Cassation Appeal Research Articles

La disparidad de criterios interpretativos en torno a la casación autonómica y su enjuiciamiento constitucional en el ATC de 16 de abril de 2018 y en la STC de 29 de noviembre de 2018

La deficiente regulación de la casación autonómica efectuada por el artículo 86.3 LJCA, la falta de medios personales para hacer efectiva la misma y la dificultad de admitir un recurso que tiene por finalidad «formar jurisprudencia» frente a sentencias de los propios Tribunales Superiores de Justicia que establecen la misma en la instancia, ha llevado a muchos de ellos a inadmitir el recurso de casación autonómico en estos casos, mientras que otros reconocen la plena operatividad del mismo. Esta disparidad interpretativa será examinada a la vista de la jurisprudencia más actual del Tribunal Supremo acerca de la finalidad del recurso y desde una perspectiva constitucional, tras haber recaído recientes pronunciamientos que confirman la operatividad del recurso, aunque parecen relegarlo a Tribunales Superiores de Justicia de varias Salas o Secciones.

Influence of the Constitutional Court and High Court of Cassation and Justice Jurisprudence on Extraordinary Appeals (Appeal in Cassation)

Influence of the Constitutional Court and High Court of Cassation and Justice Jurisprudence on Extraordinary Appeals (Appeal in Cassation)

The dispute about law in urgent administrative cases at the appeal of the bodies of revenue and fees

The article deals with current issues related to the procedure of consideration and resolution of urgent administrative cases at the appeal of the bodies of revenue and fees. The peculiarities of the specified category of cases which are manifested in the urgency; subject composition; notification of the participants of the case on the date, time and place of the case; filing of the claim; calculation of procedural terms; announcement and service of court decisions; appeal and cassation appeal; the court fee are analyzed. It is noted that the statements of the case are a statement of claim, reaction a statement of claim, a response to a reaction, a protest, a third party’s explanation of the statement claim, or reaction a statement of claim. The form of the appeal of tax authorities to the administrative court is a claim. Obviously, that is why in these categories of cases there are often misunderstandings regarding the payment of court fees as evidenced by a large number of decisions on leaving without motion the claim of bodies of revenue and fees on the ground of failure to submit to the court a document on payment of court fees. Central to the article is the consideration of the issue of understanding of the dispute about law as one of the grounds for refusing to open proceedings at the appeal of the bodies of revenue and fees. The only form of administrative proceedings is the consideration of the case on the statement of claim. As is well known, a lawsuit involves conflict between the parties. The mutual rights and obligations of the parties to prove their claims and objections constitute the substance of the dispute. However, the peculiarities of disputes at the request of the bodies of revenue and fees due to the fact that they don’t have a dispute about the law. It is noted that there is no legal definition of the term «dispute about the law», which significantly complicates the consideration and resolution of this category of cases. The interpretation of this concept exists only in judicial practice, in particular in resolutions of the Supreme Court but they are also contradictory. That’s why we consider it necessary to supplement article 283 Code of Administrative Proceedings of Ukraine a note defining the concept of «dispute about the law», which should be understood as a claim of the taxpayer to the tax authority regardless of the subject of the claim which may be submitted to administrative or judicial procedure. Keywords: a dispute about law, administrative proceedings, administrative case, revenue, and fees, claim.

Romanian Appeal in Cassation. Historic Landmarks. 1864-1936-1968

Remedies are means provided by the law by which the State, through the Public Ministry, and the persons designated by law promote a judicial control in which criminal judgments are verified in order to abolish those judgments which contain factual and legal errors and replacing them with judgements compliant with law and truth. Remedies against court decisions, both ordinary and extraordinary, are based on the need to control the work of the courts. Following the exercise of judicial control, possible errors in the judicial process can be avoided, either in terms of establishing the facts or as regards the enforcement of the law. Caile de atac sunt mijloace prevazute de lege prin care Statul, prin Ministerul Public, dar și persoanele anume desemnate de lege promoveaza un control judecatoresc in cadrul caruia se verifica hotarârile judecatorești penale, in vederea desființarii acelor hotarâri care conțin erori de fapt și de drept și inlocuirea lor cu hotarâri conforme cu legea și adevarul. Caile de atac impotriva hotarârilor judecatorești, atât cai ordinare cât și extraordinare, sunt instituite din necesitatea controlarii activitații desfașurate de instanțele judecatorești. In urma exercitarii controlului judiciar se pot inlatura eventualele erori din activitatea de judecata, fie in privința stabilirii faptelor, fie in ce privește aplicarea legii. Cuvinte cheie: recurs, cale extraordinara de atac, control, hotarâre judecatoreasca, casare

PERAN PENGADILAN HUBUNGAN INDUSTRIAL PADA PENGADILAN NEGERI PADANG KELAS IA DALAM MEMBERIKAN KEPASTIAN HUKUM TERHADAP PERKARA PEMUTUSAN HUBUNGAN KERJA

After the enactment of Law No. 2 of 2004 on Industrial Relations Dispute Settlement, the implication of handling disputes disputes becomes the authority of the Industrial Relations Court at the local District Court. In addition to the court (litigation) settlement disputes termination disputes may also be settled out of court (non litigation). The Industrial Relations Court at the IA District Court handled several termination matters. In this study the authors will focus on the settlement through the judiciary (litigation). The problems discussed in this paper is the Role of Industrial Relations Court in Providing Legal Certainty to Termination of Employment Case (PHK) and Implementation of Decision. This study is juridical normative. Based on this research the authors draw the conclusion that the Industrial Relations Court has not played a role in Giving Legal Certainty to Termination Employment Case. The Industrial Relations Court only performs its role in accordance with applicable law. Implementation of the PHI's decision that the losing party tended to file a cassation appeal. Parties that have not / do not want to implement the contents of the decision of the IRC are caused by the absence of sanctions in Law Number 13 Year 2003 concerning Manpower and Law Number 2 Year 2004 on Industrial Relations Dispute Settlement.

La admisibilidad del recurso de casación: análisis desde el enfoque constitucional

La casación constituye un mecanismo judicial extraordinario y excepcional, cuya finalidad es garantizar la corrección de los fallos judiciales en la administración de justicia ordinaria. En tal virtud, la admisibilidad de los recursos de casación debe pasar por los preceptos constitucionales del derecho al acceso a la justicia. La función de la Sala de Conjueces de la Corte Nacional de Justicia es verificar el cumplimiento de requisitos formales para admitir a trámite un recurso de casación. Evidentemente, aquel procedimiento judicial de verificación formal está sujeto al marco constitucional. Sin el correcto examen este recurso puede ser inadmitido, lo que constituiría una violación a la tutela judicial efectiva y el incumplimiento del deber del Estado de corregir el error judicial; es el tema que aborda el presente artículo.

Rola sądownictwa administracyjnego na przykładzie względnej dewolutywności skargi kasacyjnej wniesionej do Naczelnego Sądu Administracyjnego

The role of the administrative judiciary on the basis of the relative devolution of the cassation appeal filed with the Supreme Administrative CourtThe important role of administrative courts is to examine the legality of public administration operations, which is a manifestation of the implementation of one of the fundamental constitutional principles, i.e. the principle of a democratic state governed by the rule of law, which gives effect to the principle of social justice. The administrative courts were provided with a new procedural instrument — the exchangeability of a cassation appeal. This institution entitles the voivodship administrative court, which states that in a case the proceedings are invalid or the grounds for the cassation complaint are clearly justified, to revoke the appealed judgment or the decision, also deciding on the application of a party on the reimbursement of the cassation proceedings costs and at the same meeting to reconsider the case.

Implementation of rights to cassation appeal and cassation proceeding opening

The paper is devoted to the main aspects of the implementation of rights to cassation appeal and cassation proceeding opening. The author points out that from the procedural point of view the opening of cassation proceedings can be regarded as the main and decisive element of the right to access to justice realization.The researcher suggests talking about the right to cassation appeal, the right to open cassation pro- ceedings and the right to cassation review, where the right to appeal is a prerequisite for two others.It is important to find out the moment from which the right to cassation appeal can be implemented. From the content of the legislative rules governing the procedure of cassation appeal and cassation review, it appears that the right to cassation appeal should be understood as implemented since the opening of the cassation proceedings since in this case the right to cassation appeal is covered by the right to a cassation review.At the same time, according to the author, the decision may be considered to be challenged before the completion of cassation review and the closure of the cassation proceedings. From the norms of Ukrain- ian legislation it follows that the moment of the opening of cassation proceedings should be considered the moment of the adoption of the relevant resolution by the judge-rapporteur, because since this moment it is possible to carry out procedural actions aimed at cassation review. In addition, the author focuses on the requirements to the cassation appeal of a substantive and procedural nature, observance of which plays an important role for the implementation of the right to appeal and is a procedural prerequisite for the opening of cassation proceedings.The paper also focuses on joining the cassation complaint. Researcher suggests to defined this notion as a legal act certifying the maintenance of a person whose rights were previously resolved by a lower court, the claims made in the cassation appeal in order to uphold their own legal interest, as a result of which it is endowed with appropriate rights and duties. Along with this, the author makes some proposals to improve the effective procedural legislation of Ukraine.

El interés casacional objetivo en el nuevo recurso de casación contencioso-administrativo

Cuando se cumplen dos años desde la entrada en vigor del nuevo recurso de casación contencioso-administrativo, el Tribunal Supremo está dictando las primeras resoluciones que están contribuyendo a aportar luz sobre las cuestiones más críticas del nuevo modelo de casación. Así sucede con la que es la piedra clave de la reforma: el interés casacional objetivo. En relación con esta cuestión, la Sección de Admisión, a través de los autos de admisión, está interpretando y esclareciendo diferentes particularidades de los supuestos recogidos en el artículo 88 de la LJCA. Este trabajo analiza algunos aspectos relacionados con la interpretación que los primeros autos de admisión contienen sobre los supuestos de interés casacional objetivo, con especial consideración del caso del artículo 88.2.a), sobre jurisprudencia contradictoria.

اختصاصات هيئة انضباط موظفي إقليم كردستان العراق والطعن في أحكامها

Abstract Employees Discipline Commission of the Iraqi Kurdistan region has two Jurisdictions. First, looking to appeals of employees’ civil services rights and its provisions are subjected to cassation appeal. Second, looking to the appeals of punishments issued under the Employees Discipline Law and its provisions is definite which is unjustified. so we proposed that all Commission's provisions be subject to cassation appeal regardless the matter of the judgment especially as some of the punishments, has a greater impact than certain service rights. We are in intention for strengthening employee's guarantees to achieve the balancing between the effectiveness of management and employee's guarantees. This research included suggestion to establish a high administrative court in the Kurdistan Region to undertake the jurisdictions of the General Assembly of the Region’s Shura Council as attributive cassation. Also the jurisdiction of appointing competent authority for appeared conflicts on jurisdiction between the Administrative Court and the Employees Discipline Commission. Additionally, to give jurisdiction to the Appointment competent authority Commission to look on jurisdiction’s conflict between Employees Discipline Commission and Civil Courts. As for the (15) days period of the cassation appeal is insufficient to study the judgment and then resort to appeal it or not.

Appeal Against the First Instance Court Determination Brought Independently of the Court Decision in Civil and Administrative Court Proceedings

The article provides for the thorough examination of separate theoretical and practical problems of appealing against made by arbitrazh courts and courts of general jurisdiction in fist instance, as well as in cases dealt with in the course of administrative proceedings. The author examines the history of the issue applying criteria differentiating the court's decisions that cannot be appealed independently from the decision that is subject to appeal. Based on the analysis of legislative terminology, it is proposed to supplement Para. 2 of Part 1 of Art. 331 of the Code of Civil Procedure of the Russian Federation by means of providing for the right of appeal against the decisions of the court that not only exclude the possibility, but also against determinations thatimpede the further movement of the case. The article substantiates the necessity of vesting the right of appeal against the decision on refusal to bring to court a third person has not brought any independent claims with the person who filed the relevant motion in the Arbitration Procedural Code of the Russian Federation and the Civil Procedure Code of the Russian Federation. The author proposes to consolidate in the Code of Civil Procedure of the RF and the Code of Administrative Procedure of the RF the rules similar to the rules set forth in the Code of Administrative Procedure of the RF: 1) the issue concerning restoration of the missed appeal lodging period should be considered by the appellate court (rather than by the court that passed the appealed decision); 2) the right to file a cassation appeal against a court decision (determination, ruling) when the appellate court refused to reinstate the missed deadline for filing an appeal.

Реалізація права на касаційне оскарження в адміністративному процесі України

Реалізація права на касаційне оскарження в адміністративному процесі України

RETORNO AL DEBATE CONCEPTUAL DE TASA Y TARIFA COMO UN PARÁMETRO DE LOS LÍMITES DEL CONCEPTO DE TRIBUTO. COMENTARIO A LA SENTENCIA DEL TRIBUNAL SUPREMO DE ESPAÑA 5037/2015, DE 23 DE NOVIEMBRE DE 2015, RECAÍDO EN RECURSO DE CASACIÓN 4091/2013.

This article analyzes a decision of the Supreme Court of Spain, on appeal in cassation, handed down in a case where two public bodies discuss its jurisdiction over the application of certain kinds of charges. Such charges, for a state body (Government of Autonomous Region) constitute utility fares (for provision of public utilities), for the other state body (municipality) are taxes. This judicial decision underscores the validity of the debate about the conceptual scope of the tax, which is a matter of great complexity and converging various elements, all of which referred to in this work. This specifi c case is related to the payment of house water supply, and about the legal nature of the payment of the users of public utilities

On The Issue about The Moment of Incurrence of Right of Cassation Appeal on Civil Cases in Republic of Bulgaria

Abstract The right of the party concerned to a cassation appeal is result of specific inspection performed by the Supreme Court of Cassation where examined is the presence of conditions, foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation, however, shall incur from the presence of appellate judgment [1], and not from the specific inspection of Supreme Court of Cassation. The cassation appeal is submitted when the resolution is void, impermissible or inaccurate. This is why the right of cassation appeal is presented and guaranteed by the law opportunity of an individual to oblige Supreme Court of Cassation to rule on the first stage of cassation proceeding - the proceeding on allowing the cassation appeal estimating the statutory criteria in art. 280 of Civil-Procedure Code.

Podstawy kasacyjne i ich uzasadnienie w najnowszym orzecznictwie Naczelnego Sądu Administracyjnego

This article represents the views of judicial decisions in the formulate of the cassation appeal’s base and their justification in the recent case law of the Supreme Administrative Court. The introductory part presents the character of the institution cassation appeal and the position of the Supreme Administrative Court in the structure of the judiciary and its property, including the consideration of remedies and an appeal in cassation. The main part shows the components of a cassation appeal, the grounds and the reasons behind them pointing out the basic requirements in this area outlined by judicial decisions and legal consequences in their absence.

Glosa do postanowienia Naczelnego Sądu Administracyjnego z dnia 16 października 2013 r., sygn. I OZ 805/13, Lex nr 1397205 (dotyczącego kolizji wniosku o przywrócenie terminu ze środkiem odwoławczym w postępowaniu sądowoadministracyjnym)

So far, the case law of the Supreme Administrative Court considered that when the party lodged a cassation complaint against the decision to reject the complaint, the beginning of the period to file an application for relief with the date of receipt of the final ruling conclusive on the cassation appeal, while at the same time requested for restoration of term it is premature and must be dismissed as inadmissible. The issue of failure and restore the term regulated by art. 85–89 of the Act of 30 th August 2002 Law on proceedings before administrative courts (l.p.a.c.). From the above provisions it does not imply that the request for relief filed simultaneously with the appeal should be rejected as inadmissible. The notion of mutual exclusion of these institutions to process only means that both of these procedural measures can not be both justified and thus not included. If both procedural actions satisfy the conditions for them to formal requirements, it is necessary to give them the proper gear. Provincial Administrative Court must first give a running complaint, and in the case of dismissal proceed to examine the application for relief. You can not agree with the reasoning presented in voting ruling views concerning the beginning of the period to file an application for relief. The Supreme Administrative Court pointed out that the limitation period can be counted from the date of receipt of copy of the order dismissing the complaint only exceptionally. The seven-day deadline to submit an application for restoration of the term of art. 87 § 1 l.p.a.c. begins to run from the date of termination of the term causes of the failure. So this is a circumstance exists objectively, however, subject to modification in the event of a remedy. The constitutional principle of the right to a court and court proceedings indicate that the party disagreeing with the assessment of the court, that fulfill the term, may lodge an appeal against that decision. Only the court of appeal may assess whether in fact there has been prejudice to the period. It was not until the final resolution of this matter will start the period for submission of the application for relief.

Lo nuevo y lo viejo del recurso de casación contencioso-administrativo: admisibilidad y motivos de impugnación

By means of this work it is tried to approach the analysis of the main challenges that the juridical operator finds at the moment of channelling the resource of cassation, both at the time of their initial preparation in the instance, and subsequently when formulate the application initiating proceedings before the Third Chamber of the Supreme Court. This study it is carried out within the new institutional law, recently approved, in order to verify the validity of the judicial doctrine that up to the date is been developed on the matter, and explore the orientation that this legal framework, likely, may provide on it, about two specific issues: the admissibility of the cassation appeal and the grounds for a legal challenge.

Comparative Analysis of Appeal and Appeal in Cassation Procedure for Considering Criminal Cases

The article analyses the correlation of appeal and appeal in cassation procedure for criminal cases and compares the object and subject of appeal and appeal in cassation. The author singles out their features, including those set by the ECHR and the Constitutional Court of the Russian Federation, making it possible to distinguish between the appeal procedure and appeal in cassation procedure for criminal cases. The article discusses the features of excitation of appeal and cassation procedure, as well as their impact on the effectiveness of the judicial review. The author examines particularities of the organization of the court system, enabling appeal in cassation and outlines the factors that allow the Supreme Court of the Russian Federation provide for greater integrity of judicial practice and law. The author notes the importance of the principle of legal certainty as a basis for truth of the judgement for the system of verification of the stages of the criminal procedure. To differentiate between an appeal and appeal in cassation procedure the author determines the possibility of a separate check of the actual circumstances of the criminal case and legal issues, the impact of these factors on the convicted or aquit-ted person's participation in the meeting of the courts of appeal and cassation; the grounds for cancellation or modification of the judgement; procedure for review of judicial decisions; decisions taken by appellate and cassation courts. Comparative analysis of negative effects of appeal and appeal in cassation is conducted. The ratio between the timing of the appeal and appeal in cassation, as well as the impact of the latter on the evaluation of ECHR Russian appeal as ineffective remedies is considered. As a result, an effective remedy to be exhausted based on P. 1 Art. 35 of the ECHR is the appellate review of judicial decisions. The author explores the special powers of the President of the Supreme Court of the Russian Federation and his Deputy in review of court decisions (P. 3 Art. 401.8 of the the Criminal Procedural Code of the Russian Federation). The author outlines the features of appeal in cassation procedure indicating its extraordinarity, which helps to ensure the legal stability and legal certainty.

The Criterion of Significance of Violations of Material and Procedural Law in the Exercise of Cassation Appeal in Civil Proceedings

This article is devoted to the problem of fixing in the chapter of the Code of Civil Procedure of the Russian Federation, regulating the procedure in court of the cassation instance, a single criterion of significant violations of material and procedural law standards, as well as determining the content of “guidelines” for both the applicant and the court, providing for the unconditional cancellation of judicial decisions of lower courts. The Author comes to the conclusion that the presence in the Civil Procedure of the Russian Federation of such stable phrases as “significant violations of the norms of substantive and procedural law” and the absence of their normative interpretation significantly limit the exercise of the right of citizens to access to court.

Samokontrola sądowa w ramach skargi kasacyjnej — wybrane zagadnienia

Self-review of administrative courts — selected issuesThis article focuses on the matter of judicial self-review in the proceedings of administrative courts. From 15 August 2015 administrative courts can change their own rulings, when a party brings a cassation appeal. In this article the following topics are discussed: the admissibility of self-review; the basics of self–review; proceedings of self-review and appealing against the ruling issued as a result of self-review.