What is the cassation. The difference between the appeal and the appeal

People who defend their rights in court often ask the question about what is the cassation. Let's try to explain it in the most correct way.

Basic concepts

Appeal and cassation are the following stages after the first instance. Some lawyers, after the judicial reform of 2012, are a little confused in these terms, and many ordinary citizens especially do not know about them. So what is cassation? What is its difference from the first two instances? We will try to find out.

Cassation - the second appeal?

Consider the concepts of appeal and cassation. What are the significant differences between them? Many even practicing lawyers mistakenly believe that the cassation is the third attempt of judicial contests. "Special professionals" often only change the wording of the appeal from the appeal to the appeal, which rightly leads to negative results.

Appeal is the second instance of litigation. She is considering the decisions that have not yet entered into force. For example, the first instance is a district court. The losing party within a month after it has the right to appeal to the Judicial Board. It is delivered through the body that made the initial decision. The appellate court is obliged to examine the applicant's complaint. Only after this decision of the first instance comes into force.

Cassation in the civil process is a special instance. It is submitted to a court decision that has already entered into legal force. In addition, the authority is not obliged to consider the complaint at the meeting. All can end in the office of the judge, to which the request for cancellation of the decision has got. To file a complaint you must:

• In the presidiums of subjects.
• To the Supreme Court.

What is the difference from an appeal? Cassation in the civil process reveals significant violations of procedural and substantive rules that affected the outcome of the case. No additional assessment of the evidence that is in the case, the applicant should not give. It's useless. If a citizen is sure that the court has not sufficiently examined the evidence, then it is not worth paying attention to it. If there are contradictions between the witnesses in the case, for example, the cassation will also leave it without attention. A more meaningless occupation is a petition to bring new evidence to the case, even if they significantly affect the outcome. This is the basis for review in the first instance. We hope that now it becomes clear what cassation is, and how it differs from the appeal. Let's pass to one more important difference.

Cassation: Judge's determination

We have already noted that there are two instances within the cassation, but within each complaint there are three stages:

• Formal stage - the complaint is considered from the point of view of the correctness of its content. It is necessary to attach to it relevant copies of the decisions of the first two instances. Should contain the name of the court, which is served, the procedural status of the applicant (the plaintiff, the respondent), as well as information about other persons in the case. In addition, the complaint should indicate all previous decisions, it should list violations of procedural and substantive rules. At the end there is a request and an annex.

• Judge's determination. The applicant's complaint first reaches the judge. He does not see the case, because it is in the first instance. However, he studies the arguments of the complaint and copies of the decisions of the two instances. As a rule, everything ends at this stage. The Collegium of the Court of Cassation is not obliged to assemble when filing a complaint, in contrast to the appeal. Therefore, many fates are ruined at this stage. Further, the judge decides to convene or not convene a panel of judges for consideration. In any case, his decision must be somehow motivated.
• Session of the judicial board. If the judge has decided to initiate a cassation proceeding, this is a good sign for the applicant. The judicial board will meet. As a rule, it takes positive decisions for the applicant. However, practice shows that there are very few such cases, less than 10 percent.

Terms of cassation

For filing a complaint, six months have passed since the legal decision entered into force. For the uninitiated, let's say that this is from the moment of the appeal, since there will be no chance for cassation if it passes. The deadline for the next day after the announcement of the operative part begins to be calculated. This means that, without having to substantiate the appeal, it is necessary to prepare for the cassation. How to do this is another question, but the time begins to be calculated precisely from this moment, and not from the day of obtaining the definition on hand. The deadline for the two appeals is the same. It is not correct to think that six months will be counted again after the regional Presidium. It is also impossible to file a complaint with the Supreme Court, bypassing the regional stage.

If the judge made a decision on the refusal to initiate the cassation proceedings, this would be the basis for filing a higher authority. However, the dismissed cases in the Supreme Court are less than those of all lower courts combined. Therefore, it is necessary to think whether it makes sense to do so.

Competence of cassation

The cassation instance has the right:

• Reject the complaint, leave it without satisfaction.
• Cancel the decision of the lower courts and send the case for a new trial.
• Accept a new solution.

The last option is from the realm of fantasy, so the victory at this stage is the definition of a new examination of the case. In this case, there is a chance for a fair resolution.

What is a violation of the law?

Particular complexity is caused by such a concept as a violation of the rules of law. As for the material, it is necessary to identify such a violation as an incorrect interpretation of the law or the application of an unnecessary rule. For example, the court used articles from the Civil Code in family law.

With regard to procedural violations, then as an example may be:

• Absence of a protocol.
• Violation of jurisdiction.
• Violation of the principle of equality of parties, etc.

Thus, we hope that it is now clear what the cassation is and how it differs from the appeal. The main thing is always to seek justice through legal methods.