Which rulings should the arbitration court appeal against? Appealing rulings of arbitration courts

Appealing a decision of an arbitration court of first instance, as a procedural procedure, depends on what kind of decision is being appealed and in what order it was made.

Highlight:

appealing final judicial acts adopted on the merits of the case (dispute);
appealing interim court decisions (rulings) adopted during the trial on certain procedural issues;
appeal in a simplified manner against decisions made within the framework of summary proceedings.

The key difference in these procedures is the timing of the appeal and some other nuances of the process. In particular, the consideration of complaints against rulings blocking the progress of the case is carried out in an accelerated manner - 15 days. The appeal of decisions made in a simplified manner is simplified and faster: as a general rule, participants trial complaints are not invited for consideration, and additional evidence is not accepted.

The Arbitration Procedure Code of the Russian Federation provides for four stages of appeal:

Second cassation.
Supervision.

Decisions of the court of first instance that have not entered into force are appealed through the appellate procedure. Since some judicial acts are provided for immediate entry into force, they cannot be appealed. This is typical, for example, in cases of challenging legal acts.

Features of the appeal:

It is possible to file a complaint both against the decision as a whole and against some part of it.
Final court decisions are appealed according to the general rules of appeal; determinations have their own procedure, which contains some exceptions from general rules. A complaint against a ruling is allowed only in two cases: either the ruling blocks the progress of the case, or the possibility of appeal is directly provided for it.
An appeal may be filed by participants in the process, and in cases provided for by law, by other persons. Depending on the subject of the dispute and the specifics of the arbitration case, the right to appeal is enjoyed by plaintiffs and defendants, applicants and interested parties, the prosecutor's office, government agencies, third parties with independent claims, as well as persons whose rights and interests are affected by the appealed judicial act.
The complaint is filed through the court, whose decision is appealed, and considered by the appellate court. Such courts operate in the district territorial principle: one court for several regions of Russia.
The period for appealing the decision of the arbitration court of first instance is 1 month. But in some cases, the Arbitration Procedure Code of the Russian Federation provides for other deadlines. This depends, first of all, on the category of the case and the period established by law for the judicial act to enter into force. For example, in administrative matters, subject to arbitration, specified period reduced to 10 days. The missed deadline can be restored if there are good reasons for missing the deadline and the appropriate petition is filed no later than 6 months after the adoption of the appealed judicial act.
Form and content of the appeal - Art. 260 Arbitration Procedure Code of the Russian Federation. The complainant's task is not only to comply with these requirements, but also to forward copies of the complaint and attachments to other participants in the process.
The period for consideration of a complaint is 2 months. It can be extended up to 6 months. Complaints against rulings blocking the progress of a case are considered expeditiously - within 15 days.
Possible decisions based on the results of the appeal include canceling the appealed decision, making changes to it, leaving the decision in force. In the first two cases, the court must make a new decision. When appealing determinations possible solutions in an appeal - refusal to satisfy the complaint or cancellation of the ruling with the referral of the issue for a new consideration or its resolution on the merits.

Depending on the situation, cassation can be either the first or the second stage of appeal. In cassation, the decisions of the arbitration arbitration of the first instance that have entered into force, as well as decisions made in the appeal, are appealed. In addition, court orders are reviewed by cassation. The definitions of the cassation authority itself may also be the object of appeal, but only if this is expressly provided for by the APC.

Procedural features:

The same persons who have the right to appeal have the right to cassation.
The main cassation instance is the district court corresponding to its territory (there are 10 of them in total).
The complaint is sent to cassation through the court, whose decision is being appealed.
The appeal period is 2 months after the decision enters into force. When making a cassation appeal against the final decisions of the arbitration tribunal of first instance, the appeal period is actually 3 months from the date of the decision, but provided that no appeal has been filed. If there was an appeal, then the 2-month period is calculated from the date of the decision - the appeal decision - based on the results of consideration of the complaint in this instance. In cases challenging regulatory legal acts, the cassation period is 1 month from the date the appealed decision comes into force. A similar period is provided in some other cases. To correctly determine the period of appeal (it may vary), it is necessary to take into account the category and specifics of the case, the type, procedure for the adoption and entry into force of the appealed judicial act, as well as the use or non-use of the right to appeal. The missed deadline can be restored in the same way as in the appellate instance.
Form and content of the complaint - Art. 277 Arbitration Procedure Code of the Russian Federation.
Copies of the complaint and its attachments must be sent to other participants in the process.
The procedure for appealing rulings adopted in arbitration of the first and appellate instances differs from the general rules, having some features. They can be appealed if such a possibility is directly provided for by the APC or the ruling blocks the progress of the case. The period for appealing a ruling is 1 month after its issuance, unless otherwise provided.

Second cassation

In the procedure of the so-called second cassation, complaints against decisions of the court of the first, appellate and cassation instances are considered.

If we consider the second cassation as the third stage of appeal, then this instance considers complaints:

On the ruling on the return of the cassation appeal. Cases are considered by the panel of the court whose decision is being appealed within 10 days.
To other rulings of the cassation authority, if their appeal is expressly provided for by the APC. Considered by the court whose decision is being appealed, but by different judges.
On judicial acts that have entered into force and have passed the first cassation. Such complaints are the subject of consideration by the Judicial Collegium of the Supreme Court of the Russian Federation in cassation proceedings.

Supervision

The supervisory authority is the Supreme Court of the Russian Federation. Supervisory complaints are directly considered by the Presidium of the RF Armed Forces.

By way of supervision the following are appealed:

judicial acts (decisions, rulings) of the Judicial Collegium of the Armed Forces of the Russian Federation that have entered into force, adopted in the procedure for considering the case in the first instance and undergoing appeal, as well as appellate rulings issued when appealing such judicial acts;
cassation rulings of the Investigative Committee of the Armed Forces of the Russian Federation.

Peculiarities:

The period for appealing by way of supervision is 3 months after the appealed decision comes into force. It is possible to restore this period if there are good reasons and the 6-month deadline for filing the relevant petition is observed (Part 5 of Article 308.1 of the Arbitration Procedure Code of the Russian Federation).
Contents of the complaint - Art. 308 part 2 of the Arbitration Procedure Code of the Russian Federation.
Before being sent to the Presidium of the Supreme Court of the Russian Federation, the complaint and the case materials are examined by a single judge of the Supreme Court, who decides on the further movement of the complaint.
The period for supervisory review of a complaint is 2 or 3 months, depending on whether only the complaint or the arbitration case as a whole is being considered. The 3-month period can be extended for another two months.
The complaint with the arbitration case is considered by the Presidium of the Supreme Court of the Russian Federation with the invitation of the participants in the case to the meeting.
The grounds for upholding the complaint are exceptional. Cancellation or modification of a contested judicial act is possible if the decision violates constitutional rights and freedoms, generally recognized norms international law, public interests, rights and interests of an unlimited number of persons or is contrary to the uniform application and interpretation of legal norms. When preparing a complaint, it is necessary to refer to such grounds in your demands and confirm their existence with evidence.
The decision of the Presidium of the RF Supreme Court is not subject to appeal. Further, the case can only be reconsidered due to newly discovered or new circumstances.

Appealing decisions in the arbitration process requires a clear understanding of all stages of this procedure, the order established for each of them, as well as strict adherence to deadlines. It is the violation of deadlines and order that often becomes main problem achieving the desired goals.

What is important to consider:

The nature of the arbitration case is the subject of the dispute or application, the procedure for the trial (general, order, simplified, special jurisdiction of the arbitration court, civil or administrative case, proceedings to challenge regulations, processes related to arbitration, etc.).
What kind of judicial act is being appealed - decision, decree, ruling, type of ruling, court order. The appeal procedure, the application of general or special rules, the determination and compliance with deadlines directly depend on this.
The judicial act of which authority is being appealed - first, appeal, first or second cassation. There may be situations when it is necessary to appeal not one act, but several or a chain of acts adopted one after another. For example, it is often necessary to review both the main decision in a case (first instance) and the appellate decision thereon. In this regard, you need to be very careful about the content of the complaint and clearly formulate the requirements.
Do you have the right to appeal a specific judicial act? In cases where determinations are appealed, this must always be analyzed by everyone, because not every determination is subject to appeal. In other situations, only direct participants in the process - applicants, the other party, plaintiffs and defendants - have an unconditional right.
Goals and objectives of the appeal. Here it is important to calculate your strength, financial capabilities, and time investment. All stages of appeal are a very long process, and if a lawyer is involved, it is expensive.

A lot of cases go through appeal and cassation. Few reach the supervisory stage, especially given the limited grounds for overturning or changing appealed decisions.

Ideally, the process of appealing a specific judicial act should be initially thought out and developed in the form of a certain scheme for passing through each stage, if there are several of them. This is especially true for complaints about final court decisions that are made on the merits of the case (dispute). In this case, the order and timing, and the whole process, will always be in front of your eyes, which will allow you to avoid serious mistakes.

IN recent years judicial system The Russian Federation is undergoing a reform process, in particular related to the unification of the highest judicial authorities. This affects changes in procedural legislation. Since 2014, the procedure for cassation and supervisory review of arbitration awards has been seriously changed. Now it is not the Supreme Arbitration Court, but the Supreme Court of the Russian Federation that is the superior authority in relation to all other arbitration courts. Many changes to arbitration procedural legislation are still planned to be adopted. Compliance with the appeal procedure presupposes strict adherence to the current provisions of the Arbitration Procedure Code of the Russian Federation, therefore the preparation and submission of a complaint, as a procedure, must be checked and rechecked for compliance with current standards. Most effective way To eliminate mistakes, entrust the appeal to a lawyer or attorney whose practice is related to the conduct of arbitration cases.

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Commentary on Article 188 of the Arbitration Procedural Code of the Russian Federation

1. One of the guarantees for the protection of the rights of participants in the process is the possibility of appealing the rulings of the arbitration court. The ruling of the arbitration court, issued in the form of a separate judicial act, can be independently appealed, regardless of the appeal of the judicial act, which ends the consideration of the case on the merits, if this is directly provided for by the Arbitration Procedure Code of the Russian Federation, and also if this definition hinders further progress of the case.

The definitions, the appeal of which is provided for by the Arbitration Procedure Code of the Russian Federation, include the following:

1) to transfer the case to another arbitration court (Part 3 of Article 39);

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2) on the refusal to satisfy the request for a co-plaintiff to join the case, to involve a co-defendant (part 7 of article 46);

3) about replacing a party with its legal successor or about refusing to replace it (Part 2 of Article 48);

4) on the refusal to intervene in the case of a third party making independent claims regarding the subject of the dispute (Part 4 of Article 50);

5) refusal to intervene in the case of a third party who does not make independent claims regarding the subject of the dispute (Part 3.1 of Article 51);

6) on the imposition of a court fine for failure to fulfill the obligation to present the evidence requested by the court for reasons recognized by the arbitration court as disrespectful, or failure to notify the court of the impossibility of presenting evidence at all or within the prescribed period (Part 12 of Article 66);

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7) on securing a claim or refusing to secure a claim (Part 7, Article 93);

8) on counter security (part 3 of article 94);

9) on the cancellation of the security for the claim and on the refusal to cancel the security for the claim (Part 5 of Article 97);

10) on the distribution of court costs, attribution of court costs to a person who abuses his procedural rights, and other issues about legal costs(Art. 112);

11) on refusal to restore the missed procedural period (Part 6 of Article 117);

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12) on the refusal to extend the procedural period appointed by the arbitration court (Part 2 of Article 118);

13) on the imposition of a judicial fine (Part 6 of Article 120);

14) about return statement of claim(Part 4 of Article 129);

15) on the refusal to satisfy the petition to combine cases into one proceeding, to separate the claims into separate proceedings (Part 7 of Article 130);

16) on approval of a settlement agreement or refusal to approve a settlement agreement (Parts 8, 9, Article 141);

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17) on suspension of proceedings in the case, on refusal to resume proceedings on the case (Part 2 of Article 147);

18) to leave the statement of claim without consideration (Part 2 of Article 149);

19) on termination of proceedings in the case (Part 2 of Article 151);

20) on refusal to accept an additional decision of the arbitration court (Part 5 of Article 178);

21) on clarification of the decision, on the correction of clerical errors, typos, and arithmetic errors (Part 4 of Article 179);

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22) on applying the decision for immediate execution (Part 5 of Article 182);

23) on indexation of awarded sums of money, about refusal to index (Part 3 of Article 183);

24) on the return of an application for the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a judicial act within a reasonable time (Part 4 of Article 222.6);

25) in the case of challenging the decision of the arbitration court (Part 5 of Article 234);

26) in the case of extradition writ of execution for forced execution of an arbitration court decision (Part 5 of Article 240);

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27) in the case of recognition and enforcement of a decision of a foreign court or a foreign arbitration award (Part 3 of Article 245);

28) on leaving the appeal without progress (Part 1 of Article 263);

29) on the return of the appeal (part 4 of article 264) or cassation complaint (part 3 of article 281);

30) on termination of proceedings on an appeal (part 4 of article 265) or on a cassation appeal (part 4 of article 282);

31) on suspension of execution of a judicial act or refusal to suspend execution (Part 3 of Article 283);

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32) on the return of an application for review of a judicial act due to newly discovered circumstances (Part 3 of Article 315);

33) on refusal to satisfy an application for review of a judicial act due to new or newly discovered circumstances (Part 5 of Article 317);

34) on the restoration of the missed deadline for presenting a writ of execution for execution (Part 3 of Article 322);

35) on the issuance of a duplicate of the writ of execution or on the refusal to issue a duplicate (Part 4 of Article 323);

36) on deferment or installment plan for the execution of a judicial act, on changing the method and procedure for its execution, or on refusal to satisfy the application (Part 4 of Article 324);

37) about reversing the execution of a judicial act or about refusing to reverse the execution (Part 4 of Article 326);

38) on suspension or termination enforcement proceedings or refusal to suspend or terminate enforcement proceedings (Part 4 of Article 327).

The ruling of the arbitration court may prevent further progress of the case. In this case, it can also be appealed.

IN information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 82 “On some issues of application of the Arbitration Procedural Code Russian Federation» it is clarified that the decision to leave the statement of claim without progress is not subject to appeal. However, in the Definition Constitutional Court RF dated July 13, 2000 N 194-O, it was noted that the decision to leave the application without progress can be appealed, since it prevents further progress of the case.

With regard to the ruling on the return of the counterclaim, the Presidium of the Supreme Arbitration Court of the Russian Federation explained that this ruling can be appealed by analogy with the ruling on the return of the statement of claim (Part 4 of Article 129 of the Arbitration Procedure Code of the Russian Federation).

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2. If the Arbitration Procedure Code of the Russian Federation does not provide for the possibility of independently appealing the ruling of the arbitration court, the persons participating in the case have the right to raise objections to such a ruling when appealing a judicial act that ended the consideration of the case on the merits. This norm fully applies to protocol definitions.

However, there are situations when the arbitration court combines several rulings in one judicial act, some of which can be independently appealed, while others cannot. In this case, such a judicial act can be appealed to a higher court only in relation to those rulings that can be appealed separately from the judicial act that ends the consideration of the case on the merits<1>.

3. As a general rule, the period for filing a complaint against a ruling of the arbitration court of first instance should not exceed one month from the date of the ruling. Exceptions may be provided for by the Arbitration Procedure Code of the Russian Federation. For example, part 6 of Art. 120 of the Arbitration Procedure Code of the Russian Federation establishes that an arbitration court ruling on the imposition of a judicial fine can be appealed within 10 days from the date the person on whom the judicial fine was imposed receives a copy of the ruling.

Within 10 days from the date of issuance, rulings made by an arbitration court when considering insolvency (bankruptcy) cases and the appeal of which is provided for by the Arbitration Procedure Code of the Russian Federation and other federal laws governing insolvency (bankruptcy) issues, separately from the judicial act that ends the consideration, can be appealed. matters on the merits. The Plenum of the Supreme Arbitration Court of the Russian Federation clarified that the provisions of Part 3 of Art. 223 of the Arbitration Procedure Code of the Russian Federation and Art. 61 Federal Law“On insolvency (bankruptcy)” do not apply to judicial acts specified in paragraph 1 of Art. 52 of this Federal Law (decisions to declare a debtor bankrupt and to open bankruptcy proceedings, to refuse to declare a debtor bankrupt, decisions to introduce financial rehabilitation, to introduce external management, to terminate bankruptcy proceedings, to leave an application for declaring a debtor bankrupt without consideration, on approval of the settlement agreement), since these judicial acts end bankruptcy cases on the merits.

In accordance with Part 3 of Art. 223 of the Arbitration Procedure Code of the Russian Federation and Art. 61 of the Bankruptcy Law, decisions of the arbitration court made based on the results of the arbitration court's consideration of applications, petitions and complaints of persons participating in a bankruptcy case, when preparing the case for trial, as well as when establishing the validity of creditors' claims, can be appealed.<1>.

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<1>Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 8, 2003 No. 4 “On some issues related to the implementation of the Federal Law “On Insolvency (Bankruptcy)” (clause 14).

Shortened terms of appeal in the appellate procedure (10 days) are established by the Arbitration Procedure Code of the Russian Federation also for rulings on the transfer of a case under jurisdiction or on the refusal to transfer a case under jurisdiction (Part 3 of Article 39), on the refusal to satisfy a petition for a co-plaintiff to join the case, on involvement of a co-defendant (Part 7, Article 46), on the refusal to join the case of a third party who is making independent claims regarding the subject of the dispute (Part 4, Article 50), on the refusal to join in the case of a third party who is not making independent claims regarding the subject dispute (Part 3.1 of Article 51), on refusal to satisfy a petition to combine cases into one proceeding, on refusal to satisfy a petition to separate claims into separate proceedings (Part 7, Article 130)<1>.

<1>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 Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal” (clause 6.1).

According to the general rule, rulings of the arbitration court of first instance can be appealed to the appellate arbitration court, and then in cassation.<1>. However, this rule of the Arbitration Procedure Code of the Russian Federation provides for several exceptions, for example, a ruling of an arbitration court in a case challenging the decision of an arbitration tribunal can be appealed to the arbitration court of the cassation instance within a month from the date of the ruling (Part 5 of Article 234). A similar rule of the Arbitration Procedure Code of the Russian Federation is established for rulings of an arbitration court in the case of issuing a writ of execution for the forced execution of an arbitration court decision (Part 5 of Article 240) and rulings of an arbitration court in a case of recognition and enforcement of a decision of a foreign court or a foreign arbitration award (Part 3 art. 245).

<1>The cassation court, having established circumstances indicating that the appeal of the ruling of the arbitration court of first instance in the appellate manner was missed, must return the cassation appeal on the basis of clause 5 of part 1 of Art. 281 of the Arbitration Procedure Code of the Russian Federation or terminate the proceedings on the cassation appeal if these circumstances became known after the initiation of cassation proceedings in accordance with paragraph 1 of Part 1 of Art. 150 (Determination of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 30, 2011 in case No. A79-999/2011).

In judicial and arbitration practice, the question has repeatedly arisen about the moment from which the period for appealing the decisions of the arbitration court should be calculated. In accordance with Part 3 of the commented article given period begins to flow from the moment the arbitration court makes its ruling<1>. In cases where the arbitration court postponed the issuance of a ruling in the form of a separate judicial act in full for a period of no more than five days on the basis of Part 2 of Art. 176, the date of the ruling will be considered the date of drawing up the judicial act in full<2>.

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<1>Sending a copy of the ruling to the persons participating in the case in violation of the deadlines provided for in Part 2 of Art. 186, is not a basis for extending the period of appeal, however, the appellate court must take this circumstance into account when considering a petition to restore the missed deadline for filing an appeal (clause p. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 No. 36 “On the application Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal", Resolutions of the FAS East Siberian District dated October 11, 2011 in case No. A/11, FAS West Siberian District dated May 27, 2011 in case No. A/ 2009).

3.1. Part 3.1, introduced by Federal Law of December 8, 2011 N 422-FZ<1>, establishes a special rule for appealing a ruling of the Intellectual Property Rights Court issued by it as a court of first instance. A complaint may be submitted to the presidium of this court for consideration in the cassation instance within a period not exceeding a month from the date of the ruling, unless other procedures and deadlines are established by the Arbitration Procedure Code of the Russian Federation.

<1>Federal Law of December 8, 2011 N 422-FZ “On Amendments to Certain legislative acts of the Russian Federation in connection with the creation of the Court for Intellectual Rights in the system of arbitration courts” // SZ RF. 2011. N 50. Art. 7364.

In accordance with Art. 4 of this Law, before the creation of the Intellectual Rights Court, cases within its competence are considered by the arbitration courts that accepted them for their proceedings. Therefore, before the start of the activities of the Intellectual Rights Court, rulings made by the arbitration court of the first instance in this category of disputes are appealed according to the rules provided for in Part 3 of the commented article.

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4. A complaint against the ruling of the arbitration court of the appellate instance is filed with the arbitration court of the cassation instance within a period not exceeding a month from the date of the ruling, unless a different period is established by the Arbitration Procedure Code of the Russian Federation.

5. If the court of appeal made a decision as a result of considering an appeal against a ruling of the arbitration court of first instance, such a decision may be appealed to the arbitration court of cassation within a period not exceeding a month from the date the decision entered into force, provided that the Arbitration Procedure Code of the Russian Federation allows appeal such a resolution.

6. A complaint against a ruling of the arbitration court of the cassation instance (for example, about the return of a cassation appeal, about termination of proceedings) may be filed within a period not exceeding a month from the date of the ruling. The rules for considering complaints against rulings of the arbitration court of cassation are provided for in Art. 291 Arbitration Procedure Code of the Russian Federation.

Comments and legal advice on Art. 188 Arbitration Procedure Code of the Russian Federation

If you have any questions regarding Article 188 of the Arbitration Procedure Code of the Russian Federation, you can ask a question on the website or by phone.

Comments and legal advice are provided free of charge daily from 9:00 to 21:00 Moscow time.

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Questions received between 21:00 and 9:00 will be answered the next day.

Article 188 of the Arbitration Procedure Code of the Russian Federation. Procedure and deadlines for appealing rulings

1. The ruling of the arbitration court may be appealed separately from the appeal of the judicial act, which ends the consideration of the case on the merits, in cases where, in accordance with this Code, an appeal of this ruling is provided, and also if this ruling prevents the further progress of the case.

2. In relation to a ruling, the appeal of which is not provided for by this Code, as well as in relation to a protocol ruling, objections may be raised when appealing a judicial act, which ends the consideration of the case on the merits.

3. A complaint against a ruling of the arbitration court of first instance may be filed with the arbitration court of appeal within a period not exceeding one month from the date of the ruling, unless other procedures and deadlines are established by this Code.

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3.1. A complaint against a ruling of the Intellectual Rights Court, issued by it as a court of first instance, may be filed with the presidium of this court for consideration in the cassation instance within a period not exceeding a month from the date of the ruling, unless other procedures and deadlines are established by this Code.

4. A complaint against a ruling of the arbitration court of the appellate instance may be filed with the arbitration court of the cassation instance within a period not exceeding one month from the date of the ruling, unless another period is established by this Code.

5. A complaint against a decision of an arbitration court of the appellate instance, adopted based on the results of consideration of an appeal against a ruling of the arbitration court of the first instance, may be filed with the arbitration court of the cassation instance within a period not exceeding a month from the date of entry into force of such a decision, if, in accordance with Under this Code, such a decision may be appealed to the arbitration court of cassation.

6. A complaint against a ruling of the arbitration court of cassation may be filed within a period not exceeding a month from the date of the ruling, in the manner established by Article 291 of this Code.

Comments to Art. 188 Arbitration Procedure Code of the Russian Federation

1. The rulings of the arbitration court of first instance, as a rule, can be appealed to the appellate and cassation instances. However, there are rulings that can only be appealed in cassation. Thus, rulings on the recognition and enforcement of a decision of a foreign court or a foreign arbitration award (Part 3 of Article 245 of the APC), as well as on the issuance of a writ of execution for the forced execution of an arbitration court decision (Part 5 of Article 240 of the APC) can be appealed face to the cassation authority. Definitions can also be revised in a supervisory manner (Article 308 of the APC) subject to the additional conditions specified in Art. 304 APC.

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In accordance with paragraph 3 of Art. 223 of the APC, determinations that are made by an arbitration court when considering bankruptcy cases and the appeal of which is provided for by the APC and other federal laws governing bankruptcy issues, separately from the judicial act that ends the consideration of the case on the merits, can be appealed to the arbitration court of appeal (and in a shortened - ten days from the date of their issuance). In the same manner, rulings of the arbitration court issued based on the results of consideration of applications, petitions and complaints in the manner established by Art. Art. 50, 71 and 100 of the Bankruptcy Law (clause 1 of Article 61 of the Bankruptcy Law).

At the same time, as explained in paragraph. 2 clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 8, 2003 No. 4 “On some issues related to the implementation of the Federal Law “On Insolvency (Bankruptcy)”, it should be borne in mind that clause 1 of Art. 61 of the Bankruptcy Law does not prevent further revision of these determinations in the cassation and supervisory procedures, as well as due to newly discovered circumstances.

See: Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. N 6.

Other rulings of the arbitration court that were adopted in the framework of a bankruptcy case, but are not provided for by the Arbitration Procedure Code, and in respect of which it is not established that they are subject to appeal, can also be appealed on appeal (albeit within 14 days from the date of their issuance) . Based on the results of consideration of the complaint, the appellate court, within 14 days, makes a decision, which, by virtue of clause 3 of Art. 61 of the Bankruptcy Law is final. In the same manner, by virtue of the direct instructions of the law, the following definitions are appealed:

On invalidating the decision of the meeting of creditors or refusing to invalidate the decision of the meeting of creditors (clause 5 of Article 15 of the Bankruptcy Law);

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Determination to extend the period of external administration (clause 2 of Article 93 of the Bankruptcy Law);

Determination to extend the period of bankruptcy proceedings (clause 3 of Article 124 of the Bankruptcy Law).

It is important to take into account that within the meaning of paragraph 2 of Art. 61 of the Bankruptcy Law, when appealing rulings establishing the amount of creditors’ claims, the arbitration court that issued the ruling sends to higher courts in the manner prescribed by the Arbitration Procedure Code only those materials of the bankruptcy case that directly relate to the dispute between the debtor and the creditor (creditors) regarding the establishment validity, size and priority of requirements. The same procedure according to paragraph. 2 clause 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 8, 2003 No. 4 is applied in cases of appealing a ruling to invalidate a decision of a meeting of bankruptcy creditors or to refuse to invalidate a decision of a meeting of creditors (clause 5 of Article 15 of the Bankruptcy Law) ; determinations on the consideration of a dispute between persons who provided security for the debtor's fulfillment of obligations in accordance with the debt repayment schedule, and the administrative manager, bankruptcy creditors, authorized bodies (clause 5 of Article 89 of the Bankruptcy Law); determinations to invalidate the external management plan in whole or in part (clause 6 of Article 107 of the Bankruptcy Law); determinations on the consideration of disagreements between the bankruptcy trustee and the local government body under the agreement on the transfer of socially significant objects into municipal ownership (clause 8 of Article 132 of the Bankruptcy Law); determinations to compel a local government body to accept socially significant objects (clause 9 of Article 132 of the Bankruptcy Law); determination on resolving disagreements on the procedure, terms and conditions for the sale of the debtor’s property (clause 2 of Article 139 of the Bankruptcy Law); determinations on resolving disagreements on the issue of agreeing on the procedure for selling the rights of claim of the debtor (clause 3 of Article 140 of the Bankruptcy Law); determinations to compel a local government body to accept property that was offered for sale, but was not sold, and the rights to which were not declared by the founders (participants) of the debtor or the owner of the debtor’s property - unitary enterprise(Clause 3 of Article 148 of the Bankruptcy Law).

It should also be taken into account that the procedure and consequences of revising rulings on approval of settlement agreements (this, however, applies to both the grounds and consequences of termination of settlement agreements) are established by the Bankruptcy Law, regardless of the fact that the relevant settlement agreements were approved under the terms of the Federal Law dated January 8, 1998 (paragraph 1, paragraph 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 8, 2003 No. 4).

2. Appeals and cassation complaints against rulings of arbitration courts by virtue of the norms of Part 2 of Art. 272 and art. 290 of the APC must comply with the requirements for their form and content established respectively in Art. Art. 260 and 277 APC.

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3. The article does not define from what moment the period for appealing the determination begins. Since the determination must be motivated (Article 185 of the APC), the specified period must begin to run from the moment the determination is made. In this case, similar to the norm in paragraph. 2 hours 2 tbsp. 176 of the APC establishes that the date of production of the decision in full is considered the date of adoption of the decision, the date of production of the ruling as a judicial act should be considered the date of its adoption. Currently, arbitration practice follows the path that rulings are prepared and served to those present participating in the case, on the day of their announcement.

By virtue of Part 4 of Art. 113 of the APC, the calculation of the one-month period for appealing the ruling of the court of first instance begins the next day after calendar date, which determines the beginning of the procedural period. Moreover, this period also includes non-working days. If the appeal period is less than one month (for example, Part 4 of Article 206 of the APC), i.e. is calculated in days, then this period does not include non-working days (Part 3 of Article 113 of the APC).

4. Determinations can be appealed, as a rule, only by persons participating in the case. However, the APC also provides for exceptions. So, according to Art. 42 of the APC, persons who did not participate in the case, on whose rights and obligations the arbitration court adopted a judicial act, have the right to appeal this judicial act, as well as challenge it in the manner of supervision. In this case, they enjoy the rights of persons participating in the case.

5. Federal Law No. 205-FZ of July 19, 2009 amended the wording of Part 3 of the commented article. The essence of the change is that now the persons participating in the case are required to appeal the rulings of the arbitration court of first instance to the appellate instance, which was not the case previously and, accordingly, these rulings could be appealed immediately in the cassation or even supervisory procedures, bypassing the appeal. The appeal period remained unchanged - no more than a month from the date of the appealed ruling.

There are, of course, other deadlines for appeal in arbitration procedural law (including taking into account the amendments and additions introduced by Federal Law No. 205-FZ of July 19, 2009).

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Now a number of rulings can be appealed within ten days from the date of their issuance to the appellate instance (part 3 of article 39, part 7 of article 46, part 3.1 of article 51 of the Arbitration Procedure Code). In addition, special deadlines for appealing rulings are established in a number of other articles of the procedural law (in part 8 of article 141, part 3 of article 223, part 1 of article 225.9, part 5 of article 234, part 5 of art. 240, part 3 of article 245 of the APC).

6. In the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 5, 2006 N 112 “On the application of part 1 of article 188, part 2 of article 257, part 2 of article 275 of the Arbitration Procedural Code of the Russian Federation when appealing rulings separately from appealing a judicial act by which the consideration of the case on the merits ends” contains a number of significant clarifications. It states that within the meaning of Part 1 of Art. 188 APC taking into account the provisions of Part 2 of Art. 257 and part 2 of Art. 275 of the Arbitration Procedure Code, the arbitration court that adopted the appealed ruling sends to the arbitration court of a higher instance, together with the complaint, only those materials of the case that are directly related to this complaint and are necessary for its consideration, as well as an inventory of the documents available in the case.

See: Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006. N 10. P. 87.

The arbitration court of a higher instance has the right to demand from the arbitration court, whose ruling is appealed, other materials of the case that it recognizes as necessary for considering the complaint.

The arbitration court that adopted the appealed ruling has the right, on its own initiative, to send copies of all case materials to the higher court, if their volume does not exceed reasonable limits.

The appealed ruling of the arbitration court and the complaint are sent to the higher court in original copies, other documents - in copies certified by the arbitration court. Copies of documents can be submitted electronically.

7. Federal Law No. 205-FZ of July 19, 2009 supplemented the commented article with part four. This addition was adopted taking into account the need to understand, in relation to these definitions, exceptions from the general two-month period for cassation appeal (Part 1 of Article 276 of the APC), to which Art. 290 of the APC in relation to cassation appeals against rulings of the arbitration court of the first and appellate instances. Previously, only the law on insolvency (bankruptcy) prescribed the mandatory appeal of a number of rulings within a shortened ten-day period (see paragraph 1 of the commentary to Article 188 of the APC). The one-month period was established by the legislator taking into account judicial and arbitration practice (for example, this can be seen from paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 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” ).

See: Bulletin of the Supreme Arbitration Court of the Russian Federation. 2009. N 8. P. 101.

8. As an exception to the general two-month appeal period, the legislator in Part 5 of the commented article established that a cassation appeal against a decision of the appellate court, adopted following the consideration of an appeal against a ruling of the arbitration court of first instance, can be filed within a period not exceeding a month from the date of its entry into force. At the same time, it is stipulated that the filing of a complaint is carried out in the specified order, if, according to the Arbitration Procedure Code, such a decision can be appealed in cassation.

An interpretation cannot be excluded in which the specified reservation concerns appeal decisions adopted as a result of consideration of complaints against the rulings that are being appealed, in particular, in accordance with Part 7 of Art. 46, part 3.1 art. 51 APK. However, in our opinion, this would be wrong. The prohibition of cassation appeal is, as a rule, accompanied by an indication in the procedural law of such a restriction. The latter is seen, for example, in paragraph 3 of Art. 61 of the Federal Law of October 26, 2002 N 127-FZ. It states that those specified in paragraphs 1 and 2 of Art. 61 of this Law, determinations that are adopted in the framework of a bankruptcy case, but are not provided for by the APC and in respect of which it is not established that they are subject to appeal, can be appealed through an appeal no later than 14 days from the date of their adoption. In this case, based on the results of consideration of the appeal against such determinations, the appellate court, no later than 14 days later, makes a decision, which is final. The indication of finality excludes cassation appeal.

9. In paragraph 6 of the commented article, in relation to other complaints, except those mentioned in Part 1 of Art. 291 of the APC (in relation to them, we believe, the ten-day appeal period remains in force), it is established that they can be appealed within a period not exceeding a month from the date of issue. This is a reasonable addition, since in Part 2 of Art. 291 of the APC provides for the possibility of appealing against other determinations, but the period during which was not determined.

10. In some cases, appealing determinations requires payment of a state fee. This applies, for example, to appealing rulings to leave a claim without consideration or to terminate proceedings.

According to sub. 12 clause 1 art. 333.21 of the Tax Code of the Russian Federation, the amount of the state duty paid when appealing these determinations is 50% of the amount of the state duty payable when filing a claim of a non-property nature.

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"On amendments to certain legislative acts of the Russian Federation in connection with the improvement of the legal status of state (municipal) institutions"

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The appeal consideration of complaints against the rulings of the arbitration court of first instance occurs according to the rules for the consideration of appeals against court decisions with some features provided for in Parts 2, 3 of Art. 272 of the Arbitration Procedure Code of the Russian Federation.

The procedure and deadlines for appealing rulings are provided for in Art. 188 Arbitration Procedure Code of the Russian Federation.

Article 188. Procedure and terms for appealing rulings

The subject of an appeal may be a determination that ends the consideration of the case on the merits, if the Arbitration Procedure Code of the Russian Federation provides for the possibility of appealing such a determination. A ruling that prevents further progress of the case may also be appealed.

The Arbitration Procedure Code of the Russian Federation establishes that some determinations cannot be appealed on appeal (the complaint is filed with the cassation court). These definitions include:

Determination on approval of the settlement agreement (Part 8 of Article 141 of the Arbitration Procedure Code of the Russian Federation);

Ruling to challenge the decision of the arbitration court (Part 5 of Article 234 of the Arbitration Procedure Code of the Russian Federation);

Determination in the case of issuing a writ of execution for the forced execution of an arbitration court decision (Part 5 of Article 240 of the Arbitration Procedure Code of the Russian Federation);

Determination in the case of recognition and enforcement of a decision of a foreign court or a foreign arbitration award (Part 3 of Article 245 of the Arbitration Procedure Code of the Russian Federation).

As a rule, a complaint against a ruling can be filed within one month from the date of the ruling. Some determinations have different deadlines. In particular, in cases of insolvency (bankruptcy), rulings, the appeal of which by law is allowed separately from the judicial act that ends the consideration of the case on the merits, can be appealed within 10 days from the date of their issuance (see Part 3 of Article 223 Agroindustrial Complex of the Russian Federation).

The ruling on the return of the statement of claim and other rulings that impede the further progress of the case are not considered within a month, as provided for in Art. 267 of the Arbitration Procedure Code of the Russian Federation, and in an accelerated manner - within a period not exceeding 10 days from the date of receipt of the appeal to the court (Part 3 of Article 272 of the Arbitration Procedure Code of the Russian Federation).

Based on the results of consideration of the appeal, the court makes one of the following decisions:

Leaves the determination unchanged and the complaint unsatisfied;

Cancels the ruling and sends the case for a new trial to the arbitration court of first instance (in this situation, the appellate court cannot replace the court of first instance and act in its role);

Cancels the definition (in whole or in part) and resolves the issue on the merits.

Article 272. Appeals against rulings of the arbitration court of first instance

1. The rulings of the arbitration court of first instance are appealed to the arbitration court of appeal in accordance with Article 188 of this Code.

2. Appeals against decisions of the arbitration court of first instance are filed with the arbitration court of appeal and are considered by it according to the rules provided for filing and consideration of appeals against decisions of the arbitration court of first instance, with the features provided for in Part 3 of Article 39 of this Code and Part 3 of this article.

3. Appeals against the rulings of the arbitration court of first instance, the appeal of which is provided for in Articles 46, 50, 51 and 130 of this Code, as well as against rulings on the return of the statement of claim and other rulings that impede the further progress of the case, are considered by the arbitration court of appeal within a period not exceeding fifteen days from the date of receipt of such a complaint by the arbitration court of appeal.

4. Based on the results of consideration of a complaint against a ruling of the arbitration court of first instance, the arbitration court has the right to:

1) leave the ruling unchanged and the complaint unsatisfied;

2) cancel the ruling of the arbitration court of the first instance and send the issue for a new consideration to the arbitration court of the first instance;

3) cancel the determination in whole or in part and resolve the issue on the merits.

The concept of a ruling by an arbitration court presupposes an act that contains mandatory instructions. They are aimed at resolving procedural issues. However, one of the parties to the case may not agree with by decision. In this case, participants have the right to appeal the determination. This process involves a certain order, which includes established stages. This includes drawing up a complaint and preparing supporting documentation.

Who can file a complaint?

does not always satisfy all interested parties. According to the procedural code, determinations can be challenged by the following categories of persons:

The parties taking part in the case are the plaintiff or the defendant;
Persons who filed a complaint or other interested parties, unless prohibited by the Code;
Third parties who have claims regarding the subject of the dispute;
The prosecutor, if he did not participate in resolving the issue;
State or municipal bodies that have filed lawsuits against the court regarding the protection of public interests;
Persons who did not take part in the process. This may only apply to those persons in respect of whose rights a court act has been issued.

Citizens of the Russian Federation and foreigners can appeal the determinations.

Worth using to file a complaint. The sample contains all the items that the paper contains.

Options and deadlines for filing an appeal against an arbitration court ruling

The peculiarity of the arbitration court is that it involves a two-level system of procedure. In particular, the following options are provided to achieve the desired result:

Appeal procedure. In this case, you can file a complaint even before the arbitration court decision has entered into force. After the corresponding application has been received, the institution reconsiders the case in accordance with the received requirements;
Cassation appeal. May be sent to the arbitration court only in relation to the decision entered into legal force. When the application is considered, the legality of the determination is checked. The procedure is carried out on the basis of the information specified in the complaint.

What is required for a positive outcome when considering a complaint? There is a deadline in which you can submit an application and a deadline for its consideration. Must be observed set time. The document must be submitted to the appropriate authority in a particular case. To draw up a complaint, you should use a sample.

The procedure for appealing through the appellate authority

The complaint may be sent to the arbitration court of appeal. The sample does not contain the reasons for disagreement with the decision, since they are different for everyone. The deadline for submitting an application is one month. Time is counted from the date on which the decision was made. This rule contained in the Arbitration Procedure Code of the Russian Federation, in article 259.

If the event is carried out as part of a case of bringing to administrative responsibility, the period is reduced to ten days.

The complaint must be made in writing and signed either by the complainant himself or his authorized representative. In the latter case, you will need a power of attorney certified by a notary.

The paper can be submitted to the authority in the following ways:

Office of the Judiciary;
By order. In this case, it is necessary to attach an inventory of all transferred documents;
Via the Internet. For this purpose, specialized resources provide a sample to fill out.

The complaint sample contains the following mandatory points:

Name of the authority to which the paper is sent;
Data of all persons participating in the procedure, as well as the applicant himself;
Name of the arbitration court that issued the disputed ruling, case number, date of approval of the decision;
Requirements regarding the case, as well as the grounds for their presentation (laws, regulations, evidence);
List of documents attached to the application;
Contacts for communication.

Copies of documents related to the case and a receipt for payment of the fee are attached to the complaint.

The application is submitted to the arbitration court, which made a decision.

Filing a cassation appeal

The complaint, in this case, is sent to the Federal Judicial Authority. However, an appeal through the cassation authority can be carried out if the following conditions are met:

The decision has already been reviewed by the appellate body;
In response to the application to the appellate authority, the application was rejected.

The deadline for submitting a cassation document, in this case, is two months after the decision has entered into force. However, this period can be reduced to a month in the following cases:

Challenging regulatory legal acts;
Cases on the implementation of a ruling made by a foreign judicial authority;
Challenging the decision of arbitration institutions.

The application must be made in writing. It must be sent to the arbitration court that made the decision. The complaint sample includes all the points that are prescribed in the event of an event being held through an appellate authority.

The cassation procedure does not apply if these are verdicts adopted by the Supreme Judicial Body of the Russian Federation, which come into force immediately.
The exception is cases in which new circumstances have arisen regarding the case, which may become the basis for changing decisions.

Additional information on how to file an appeal to the arbitration court is in this video:

If new circumstances arise, you must submit an application regarding their occurrence. The established submission period is three months from the date of discovery of new information. If the provided time for submitting an appeal of any kind is missed, you can contact the authority to restore it. However, there must be good reasons for this, which must be documented.

Which rulings should the arbitration court appeal against? Appealing rulings of arbitration courts

Second cassation

Supervision

Commentary on Article 188 of the Arbitration Procedural Code of the Russian Federation

Comments and legal advice on Art. 188 Arbitration Procedure Code of the Russian Federation

Article 188 of the Arbitration Procedure Code of the Russian Federation. Procedure and deadlines for appealing rulings

Comments to Art. 188 Arbitration Procedure Code of the Russian Federation

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Agroindustrial Complex of the Russian Federation - documents of the Plenum and Presidium of the Supreme Court

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Options and deadlines for filing an appeal against an arbitration court ruling

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