Plenum of the Supreme Court on the use of the APC in cassation - clues for the eye
So the media told us the good news - now we have a Resolution of the Plenum of the Supreme Court on the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of cassation.
What caught your eye when reading it?
1) A transfer of the theses of the 36th Plenum of the Supreme Arbitration Court on the APC in the appellate instance regarding the appeal under 42 of the APC is visible (criteria for determining interest, paragraph 2):
Other persons, by virtue of Part 3 of Article 16 and Article 42 of the Code, include persons on whose rights and obligations a judicial act has been adopted.
In this regard, persons not participating in the case, both indicated and not indicated in the reasoning and/or operative part of the judicial act, have the right to appeal it in cassation proceedings if it is adopted on their rights and obligations, that is, given a judicial act affects their rights and obligations, including creating obstacles to the exercise of their subjective rights or the proper fulfillment of obligations in relation to one of the parties to the dispute.
True, it is tamed by a standard set of theses, which makes it possible to arbitrarily refuse such a complaint:
3. …
When considering a case on a cassation appeal of a person who did not participate in the case, the cassation court determines whether the adopted judicial act affects the rights or obligations of the applicant, and, having established this, decides on the issue of canceling the judicial acts of the courts of first and appellate instances, guided by paragraph 4 of part 4 Article 288 of the Code.
Actually, the main intrigue here is that now it seems like the application of paragraph 4 of part 4 of Article 288 of the Arbitration Procedure Code of the Russian Federation can be interpreted as permissible only in the course of considering a complaint under 42 of the Arbitration Procedure Code of the Russian Federation - that is, not “ex officio” by the court itself, but only by a complaint by a person on whose rights and obligations the appealed judicial act was adopted.
If this is so, then it turns out that the sad tendency (especially clearly manifested by the Intellectual Rights Court) to deny persons participating in a case references to paragraph 4 of part 4 of Article 288 of the Arbitration Procedure Code of the Russian Federation is finally fixed at the level of the Plenum, and there is no more unconditional basis, subject to verification by the court itself in accordance with Part 2 of Article 286 of the Arbitration Procedure Code of the Russian Federation no longer exists.
At the same time, the full power of the uniformity of consideration of complaints under 42 Arbitration Procedure Code of the Russian Federation can be felt, for example, by comparing:
— decision of the IP dated 05/19/2020 in case A56-7308/2019, in which he took pity on the corporations Exxon Mobile Corporation, Castrol Limited, MOTUL SA, TOTAL SA, SHELL BRANDS INTERNATIONAL, TOTAL HOLDINGS SAS, NISSAN JIDOSHA KABUSHIKI KAISA in the case of refusal in bringing the offender to justice under Article 14.10 of the Code of Administrative Offenses (where, as the SIP itself admits, their participation is not necessary)
- and the resolution of the IP dated 08/01/2017 in case A40-147121/2015, where he refused to allow the composer Machulenko to join the case in a dispute over the offshore’s collection of compensation for videos with his music in the absence of an offshore agreement with the composer (that is, with a proven defect plaintiff's title).
2) A situation quite interesting for procedural games arose with the suspension of proceedings on a cassation appeal (an excellent way to slow down the consideration of any cassation appeal, however, by filing an application for review of newly opened ones before filing a cassation appeal):
If, after the court has accepted for proceedings an application for review of a judicial act due to new or newly discovered circumstances, a cassation appeal is filed against this judicial act, then the court to which the complaint was filed suspends consideration of the complaint in relation to paragraph 1 of part 1 of Article 143 of the Arbitration Procedure Code of the Russian Federation until the entry into force into the legal force of a judicial act adopted based on the results of consideration of an application based on new or newly discovered circumstances.
After the adoption of a judicial act based on the results of consideration of such an application, the case with a cassation appeal is sent to the arbitration court of the cassation instance or the cassation appeal is returned.
If an application for review of a judicial act based on new or newly discovered circumstances is filed with the court of the first instance of appeal after the cassation appeal has been accepted for processing by the arbitration court of the cassation instance , the court to which the application for review of a judicial act based on new or newly discovered circumstances is filed, suspends the proceedings on this application in relation to clause 1 of part 1 of Article 143 of the Arbitration Procedure Code of the Russian Federation until the adoption of a judicial act based on the results of consideration of the cassation appeal.
3) A rather interesting situation emerged in the powers of the cassation court in terms of verifying circumstances and evidence:
28. As follows from parts 1 and 3 of Article 286 of the Code, the cassation court, when checking the legality of judicial acts adopted by the courts of the first and appellate instances, establishes the correct application of the norms of substantive law and norms of procedural law, and also checks the compliance of the conclusions of the courts of the first and appellate instances on the application of the rule of law to the circumstances established by them in the case and the evidence available in the case , based on the arguments contained in the cassation appeal and objections to the complaint.
In particular, taking into account the arguments of the party about the inconsistency of the conclusions of the courts of the first and (or) appellate instances on the application of the rule of law with the circumstances established by them in the case and the evidence available in the case , the cassation court may come to the conclusion that the courts incorrectly applied the rules of substantive or procedural law , which may be indicated in the reasoning part of the judicial act.
This continues in paragraph 31:
31. If, on the basis of Part 3 of Article 286 of the Code, a discrepancy between the conclusions of the courts of the first and appellate instances on the application of the rule of law is revealed with the circumstances established by them in the case and the evidence available in the case, the cassation court shall refer the case for a new trial.
When canceling judicial acts on this basis, the decision of the cassation court should indicate the factual circumstances of the case established by the courts of the first and appellate instances, the conclusions they made on the basis of these circumstances, as well as the reasons why the cassation court believes that the conclusions of the courts of the first and appellate instances authorities do not correspond to the circumstances of the case.
Such motives may be, in particular, contradictions between the conclusions about the application of the rule of law and the factual circumstances established by the courts , incorrect determination by the court of the nature of the disputed material legal relationship, failure of the courts to fulfill the obligation to determine the circumstances that are important for the correct consideration of the dispute.
And again in paragraph 32:
A different legal qualification of existing legal relations is not a revaluation of evidence , since it represents the application of the rules of law to the evidence already available in the case. In this case, the case may be sent for a new consideration on the basis of paragraph 3 of part 1 of Article 287 of the Arbitration Procedure Code of the Russian Federation, if in order to resolve the dispute and apply the rules of law, it is necessary for lower courts to establish circumstances that were not previously established by the courts, and there is a dispute between the parties as to whether these data took place circumstances.
in conjunction with the 33rd:
Violation by the courts of first and appellate instances of the principles of equality and adversarial rights of the parties (Article 8 and the Arbitration Procedure Code of the Russian Federation) may be grounds for the annulment of judicial acts if the violations led to the fact that during the consideration of the case, circumstances that were important for the correct application of laws and other laws regulatory legal acts.
So the standard of proof should be...
4) It’s also nice to see that the 31st paragraph codifies the well-known “Sviridenko clause” (in memory, no less) about adversarial behavior, but, as for me, it’s not a full-fledged procedural estoppel (the prohibition to prove circumstances after cancellation in cassation). not mature enough:
When deciding whether to send a case for a new trial to the arbitration courts of cassation, it is necessary to take into account that, based on the principles of equality of parties, adversarial nature, and the directness of the trial (Articles 8–10 of the Arbitration Procedure Code of the Russian Federation), a person participating in the case should not, due to repeated referral of the case to a new consideration should be freed from the adverse consequences of failure to perform the procedural actions required by the court of first instance, and it should not thereby be given the opportunity, not provided for by procedural law and contrary to the principle of legal certainty of repeated consideration of the case according to the rules of trial in the court of first instance with the submission of additional primary documents to the case file , new calculations and justifications for the stated requirements.
5) In paragraph 28 there is another interesting clause about the emancipation of cassation:
At the same time, when making a decision, the court independently determines the nature of the controversial legal relationship that has arisen between the parties to the case, as well as the norms of legislation to be applied, and may not apply the laws and other normative legal acts referred to by the persons participating in the case (clause 12 of part 2 of Article 289 of the Arbitration Procedure Code of the Russian Federation).
Taking this into account, when determining the limits of consideration of a case, the cassation court is not bound by the legal justification of the arguments of the cassation appeal and the objections presented by the parties, and is not limited in the conclusions that it makes based on the results of the inspection.
At the same time, this paragraph 12 of part 2 of Article 289 of the Arbitration Procedure Code of the Russian Federation sounds like this:
2. The decision of the arbitration court of the cassation instance must indicate:
12) laws and other regulatory legal acts that the cassation court was guided by when adopting the decision; the reasons for the adopted resolution; the reasons why the court did not apply the laws and other normative legal acts referred to by the persons participating in the case;
It is quite obvious that this norm of the Arbitration Procedure Code does not contain the words “independently”, “not connected” and “not limited”, since Part 1 of Article 286 of the Arbitration Procedure Code of the Russian Federation, specifically dedicated to this, directly excludes any kind of independence, inquisition and other obiter dictum , limiting the scope of consideration of the case by the court of cassation “ based on the arguments contained in the cassation complaint and objections to the complaint ,” not to mention the seemingly introduced professional process with the participation of certified lawyers, as well as the principles of adversarial behavior of the parties and the independence of the court.
Exactly the same thing is written for the judicial panels and the Presidium of the Supreme Court of the Russian Federation in Article 291.13 of the Arbitration Procedure Code of the Russian Federation and Article 308.12 of the Arbitration Procedure Code of the Russian Federation, respectively, however, in Part 2 of Article 291.14 and Part 2 of Article 308.11 of the Arbitration Procedure Code of the Russian Federation there are extremely significant clarifications:
2. When considering a case in cassation proceedings, the Judicial Collegium of the Supreme Court of the Russian Federation verifies the correct application and (or) interpretation of the rules of substantive law and (or) rules of procedural law by the arbitration courts that considered the case, within the limits of the arguments set out in the cassation appeal or presentation .
In the interests of legality, the Judicial Collegium of the Supreme Court of the Russian Federation has the right to go beyond the arguments set out in the cassation appeal or presentation . At the same time, the Judicial Collegium of the Supreme Court of the Russian Federation does not have the right to check the legality of judicial acts in the part in which they are not appealed , as well as the legality of judicial acts that are not appealed.
In essence, we have a creeping broad interpretation of the powers of ordinary cassation by analogy with extraordinary ones. Not otherwise, in order to reduce the burden on the extraordinary and encourage legal entropy with the imagination of the ordinary, which is spurred by the significant recognition of case law in our country (including even reviews of practice, the precedent nature of which is denied by the Constitutional Court):
By checking the correctness of the application by the courts of first and appellate instances of the norms of substantive and procedural law, the cassation court, in relation to Part 4 of Article 170 of the Arbitration Procedure Code of the Russian Federation, establishes whether the conclusions of the courts correspond to the practice of applying legal norms , determined by the decisions of the Plenum of the Supreme Court of the Russian Federation and the decisions of the Plenum of the Supreme Arbitration Court that have remained in force Court of the Russian Federation on issues of judicial practice, decisions of the Presidium of the Supreme Court of the Russian Federation and decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation that have remained in force, as well as contained in reviews of judicial practice approved by the Presidium of the Supreme Court of the Russian Federation.
The same conclusion about the rehabilitation of precedent is repeated in paragraph 30:
As documents confirming the arguments and objections to the complaint, in particular, materials of judicial practice in cases with similar factual circumstances may be presented, which, in the opinion of the applicant, substantiate the correct application of the rules of substantive or procedural law by the courts of the first and appellate instances.
6) The 30th paragraph is excellent because it allows you to add new evidence in cassation:
If a person participating in the case presented evidence to the cassation court that was not accepted by the court of the first or appellate instance, in support of the argument that the court violated or incorrectly applied the rules of procedural law , which led to the adoption of an incorrect decision or resolution (expressed, for example, in refusal of the court to satisfy the petition for the inclusion of such evidence or for the requisition of evidence ), then if the cassation court comes to the conclusion that there are grounds for canceling the judicial act provided for in Part 3 of Article 288 of the Arbitration Procedure Code of the Russian Federation, the specified evidence cannot be the basis for accepting them a judicial act on the merits of the dispute. In this case, the case is sent for a new trial to the court of the appropriate instance.
At the same time, prejudice, laws of nature and other common knowledge are legitimized:
When checking the legality of judicial acts, the cassation court has the right to base its conclusions on circumstances that are generally known (part 1 of Article 69 of the Arbitration Procedure Code of the Russian Federation), prejudicially significant (parts 2–5 of Article 69 of the Arbitration Procedure Code of the Russian Federation) and indisputable (parts 2–31 of Article 70 of the Arbitration Procedure Code of the Russian Federation).
7) An important generalized clause on procedural estoppel and adversarial issues regarding jurisdiction (similar to the rules for applying a prorogation agreement) in paragraph 34:
In particular, courts must keep in mind that a person participating in the case and duly notified of the time and place of the court hearing, arguments regarding violation of the rules of jurisdiction can only be stated when considering the case in the court of first instance. In the absence of a violation of the rules on exclusive jurisdiction, intervention of the cassation court on its own initiative in the issue of jurisdiction of the case is not allowed.
Which, generally speaking, undermines the positions of VAS-1, VAS-2, the Constitutional Court, Article 288 of the APC and the Supreme Court itself regarding the illegality of the composition of the court as an unconditional basis for cancellation (i.e., not dependent on the will of the parties).
Now there is no need to refer to the complex combination of positions of the ECHR, the Supreme Arbitration Court and the Supreme Court of the Russian Federation that legal arguments can be brought at any stage of the process, provided that they do not contain new requirements and evidence, and are also brought to the attention of persons participating in the case in advance (point 29):
When deciding whether to accept additions, written explanations to a cassation appeal or a response to a cassation appeal, the cassation courts must keep in mind that the parties have the right to provide purely legal justification for arguments and objections at all stages of the consideration of the case, if they are based on evidence available in the materials case, and if such additions, explanations to the cassation appeal do not contain either new requirements or new evidence, which, by virtue of the provisions of the Arbitration Procedure Code of the Russian Federation, cannot be considered and investigated by the court of cassation.
At the same time, upon receipt of additions or written explanations to the cassation appeal, the court verifies compliance by the person who sent them with the provisions of paragraphs 3 and 4 of part 4 of Article 277 of the Code. If these requirements are not met, the submitted documents will not be accepted by the cassation court.
So it goes…
The Plenum of the Supreme Court clarified the application of the Arbitration Procedure Code of the Russian Federation in the appeal
On June 30, the Plenum of the Supreme Court adopted a Resolution on the application of the Arbitration Procedural Code when considering cases in the arbitration court of appeal. In connection with the adoption of the document, Resolution of the Plenum of the Supreme Arbitration Court of May 28, 2009 No. 36 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal” is not subject to application.
As AG previously wrote, the document explains who has the right to file a complaint, the procedure and timing for its filing and acceptance, as well as the period and limits of consideration. Earlier, lawyer of the Law Firm "Liniya Prava" Kirill Korshunov noted that in its main points the resolution is similar to the resolution of the Plenum of the Supreme Arbitration Court, but with more detail and clarifications, which should probably reduce the number of errors during the appeal. At the same time, he added, the draft resolution contains a number of new provisions.
