Системность процессуальной формы в нормах об апелляционном и кассационном производствах

Законодательство. 2023. № 11. С. 78–86.

Pavlova M.

Legislative structure that provides with the court of appeal right to consider cases in accordance with the rules of the court of first instance when canceling the decision of a lower court due to significant violations of procedural law, contradicts consistency of the procedural form. In the article the author substantiates the idea about expediency of reconstruction this power of the court of appeal. First of all it's necessary to take into account the special and exceptional nature of the grounds for the cancellation of the decision of the court of first instance, exactly such significant violations of procedural law without the elimination of which it is impossible to restore the rights, freedoms and legitimate interests of citizens and organizations, and in the absence of which the court of first instance would have made the opposite decision. In particular there're cases in which the correction of violations leds to the need for consideration the case from the very beginning and making а new decision. The effeciency of judicial guarantees, justice for the participants of the process can be increased by providing an appeal review for such rulings. First of all it's possible to expand the grounds for the cancellation and verification of such decisions in the court of cassation instance. Secondly the court of appeal can be provided with the authority to refer the case to the court of first instance in case of significant violations of procedural law (without proceeding to the consideration of the case according to the rules of procedure in the court of first instance).The third method includes reorganization of the system of verification instances (creation of a second appeal for such court rulings).

Keywords: суд первой инстанции, процессуальная форма, суд апелляционной инстанции, court of appeal, Consistency of the procedural form, significant violations of procedural law, rules of procedure in the court of first instance, существенные нарушения норм процессуального права