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Appeal and cassation: what is the difference in the preparation of a complaint

Citizens who defend their rights, as well as lawyers, often hear terms such as appeal and cassation. What is the difference between them? We will try to answer this question.

Appeal and cassation, what's the difference?

Appeal is the second instance of litigation. Cassation - the third. At first glance, everything becomes clear, but there is a huge difference between them. So, let's consider in more detail what is an appeal and cassation, what is the difference between them:

  1. An appeal is lodged with the court decisions that have not yet been accepted. Cassation is considering appeals against verdicts, which have already entered into force.
  2. The Appeals Board is obliged to assemble at the appeal of the applicant. The cassation has no such obligation. Refusal can be made by a judge in the cabinet, without calling the parties and demanding the materials of the case.
  3. The appeal examines the case on the merits. This is the second attempt at litigation, although a bit limited. Cassation does not consider the circumstances of the case. It only monitors the observance of the judicial order.
  4. The appeal does not decide on a new examination of the case. She either rejects the complaint, or changes the decision of the first instance. The cassation competence is much broader. It can reject a complaint, revoke a decision by appointing a new review, and may also issue a new ruling.

The arguments and arguments in the complaint

Cassation and appeal, what is the difference in the argumentation of the complaint? Many inexperienced lawyers, much less unprepared citizens, do not particularly understand the fundamental difference. After the appeal, they simply rewrite the "cap" of the complaint and submit it to the next instance. However, this is a mistake. The appeal, as already mentioned above, examines the case on the merits. It is necessary here to prove that the citizen is right, based on the norms of law, evidence, testimonies of witnesses. For the cassation these arguments do not mean absolutely nothing. The third instance is that the rules of procedural and substantive law should be observed . What does it mean? Let's consider more in detail

Cassation and appeal, what is the difference in the preparation of a complaint?

As we said above, at cassation it is necessary to indicate the norms that were violated during the court sessions. For example, there may be the following violations of procedural rules:

  • Absence of a record of the court session ;
  • Placing the burden of proof on the other side of the process;
  • Improper notice of the time and place of the meeting, etc.

Violations of material norms include:

  • Misinterpretation of the law ;
  • The application of laws that do not require application.

The difference between cassation and appeal is that the former will not even consider the complaint if it does not reflect the above violations in the complaint, in contrast to the appeal, which examines the case on the merits.

Example of violation of substantive law

As an example, we simulate the following situation. For failure to provide information for tax control, sanction was applied in accordance with paragraph 2 of Article 126 of the RF Tax Code. However, this rule should not be applied to ordinary taxpayers. Thus, there is an application of a law that does not require application. This should be indicated as an argument in the appeal. So, the appeal and cassation, what is the difference in addition to what we have already listed? In order of consideration. We will talk about this further.

Special order in cassation

In addition to the above differences, it is important to know where to file a complaint. Appeal is submitted to the first instance, which made a decision. This can be a district court. It is he who, after filing a complaint, prepares the case materials and sends them "higher". Cassation is served directly. Together with it it is necessary to submit copies of decisions of the first two instances. It is important that all documents are properly certified: there were necessary seals, signatures, sheets are numbered, stitched, sealed. The complaint goes through three stages:

  1. Formal. It verifies the external attributes of the complaint, as well as all copies, attachments, receipts, etc. The first stage should take no more than ten days.
  2. Judge's determination. The complaint falls to one judge, who decides what to do with it further. As a rule, most cases at this stage end their movement. A decision is made on the refusal and that's all. The case was not even considered. However, sometimes the complaint reaches the third stage.
  3. Consideration of the case by the Judicial Collegium.

So, we hope that we have clearly explained the difference in the appeal from the appeal. The main thing - to defend their rights, if they were violated. It is foolish to rely on insuperable circumstances, if a person does nothing himself.

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