Today “the Russian newspaper” publishes the decision of Plenum of the Supreme court that lawyers are already called breakthrough. In fact, we have secured the elements of case law.
the Documents explain the intricacies of consideration of cases in appeal and cassation instances. In the decision concerning the appeal courts a clear guideline: to verify the findings of the first instance and appeal for compliance with the legal positions of the Supreme court of Russia. If the lower court reasoned as something in its own way, the decisions made should be canceled.
Judicial practice should be uniform throughout the country. Can’t be any special – Ryazan and Ural – interpretations of the law. We must understand that to the standard case, the surprise is, judges decide, as expected, but not as they please.
Sometimes in practice, indeed, there are controversial issues and at first no unified approach. For example, in one region the tax authorities began to demand that citizens of the so-called taxes on purchases. For example, the farmer bought an expensive car. And the tax billed, saying that we haven’t seen how you earned the money, but somewhere they have you there, you have to pay their taxes. The car was worth a million? Well, said the tax you have to pay into the Treasury of 130 thousand rubles. All is fair.
several courts have agreed with this logic, some don’t. Was wondering when the first case goes to the Supreme court of Russia.
the High court clearly said: no, such a tax illegal. The rights of citizens were protected from now on. As soon as the Supreme court has spoken and cancelled the “tax purchase” in a particular case, all the other similar cases decided by themselves. Where the tax has removed itself claims, where the courts rejected its claims. The very same case-solution was included in the overview of court practice of the Supreme court of Russia. If someone have a problem, you can refer to this document. But the problems will not arise, the tax inspecie are law-abiding, not do not. That’s the way it works. However, as says lawyer Vyacheslav guests receive, in practice, sometimes the courts pretend not to notice the legal position the high court.
So those actions he called a significant step forward. Published in today’s issue of “RG” resolution of the Plenum give explanations to courts of arbitration. However, according to experts, similar approaches can and should be fixed in relation to the cassation courts of General jurisdiction, as in cases considered by the CPC, and subject to the administrative procedure Code.
“appellate practice arbitration cassation courts were established almost 30 years – said Vyacheslav guests receive. – The rules of the code of civil procedure and code of administrativeadministrative proceedings on the “new appeal” largely borrowed from the provisions of APC RF the arbitration cassation proceedings”.
So the courts have no right to ignore the legal positions of the Supreme court.
“Therefore, it is reasonable to spread the positive experience of arbitration appeal courts and the appeal courts of General jurisdiction, says lawyer Vyacheslav guests receive. But it is extremely important that actions now will improve the practice in courts of arbitration”.
He gave an example from his practice. Sometimes, a large company artificially divided up into several smaller organizations that each of them paid the tax under the simplified system. In principle it is a violation, as is a typical scheme of tax evasion. When the tax on catches of entrepreneurs on this, it presents a valid claim. But the question arises, what is the formula to calculate VAT in this case. There are two options, in one case more and in another less.
According to counsel, the Supreme court has repeatedly expressed the position that such things should be used in a humane formula. But some arbitration courts continue to make decisions contrary to the legal approach of the high court. Now they will be required to take into account the review of jurisprudence of the Russian Supreme court and the definition in specific cases. And explain why they are not suitable in this case, if, in the opinion of the court, the case is quite different.
In his turn, lawyer Alexey Sikaylo noticed that both decisions are interesting primarily in terms of clarifying this category of Complainants as “other persons, about the rights and duties which adopted the contested judicial act”. Simply put, those who did not participate in the proceedings at first instance, was not a party to the process, but still can’t stay away. “It is proposed to interpret this category of persons wide enough”, – stressed the lawyer.
case law originates in Britain and is the basis of the judicial systems of many former colonies of the British Empire. In the United States during the trials unfold the real battles between defenders and prosecutors, each side brings their examples were received during the consideration of similar Affairs. The fact that during the colonial period, the judges used the English collections of forensic reports to reach a verdict on a particular dispute, taking into account the local customs. It is noteworthy that lower courts must follow the decisions of higher (up to the Supreme), however, may not be guided by informed the verdict, creating a new precedent. The complexity of the system lies in the fact that in every the U.S. state has its own legal system with its precedents.
In France, in practice, the increasingly important role played by precedents, and that there is a logical explanation. The fact that the interpretation of laws and then there are the gaps, and the obligation to fill them on the basis of existing cases assigned to the court of Cassation, as indicated in article 4 of the French Civil code. Moreover, decisions on these issues are published in special collections, which allows judges to make new precedents and apply them in similar cases. Moreover, judicial precedents are widely used in administrative justice, where the highest court is the Council of State. Namely starting from the precedents, he makes many of his decisions. However, the strict duty of lower courts to look to precedent decisions of the parent in France not.
the Judicial decisions of the Supreme court of Cassation of Italy are required only for each presented case, but not always a precedent for other future cases. However, a judicial decision, after the appeal phase, can be perceived by other courts as precedent. “In preparation for any process is necessarily case-study verdict on appeal. Nevertheless, the decision is up to the specific court of first instance or court of appeal, which can take note of the verdict of the Cassation court”, – told “RG” master of international and European law, international lawyer “Law offices of Grasso” Natalia Grasso.
Prepared n (Rome) (Paris), Yuri Kovalov
