8 August, 2016
NEW PROCEDURAL RULES FOR FASTER EXAMINATION OF CIVIL CASES IN CASSATION INSTANCE COURT
July 13, 2016
On July 13, amendments to the Civil Procedure Law entered into force aiming to ease the workload of the cassation instance court, i.e. the Department of Civil Cases of the Supreme Court, by removing the cases of minor importance, in order to reduce examining times of civil cases and to focus resources on tasks inherent to the Supreme Court – the unification of the case law and the development of the law.
Within the elaboration process of the amendments to the Civil Procedure Law due account has been taken of the fact that a dispute at the cassation court is not adjudged on the merits, but the court rather decides on correct understanding and application of the law. To this end, in the cassation instance the decisive role is given to public interests, rather than to interests of parties.
The Most Significant Amendments to the Civil Procedure Law
Grounds and Content of a Cassation Complaint, and Submitting a Cassation Complaint
- A judgment of a first instance court may be appealed in cassation in cases about invalidation of decisions of the meeting of members (shareholders) of capital companies. A judgement of an appellate instance court may be appealed in cassation if the court has applied incorrectly the norm of substantive law, has violated the norm of procedural law or, in examining a case, has acted outside its competence. Since according to the law incorrect application of norms of substantive law includes an incorrect interpretation of such norms, a separate reference indicating that a judgment may be appealed also in cases when the lower instance court has incorrectly interpretated the norms of law, is superfluous and therefore has been excluded from the norms which set the grounds for cassation (Section 450 (3) of the Civil Procedure Law).
- Until now it was not explicitly provided by the law, if a cassation complaint can be submitted regarding any incorrect application of norm of substantive law or as defined in a case of a breach of norms of procedural law – only in case if an incorrect application of a norm has led or may have led to an erroneous adjudication of a case. The amendments to the law provide that an incorrect application of norms of substantive law may serve as the basis for an appeal pursuant to cassation procedures only if such incorrect application has led or may have led to an erroneous examination of the case (Section 451 (2) of the Civil Procedure Law).
- The law will provide the right of a collegium of the judges of the cassation instance to refuse to initiate cassation court proceedings, if there are no obvious grounds to consider that the outcome of the case established by the appealed judgment is incorrect and that the particular case is of essential importance to the unification of the case law or the development of the law. For that reason the law is also complemented by the rule that if a submitter of the cassation complaint is of the opinion that the examination of cassation complaint has essential importance to the unification of the case law or the development of the law, he has to state this opinion in reasoned manner in the cassation complaint (Section 453 (1) of the Civil Procedure Law).
- Procedure for signing and submitting a cassation complaint has been specified in accordance with the case law of cassation instance. According to the new regulation the cassation complaint shall be signed by a submitter – natural person, official of the legal person who acts within the scope of powers conferred upon him by thelaw, articles of association or by-law, or an advocate. If the cassation complaint has been signed by the official of the legal person, the document, which certifies his rights to represent the legal person, shall be attached to the complaint. If the cassation complaint is signed by an advocate, an authorization and an advocate`s order shall be attached to a cassation complaint. If these documents are not attached to the cassation complaint and have not been submitted to the court in advance, the complaint shall not be accepted (Section 453 (2) and (6) 2) of the Civil Procedure Law).
- A defined end-date: co-participants in the case and third persons who participate in the proceedings on the same side as the person, who has submitted a cassation complaint, may join in the submitted complaint. They have to do it within 30 days from the date when a copy of a cassation complaint was sent (Section 461 (1) of the Civil Procedure Law).
- A security deposit for the submission of the cassation complaint has been increased. From now on it shall be paid in the amount of EUR 300 instead of EUR 284.57 (Section 458 (1) of the Civil Procedure Law).
- A security deposit in the amount of EUR 300 has been introduced for the submission of an application on new initiation of case due to newly discovered circumstances. If an appealed court judgment, in full or in part, is revoked or the application is withdrawn prior to its hearing, the security deposit shall be refunded to a submitter. It has to be refunded also if the court rejects to accept an application due to the fact that the relevant authorization, which certifies the rights of the representative, is not attached to the application, or a security deposit is not paid in amount or in accordance with the procedures laid down in the law (Section 478 (7) and (8) of the Civil Procedure Law).
Refusal of Initiation of Cassation Court Proceedings
- Grounds for a refusal to initiate cassation court proceedings have been specified. Previously, if a cassation complaint formally complied with the formal requirements referred to in the law and if the appellate instance court had not allowed a breach of a norm of procedural law which may have led to an erroneous adjudication of a case, the collegium of the judges could refuse to initiate cassation court proceedings, if no doubts were arisen regarding the rule of law of the judgment of the appellate instance court and the case to be examined had no meaning in establishment of the case law. From now on, an initiation of cassation proceeding may be refused by the Panel of judges, if after assessing the arguments of the cassation complaint there are no obvious grounds to consider that the outcome of the case established by the appealed judgment is incorrect and that the particular case is of essential importance to the unification of the case law or the development of the law(Section 4641 (2) 2) of the Civil Procedure Law).
- Amendments to the Civil Procedure Law include new grounds to refuse initiation of a cassation court proceedings: in regard to disputes of a financial nature where the share of judgment subject to appellation in cassation is less than EUR 2000 and the particular case is of no essential importance to the unification of the case law or the development of the law(Section 464 (3) of the Civil Procedure Law).
Refusal to Hear Ancillary Complaints
- Amendments to the Civil Procedure Law ensure that the Panel of judges in assignment sitting by decision that is drawn up as a resolution may refuse to accept an application of ancillary complaint, if the Panel of judges has no obvious grounds to consider that the appealed decision will be, in full or in part, revoked or amended while examining an ancillary complaint. The decision of the Panel of judges should be unanimous. In this case, the state fee shall not be repaid (Section 464 (4) and (7) of the Civil Procedure Law).
- According to the Civil Procedure Law the cassation instance may review applications on cassation in written procedure. The date when the full judgement is drawn up is the date that has been announced to persons who have submitted a complaint as the date when a true copy of the judgment may be received in the court chancery. New amendments introduce that if the court finds that due to complexity of the case more time is necessary to elaborate the judgment, it may extend the term stated, but not longer than for two months (Section 4643 (21) of the Civil Procedure Law).
- Amendments to the Civil Procedure Law ensure an opportunity to the cassation instance to approve in a simplified manner the judgments of lower instance courts that contain legally relevant findings, thus promoting the establishment of these findings in the case law. If a court, in examing a case, recognizes that the justification included in the contested judgment is correct, it may indicate in the reasoned part of the judgment that it agrees with the reasoning of the judgment and these arguments may not be mentioned repeatedly in the reasoned part of the judgement (Section 475 (6) of the Civil Procedure Law).
- If, on the other hand, the court recognizes that the contested judgment does not comply with the case law of the Supreme Court and the derogation from the case law has not been justified, the Department of Civil Cases can give a judgment indicating in its reasoned part the case law that has not been complied with or whose noncompliance is not justified. In this case, the Department may give the judgment without a descriptive part and without any further arguments on norms of law infringed by the court (Section 475 (7) of the Civil Procedure Law).
Re-examining of Cases due to Newly-Discovered Circumstances
- Prior to the amendments to the Civil Procedure Law, an application on new initiation of case due to newly-discovered circumstances was examined by the court that is one instance higher than the court who gave the contested judgment. The new rules provide the submission of application and its examination in the same court whose judgment or decision has completed the examination of the case on the merits. Thus the Department of Civil Cases will be able to examine these applications only in exceptional circumstances, because the cassation instance usually does not examine the case on the merits. Such exceptional case could be the submission of application on decision adopted by the cassation instance terminating the proceedings. If a court determines that there are newly-discovered circumstances, it shall revoke the appealed judgment or decision in full or as to part thereof and refer the case for it to be reexamined in the same or lower instance court (Section 478 (1) and 482 (2) of the Civil Procedure Law).
- Prior to the amendments to the Civil Procedure Law, a person for submitting an application was not obliged to pay the state fee or security deposit. In accordance with the new rules, a security deposit in amount of EUR 300 shall be paid (Section 478 (7) of the Civil Procedure Law).
- The court shall not accept an application on re-examining of case due to newly-discovered circumstances not only in cases where the facts provided in application cannot be recognized as circumstances that are newly-discovered, or application has been re-submitted and the circumstances have not changed significantly, but also if relevant authorization, which certifies the rights of the representative, is not attached to the application, or a security deposit is not paid in amount or in accordance with procedures laid down in the law. In these cases the decision of a court may not be appealed (Section 478 (4) and (5) of the Civil Procedure Law).
- The prohibition for a judge to participate in repeated examination of case provided in the law is not applicable regarding the examination of an application (Section 481 (2) of the Civil Procedure Law).
- The transitional provisions of the Civil Procedure Law state that the court which has started to examine an application till 1 August, 2016, shall complete the proceedings. They also regulate what happens with those applications on re-examining of cases due to newly-discovered circumstances that have been given to the Chamber of Civil Cases of the Supreme Court. On proposal of the Chair of the Chamber of Civil Cases, the Chief Justice of the Supreme Court decides a question of giving a case under examination of the Chamber of Civil Cases to another instance court, because it is not possible to ensure the examination of the case till 31 December, 2016. The decision is taken as a resolution and it is not appealable (See Paragraph 116 of Transitional Provisions).
Information prepared by
Division of Communication of the Supreme Court
E-mail: firstname.lastname@example.org, telephone: +371 67020396, +371 28652211