Newly discovered circumstances
In judicial practice there are often situation when, after the end of the trial, the parties (plaintiff/defendant or other person) identify the circumstances that was not known to them at the time of consideration of an already ended court cases, but whether they are previously known, could substantially influence the outcome of cases.
In these circumstances, the arbitration law guarantees appropriate to the person concerned the protection of rights and interests in revising a judicial act in connection with the fact that in the proceedings the person did not know about the existence of important circumstances and could not bear it in mind when developing its evidence base to have considered the case.
The protection (or rather restore) the rights of the parties in such cases is part of the production on the revision of entered into legal force judicial acts due to new or newly discovered circumstances.
This stage of the arbitration process is governed by the provisions of individual chapters of the Arbitration procedural code of the RF ("APC RF") head 37 and is an independent stage of arbitral proceedings, during which checks the legality of the judicial act entered into legal force.
It should be noted that in the arbitration law there are three separate stages for the revision of judicial acts entered into legal force:
• proceedings in the court of appeal (Chapter 35, APC);
• manufacture on revision of judicial acts in the order of supervision (Chapter 36 of the APC RF);
• production on the revision of entered into legal force judicial acts due to new or newly discovered circumstances (Chapter 37 of the APC RF).
A distinctive feature of this stage is that judicial act shall be reviewed in connection with the emergence of new (did not exist at the time of the adoption of the contested judicial act), or identify the old (existed at the time of the adoption of the contested judicial act) circumstances that could not have been known at the original trial and are essential to the case, whereas in the other two stages of the revision of a judicial act is carried out according to the materials of the case evidence.We have identified new facts...
What circumstances new or newly discovered circumstances may serve as grounds for revising the judicial act entered into legal force? The list of such grounds listed in article 311 of the APC RF, according to which the new circumstances are:
1) essential for business circumstances that were not and could not be known to the applicant;
2) falsification of evidence, deliberately false expert opinion, deliberately false witness testimony, deliberately incorrect translation that is established by a legally effective court decision and resulted in adoption of illegal or unsubstantiated judicial act on the case;
3) criminal acts of the person participating in business, or its representative or criminal deeds of a judge, committed during the proceedings that established by a legally effective court decision.
New circumstances according to the same article of the APC are:
1) cancellation of the judicial act of arbitration court or court of General jurisdiction or decision of another body, which served as the basis for the adoption of a judicial act on the case;
2) recognized by an enforceable judicial act of arbitration court or court of General jurisdiction to be invalid the transaction that resulted in adoption of illegal or unsubstantiated judicial act on the case;
3) recognition by the Constitutional Court of the Russian Federation not corresponding to the Constitution of the Russian Federation of the law applied by the arbitral Tribunal in a specific case, in connection with the decision by which the applicant appealed to the constitutional Court of the Russian Federation;
4) established the European Court of human rights, the violation of the provisions of the Convention on the protection of human rights and fundamental freedoms, when considering by the arbitration court of the particular case, in connection with the decision by which the applicant appealed to the European Court of human rights;
5) determining any change in the resolution of Plenum of the Supreme Arbitration Court of the Russian Federation or the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation the practice of applying legal norms, if appropriate act of the Supreme Arbitration Court of the Russian Federation contains a reference to the possibility of the revision of entered into legal force judicial acts in force of the circumstances.
Don't waste your time...
Note that, despite the fact that the trial has ended, and the judicial act it came into force, agriculture of the Russian Federation establishes for participants in the process time limit of submission of application for revision of a judicial act due to new or newly discovered circumstances. In accordance with article 312 of the APC RF the application is submitted three months from the date of opening of the circumstances constituting the grounds for review of judicial act. In judicial practice often arise disputes about what the day should be considered the day of the discovery of such circumstances. The explanation for this the reasons were given in decree of the Plenum of the Supreme Arbitration Court of Russia No. 17 dated 12.03.2007 "On the application of arbitration procedure code of the Russian Federation in the revision of entered into legal force judicial acts on newly discovered circumstances", which to summarize the dispute in this stage of the process, explained that the day of the discovery of such circumstances should be considered the day when the applicant learnt or was to learn about the presence of specified circumstances.
Form and content of the talks...
An important issue when applying for reconsideration of a judicial act due to new or newly discovered facts, along with the deadline for the submission of such Declaration is the respect for the form and content of such application.
In case if the applicant in his statement does not point to newly discovered circumstance, on which it bases its request for revision of the judicial act, according to the same decree of the Plenum of the Supreme Arbitration Court of the Russian Federation this fact is the basis for return of the application, citing noncompliance with the requirements of the form and content of the statement.
If the content of the application and the documents attached thereto, you cannot set the date when the applicant learnt or was to learn about opening specified in the statement of circumstances, the arbitration court leaves the statement without movement and offers to provide relevant evidence specifically established for this period.
Analysis of judicial practice of applying the provisions of the APC at the present stage of arbitration proceedings shows that not all arbitration courts distinguish the subtleties of the decisions that they must take depending on the content of specific statements on the revision of judicial acts on again opened circumstances.
So, a sole proprietorship B. has addressed in Arbitration court of Republic Kareliya with the statement for revision on again opened circumstances of the decision of Arbitration court of the Republic of Karelia in the case of N A26-3239/2006-23. The court's determination the statement of the entrepreneur has been returned with reference to article 315 of the APC.
In the appeal the businessman B. he asked to cancel the decision of the court.
The court of appeal established the following. B. the businessman has addressed in Arbitration court of Republic Kareliya with the statement for revision on again opened circumstances of the decision of Arbitration court of the Republic of Karelia in the case of N A26-3239/2006-23. When applying, businessman B. had filed a petition for restoration of the missed deadline for submitting the application.
The court refused the petition for restoration of term on filing of application about revision of the judicial act on newly discovered circumstances, and return this statement to its bearer. The court pointed out that, among other things, it is not possible to set out whether the limit for a six-month recovery period, as it is unknown when and from what sources the entrepreneur B. became aware of the occurrence of the circumstances giving rise to the appeal to the court statement.
Evaluating the arguments of the appeal, the court of appeal instance considers that the complaint of the businessman B. be satisfied.
According to paragraph 4 of paragraph 15 of the Resolution of the Plenum of the Russian Federation of 12.03.2007 N 17 "About application of the Arbitration procedural code of the Russian Federation in the revision of entered into legal force judicial acts on newly discovered circumstances" if the content of the application and the documents attached thereto, you cannot set the date when the applicant learnt or was to learn about opening specified in the statement of circumstances, the arbitration court leaves the statement without movement and encourages the submission of relevant evidence.
From the court of first instance that the court presented to the application documents, considered it impossible to establish the date when the applicant learnt or was to learn about opening specified in the statement of circumstances as well, however not invited the applicant to submit relevant evidence.
Who are the judges?
According to article 310 of the APC application for review due to new or newly discovered facts shall be submitted:
1) an enforceable decision taken by the arbitration court of first instance, the court to make these decisions, determination.
2) to review decisions and definitions of arbitration court of appeal and cassation, adopted in the exercise of Supervisory decisions by the Supreme Arbitration Court of the Russian Federation, which amended the judicial act of the arbitration court of first, appeal and cassation instances, or adopted a new judicial act in court, which changed the judicial act or adopted a new judicial act.
Nuances decide everything...
Regardless of compliance with the form and content of applications for review of a judicial act due to new or newly discovered circumstances the key point is the significance of the circumstances in support of which the applicant refers in the filing of such application.
According to the explanations of the above-mentioned resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation circumstances that are grounds for reconsideration of a judicial act, must be able to affect arbitration court conclusions at acceptance of the judicial act, i.e. shall conclusively to indicate that if it were known, would have led to a different decision.
When considering applications for review of a judicial act on newly discovered circumstances, the arbitral Tribunal must establish whether the facts invoked by the Complainant about the availability essential for business circumstances that were not the subject of court proceedings in the case. The judicial act of the arbitration court cannot be reviewed on again opened circumstances, if essential to the circumstances of the case arose after the enactment of this act, as the basis for such review is the discovery of circumstances which though objectively and existed, but could not be considered because it was not and could not be known to the applicant.
In this regard, the court should check whether the facts referred to by the applicant on the submission of new evidence relevant to our research have already informed the arbitral Tribunal the circumstances. New evidence can not serve as the basis for revising the judicial act on newly opened circumstances by rules of Chapter 37 of the APC. In this case, the application for review of a judicial act on newly discovered circumstances can not be satisfied. In this case, the new circumstances arising after the judicial act, cannot be the basis for filing an independent claim.