider other claims or grounds for a claim.

What is the time limit for applications for review?

For newly discovered circumstances:

Base 1

Not later than thirty days from the day when the person learned or could know about the existence of circumstances that are the basis for the review of the decision

Base 2

Not later than thirty days from the day when the sentence (decision) in the criminal proceedings entered into force

Base 3

Not later than thirty days from the date of the entry into force of a court decision, which canceled the court decision, which was the basis for a decision to be reviewed

In exceptional circumstances:

Base 1

Not later than thirty days from the date of the official publication of the relevant decision of the Constitutional Court of Ukraine

Base 2

Not later than thirty days from the day when the person learned or could learn about the status of the final decision

Base 3

Not later than thirty days from the day when the sentence in the criminal proceedings entered into force

At the same time, the law sets deadlines , within which an application for review of the court decision can be submitted:

  • • on grounds 1 for review on newly discovered circumstances - not later than three years from the moment when the contested court decision comes into force;
  • • on other grounds for review on newly discovered circumstances, as well as on all grounds for review on exceptional circumstances - no later than ten years after the contested court decision entered into force.

These terms cannot be restored or extended by court.

Which court reviews the application?

The application for review of the court of first instance on grounds 1 and 3 for review on newly discovered circumstances - is submitted to the court, which made the court decision.

Application for review of court decisions of the courts of appeal and cassation instances for the same reasons, which changed or canceled the court decision - is submitted to the court of that instance, which changed or adopted a new court decision.

The application for review of the court decision on all other grounds for review on newly discovered and exceptional circumstances is submitted to the Supreme Court and is considered as part of the Grand Chamber.

What should contain a statement of revision?

  • • name of the court to which the application is submitted;
  • • the name (title) of the applicant, his domicile or location - civil disputes ;
  • • the full name of the company, its location, including the postal code, the EDRPOU code, numbers of communications, official e-mail and e-mail addresses, if they are - <> style for legal entities - on business disputes ;
  • • other participants in the case;
  • • the date of adoption and the content of the court decision, the revision of which the application was submitted;
  • • newly discovered or exceptional circumstances that justify the requirement to revise the court decision, the date of their discovery or establishment;
  • • reference to evidence confirming the presence of newly discovered or exceptional circumstances.

What should be attached to the revision statement:

  • • copies of the application in accordance with the number of participants in the case - civil disputes ;
  • • evidence of sending copies of the application to the participants of the case (a letter with an investment list) - on business disputes ;
  • • document on the court fee payment (when filing an application on grounds 2 for reviewing cases in exceptional circumstances - the court fee is not paid);
  • • evidence confirming the presence of newly discovered or exceptional circumstances;
  • • document confirming the authority of the representative of the person submitting the application - if the application is signed by such representative;
  • • petition of a person to obtain a copy of the decision of an international judicial institution, whose jurisdiction is recognized by Ukraine, from the body responsible for coordinating the implementation of decisions of the international judicial institution, if it is not at the person’s disposal in exceptional circumstances);
  • • in case of missing the deadline for filing an application - a petition for his recovery, with justification of the validity of the reason for the permit.

In the framework of the review, after the application has been accepted for consideration, the case is considered by the court according to the rules established by this Code for the court of the instance that carries out the review. In the court of first instance the case is considered in the order of the simplified action proceedings with the notification of the participants of the case.

According to the results of the revision of the court decision on newly discovered or exceptional circumstances, the court is authorized:

  • • refuse to satisfy the application for review of a court decision on newly discovered or exceptional circumstances and leave the relevant court decision in force;
  • • satisfy the application for review of the court decision on newly discovered or exceptional circumstances, cancel the relevant court decision and adopt a new decision or change the decision;
  • • cancel the court decision and terminate the proceedings or leave the claim without consideration.

According to the results of the review of the court decision on newly discovered or exceptional circumstances, the Supreme Court may also cancel the court decision in whole or in part and refer the case for a new trial to the court of first or appeal instance.

Thus, the passage with a negative result of all instances of the judicial system of Ukraine - still not in all cases means a complete and unconditional defeat in a judicial dispute.

Do not forget about the newly discovered and exceptional circumstances.

Yes, these circumstances provide for a couple of only six reasons for a possible revision. It really is not much.

But from this opportunity, you can try to squeeze the maximum.

The same international courts from time to time give interesting decisions. Yes, they consider cases for a long time. But at times - very effective.

Therefore, you should try to try all possibilities to achieve a positive result.

It is clear that, for example, the necessary grounds for revision, which must be established by a court sentence on criminal proceedings, are a phenomenon quite rare for our reality.

But people say that once a year and a stick shoots.

No need to cast away this opportunity ashore.

Of course, the most common reason is the presence of "significant circumstances for the case, which were not established by the court and were not and could not be known to the person who applied statement, during the consideration of the case " (base 1 for a review of the case under the newly discovered circumstances).

At the same time, to establish these circumstances, it would be correct not only to monitor the current situation (on the subject, and maybe something will pop up), and to reconsider the previously known circumstances and documents again.

Of course, the ideal case is example 1, when a foreigner arrived, denied what you need, and also provided the necessary documents that refute the facts on which the negative court decision is based.

But it happens that the necessary documents are in the secondary analysis of the evidence base, already on the fact of losing the case.

For example, a letter or another document (reconciliation statement) signed by the debtor, dated during the dispute resolution period, reveals the fact of recognition of the debt, which the court has already refused to collect.

Yes, you will have to work hard to substantiate to the court that this old document was unavailable to you all this time ( circumstances that were not and could not be known to the person who filed the application ). But with a creative approach this can be done (was temporarily lost among other documents, was in an inaccessible place, etc.).

It is important that the following factors come together at one point:

  • • the document testifies to circumstances that, for example, refute the facts (circumstances) on which the court decision is based (that is, confirms the circumstances relevant to the case);
  • • the document shows the circumstances that existed during the consideration of the case;
  • • about this document and these circumstances were not and could not be known to you, as the applicant during the consideration of the case by the court (and you justify it to the court);
  • • due to the preceding factor, you did not report these circumstances (did not submit the document) to the court, and the court accordingly did not study and did not establish these circumstances.

If all the factors are in place, consider the reason for revising the court decision in your pocket.

It remains only to write a statement, observe the thirty-day period for its submission from the time of the miraculous discovery of new (essential) things for the case. Well, it is important that since the entry into force of the contested court decision, in this case, no more than three years have passed.

Then the chances for a positive outcome of your business are, perhaps, great.

Do you doubt your ability?

Come to us!

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


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