Article 260. Form and content of the appeal

Ruling of the Supreme Court of the Russian Federation dated 02.22.2019 N 306-ES18-25833 in case N A55-19162/2016 By ruling of the Eleventh Arbitration Court of Appeal dated 06.25.2018 the company’s appeal was left without progress due to violations committed during its filing of the requirements of Article 260 of the Arbitration Procedure Code of the Russian Federation, namely: the complainant did not provide evidence confirming the direction or delivery of a copy of the appeal to the persons participating in the case, as well as documents confirming the payment of the state duty in the established manner and amount.

Ruling of the Supreme Court of the Russian Federation dated September 17, 2019 N 305-ES19-14303 in case N A40-238644/2018

In the cassation appeal, the Company, referring to the incorrect application by the courts of the norms of substantive (clause 1 of Article 1, Article 10, Article 165.1 of the Civil Code of the Russian Federation) and procedural law (Articles 117, 260, 261 of the Arbitration Procedure Code of the Russian Federation), asks to cancel the ruling of the court of appeal and decision of the district court and send the case to the Ninth Arbitration Court of Appeal for consideration on the merits of the appeal against the decision of the Moscow Arbitration Court dated December 24, 2018.

Ruling of the Supreme Court of the Russian Federation dated November 26, 2019 N 302-ES19-22068 in case N A74-7088/2019

By the ruling of the arbitration court of appeal dated July 18, 2019, the complaint was left without progress on the basis of paragraph 2 of part 4 of article 260 of the Arbitration Procedure Code of the Russian Federation. By decision of the Third Arbitration Court of Appeal dated August 14, 2019, the appeal was returned to the applicant due to failure to eliminate the identified deficiencies within the prescribed period.

Ruling of the Supreme Court of the Russian Federation dated 01.02.2019 N 307-ES18-24104 in case N A56-37486/2018

As can be seen from the appealed judicial acts, the appeal was filed by the company in violation of the requirements established by paragraph 3 of part 4 of Article 260 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Code), namely, a document was not submitted confirming the direction or delivery to other persons participating in the case, copies of the appeal and documents that they do not have. In this regard, the appeal was rightly left by the appellate court without progress, the company was asked to correct the violations committed by 08/03/2018 (inclusive), indicating the consequences of not correcting these violations.

Ruling of the Supreme Court of the Russian Federation dated April 2, 2019 N 306-ES19-3194 in case N A55-31449/2017

Refusing to satisfy the petition to restore the missed deadline for filing an appeal, the appellate court assessed the given reasons for missing the deadline and came to the conclusion that they were not valid and did not objectively prevent the filing of an appeal within the period established by law. In this case, the court was guided by the legal positions set out in paragraph 14 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal”, paragraph 34 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 N “On procedural deadlines”, and took into account that the initial appeal, left without progress, was returned to the applicant due to failure to eliminate violations of the requirements of paragraph 3 of part 4 of Article 260 of the Arbitration Procedure Code of the Russian Federation.

Ruling of the Supreme Court of the Russian Federation dated April 25, 2019 N 306-ES19-5514 in case N A72-374/2017

Having disagreed with the said judicial act, the company filed an initial appeal, which, by the ruling of the Eleventh Arbitration Court of Appeal dated September 12, 2018, was left without progress until October 10, 2018 due to the applicant’s violation of the requirements of paragraph 3 of part 4 of Article 260 of the Arbitration Procedure Code of the Russian Federation ( hereinafter referred to as the Code). Due to the fact that the company, within the period established by the court, did not eliminate the circumstances that served as the basis for leaving the complaint without progress, by a ruling dated October 11, 2018, the appellate court returned the initial appeal.

Ruling of the Supreme Court of the Russian Federation dated April 25, 2019 N 309-ES19-5392 in case N A60-61654/2017

Refusing the Company to restore the missed deadline for an appeal and returning the complaint, the appeal court was guided by Articles 117, 259, 264 of the Arbitration Procedure Code of the Russian Federation and proceeded from the following: the appeal court, in its ruling dated 08/10/2018 on leaving the appeal without movement, set a deadline for the Company to eliminate violations of the requirements provided for in Article 260 of the Arbitration Procedure Code of the Russian Federation until 09/06/2018, including the time for delivery of postal correspondence, as indicated in this definition; the plaintiff's sending of documents on 09/05/2018 in pursuance of the ruling dated 08/10/2018, received by the appeal court on 09/14/2018, that is, after the return of this complaint by the court of appeal by the ruling dated 09/07/2018, cannot be a valid reason for missing the procedural deadline for filing a second appeal by the Company, since the Company did not provide evidence of its lack of opportunity to eliminate the shortcomings within the period established by the court.

Ruling of the Supreme Court of the Russian Federation dated May 31, 2019 N 301-ES19-7438 in case N A28-3859/2018

Returning the company's appeal against the decision of the court of first instance, the court of appeal, guided by the provisions of Articles 110, 122, 260, 264 of the Arbitration Procedural Code of the Russian Federation, Articles 333.21, 333.37 of the Tax Code of the Russian Federation, proceeded from the fact that the company within the period established by the court the circumstances that served as the basis for leaving the complaint without progress have not been fully eliminated. Thus, the company did not provide evidence of payment of the state fee for filing an appeal.

Ruling of the Supreme Court of the Russian Federation dated July 1, 2019 N 307-ES19-9826 in case N A56-116640/2018

By the ruling of the Thirteenth Arbitration Court of Appeal dated December 27, 2018, the deadline for filing an appeal by an administrative body against the decision of the court of first instance was restored; the complaint was left without progress, as filed in violation of part 3, paragraph 3 of part 4 of article 260 of the Arbitration Procedure Code of the Russian Federation.

Ruling of the Supreme Court of the Russian Federation dated 02.02.2017 N 309-ES16-19552 in case N A60-19496/2016

Returning the appeal, the court of appeal, guided by the provisions of articles , , 257, 260, 264 of the Arbitration Procedural Code of the Russian Federation, the explanations set out in paragraph 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal,” came to the conclusion that the applicant is not a person who has the right to appeal a judicial act.

Ruling of the Supreme Court of the Russian Federation dated March 10, 2017 N 307-ES16-17420 in case N A56-85969/2014

By the ruling of the Thirteenth Arbitration Court of Appeal dated October 5, 2015, the deadline for filing an appeal was restored and the appeal was left without progress due to a violation of the requirements of Part 3 and paragraphs 2, 3 of Part 4 of Article 260 of the Arbitration Procedure Code of the Russian Federation. By the decision of the court of appeal dated November 5, 2015, the appeal was returned on the basis of paragraph 5 of part 1 of Article 264 of the Arbitration Procedure Code of the Russian Federation due to the failure to eliminate the circumstances that served as the basis for leaving the complaint without progress.

Commentary on Article 260 of the Arbitration Procedure Code of the Russian Federation

1. If, after accepting the appeal for proceedings, the court finds out that any of the documents named in Part 4 of Art. 260 of the Arbitration Procedure Code of the Russian Federation, the following must be taken into account.

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Failure to attach a copy of the disputed judicial act does not prevent the consideration of the appeal, since this judicial act is available in the case materials.

In the absence of evidence of sending copies of the appeal to other persons, as well as copies of documents that they do not have, the appellate court issues a ruling in which it sets a deadline for submitting such evidence. The trial of the appeal may be postponed due to this circumstance.

If, after accepting the appeal for proceedings, it is established that the complaint has not been signed, or doubts arise as to whether the person who signed the complaint has the right to sign it, the appellate court invites the applicant to provide evidence of such person’s authority or subsequent approval by the applicant of the actions of the person, who signed the complaint. In case of failure to provide such evidence, the appeal is left without consideration on the basis of clause 7 of Art. 148 Arbitration Procedure Code of the Russian Federation.

This is important to know: How to appeal an appeal against a court decision on a loan

See: paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N 36 “On the application of the Arbitration Procedure Code of the Russian Federation when considering a case in the arbitration court of appeal” (as amended by the Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 61, dated March 24, 2011 N thirty).

2. When applying the provisions of the Arbitration Procedure Code of the Russian Federation, which provide for the possibility of filling out forms posted on the official website of the arbitration court on the Internet, submitting documents to the arbitration court in electronic form (in particular, part 1 of article 125, part 2 of article 126, part 1 article 131, part 1 article 159, part 1 and 4 article 260, part 4 article 262, part 1 and 5 article 277, part 4 article 279, part Parts 1 and 3 of Article 294, Part 4 of Article 297, Parts 1 and 5 of Article 313), when accepting and considering appeals, the courts must proceed from the following.

When deciding whether to accept an appeal for proceedings, the court determines whether it meets the formal requirements for its form and content. In this regard, the judge carries out a preliminary check of the information contained in the application, including checking whether the application is signed and whether the signature belongs to an authorized person. In case of non-compliance with the established requirements, the provisions regarding abandonment of the complaint are subject to application.

During the consideration of the case, the court determines whether the appeal, which was received by the court electronically, was actually filed by the person who signed it. When preparing a case for trial, the court may invite this person, in order to confirm the specified circumstance, to appear at a preliminary court hearing, court hearing, or to submit to the court the original document submitted by him within the period established by the court. The fact that a document received by the court in electronic form was signed by the person who submitted it may also be established by the court on the basis of other documents submitted by this person. If this circumstance is not confirmed as a result of the measures taken by the court, the court leaves the corresponding appeal without consideration on the basis of clause 7 of part 1 of Art. 148 Arbitration Procedure Code of the Russian Federation.

At the same time, as follows from Part 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, the court may require the presentation of original written evidence if copies of such evidence were presented in electronic form.

See: clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 N 12 “On some issues of application of the Arbitration Procedure Code of the Russian Federation as amended by Federal Law No. 228-FZ “On Amendments to the Arbitration Procedure Code of the Russian Federation”.

3. Since the Code does not provide for the electronic filing of an application to secure a claim, an application to secure property interests (Articles 92, 99), or a petition to suspend the execution of judicial acts (Articles 283, 298), such an application ( petition) can be filed with the court only on paper. A petition for securing a claim set out in an appeal filed by filling out a form posted on the official website of the arbitration court on the Internet is considered not to have been filed with the arbitration court, while the ruling on acceptance of the appeal indicates that such a petition can only be filed on paper.

See: clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 N 12 “On some issues of application of the Arbitration Procedure Code of the Russian Federation as amended by Federal Law No. 228-FZ “On Amendments to the Arbitration Procedure Code of the Russian Federation”.

4. On documents confirming information about the location or place of residence of the plaintiff and defendant and (or) the acquisition by an individual of the status of an individual entrepreneur or the termination by an individual of activities as an individual entrepreneur, see paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/17/2011 N 12 “On some issues of application of the Arbitration Procedure Code of the Russian Federation as amended by Federal Law N 228-FZ “On Amendments to the Arbitration Procedure Code of the Russian Federation.”

Procedure, form, content and deadlines for filing an appeal and presentation

According to Art. 320 of the Code of Civil Procedure of the Russian Federation, decisions of the court of first instance that have not entered into legal force can be appealed on appeal in accordance with the rules provided for by Chapter 39 of the Code of Civil Procedure of the Russian Federation.

This is important to know: Leaving an appeal without consideration under the Code of Civil Procedure of the Russian Federation

Necessary elements of the right to appeal and initiate appeal proceedings:

1. the presence of a subject vested with appropriate powers (to appeal);
2. existence of an object of the right of appeal;
3. compliance with the deadline for filing an appeal and the procedure for exercising the right of appeal.

The right to appeal a court decision belongs to:

• parties and other persons involved in the case;
• persons who were not involved in the case and the question of whose rights and obligations were resolved by the court;
• the right to bring an appeal belongs to the prosecutor participating in the case.

Persons who were not involved in the case and the question of the rights and obligations of which were resolved by the court may include:

1. third parties;
2. successors of the parties and third parties making independent claims regarding the subject of the dispute;
3. persons who have applied to the court for the protection of the rights, freedoms and legitimate interests of other persons;
4. persons who were not involved in the process if their rights and obligations are affected by the judge’s decision, as well as
5. representatives of citizens and organizations in the presence of a properly executed document confirming their authority to perform such a procedural action.