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UDC 340.5; 347.9
Колесников Б. Н. Аспирант Киевского университета права
НАН Украины DOI: 10.24411/2520-6990-2019-10253 СРАВНЕНИЕ ПРОЦЕДУРЫ ДОПУСКА АПЕЛЛЯЦИОННЫХ ЖАЛОБ СУДАМИ АПЕЛЛЯЦИОННОЙ ИНСТАНЦИИ В УКРАИНЕ, ФРАНЦИИ, ГЕРМАНИИ И ОБЪЕДИНЁННОМ КОРОЛЕВСТВЕ.
Kolesnikov B.
post-graduate of Kyiv's university of law of the Academy of Legal Sciences of Ukraine
COMPARISON OF APPEALS ADMISSIBILITY TO THE COURTS OF APPEAL IN UKRAINE, FRANCE, GERMANY AND UNITED KINGDOM.
Аннотация.
В статье уделено внимание процедуре допуска апелляционных жалоб на решение нижестоящего суда в Украине, Франции, Германии и Объединённом Королевстве, и сделано их сравнение. Проанализированы нормативно-правовые акты, а также мнения различных ученых и юристов. Сделаны выводы, которые в дальнейшем можно использовать при внедрении упомянутой процедуры в Украине, а также странах, где она не предусмотрена.
Abstract.
This article deals with comparison of admissibility procedure of appeals in Ukraine, France, Germany and United Kingdom. Here were analyzed some legal documents and opinions of lawyers and legal researchers, and made conclusions that can be used in establishing such procedure either in Ukraine or in other countries that have not such admissibility check.
Ключевые слова: апелляция, допуск, апелляционная жалоба, обжалование.
Key words: appeal, admissibility, permission to appeal, appeal filter.
Introduction.
Judicial reform in Ukraine could be characterized as the one that brought extraordinary amount of changes that require much more time than one year to be fully adopted in practice.
Some changes are quite useful, but some of them are not, and many lawyers and legal researchers brought their attention to latter issue. Some of these changes amended the appeal procedure in Ukraine. For example, there were enacted: new period and order of going to appeal; new court fees; new timescales of decision revising etc. These could be useful if legal practice was also included in these changes (for instance: legal practice wasn't included in condition of passing new time period to appeal; new court fees just made the cost of proceedings bigger that caused lowering accessibility of appeal proceedings; amendments aren't based on real ability of courts of appeal to revise a case in new timescales etc.). And, as the blunder of reform, a procedure of admissibility of appeals was not enacted.
Thus, this article deals with such admissibility analysis as it is in France (partially), Germany and United Kingdom, and should be implemented in Ukraine.
Main text.
Firstly, we need to clarify current situation in procedure of admissibility of appeals in Ukraine to avoid further questions. Currently there are two main articles of the Code of civil procedure of Ukraine (hereunder-«CPC Ukraine») [1]:
— art. 357 that stipulates the occurrences of leaving an appeal without a motion (inappropriate form of
appeal, omission of the time limit to appeal etc.) which results in granting additional period to correct mistakes. Also, it deals with procedure of returning appeal back to the appellant (for example: complaint wasn't lodged directly to an appeal court (that's disputable issue because of legal practice [2] and para.1 art. 31, 351 CPC Ukraine which prescribe the court's obligation to send an appeal to appropriate court in case if appeal was brought to a court of appeal with breaching the rules of jurisdiction—thus mentioned provision doesn't work).
— art. 358 which determines occurrences of rejection to begin appeal proceedings, such as: decision cannot be revised in appeal, appellant already refused his appeal or lodged the same appeal in the second time.
Above-mentioned provisions are the «mechanism of selection of appeals» (hereunder — «filter», «mechanism»). In result of such "mechanism", we can make conclusion that there is no "filter" in Ukraine and the only obstruction to appeal is court fee. Thus, despite appeal's argumentation, its real prospect of success — court of appeal will begin appeal proceeding (equivalent of permission to appeal). As result, parties are granted with ability to abuse the right to revise a court decision (for instance for the purpose to delay the enforcement of decision or to intentionally lose a case in first instance court for to win it by further appeal (to obtain bigger amounts of reimbursements and remuneration) etc.).
Thus, we can make the conclusion about the absence of admissibility procedure of appeals in Ukraine.
Now let's take a look on the other countries.
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In France to "filter" next provisions of Civil procedure code of France could be related [3]:
— art.581, which stipulates the financial penalty for lodging an appeal for the purpose to cause delay or abuse the right of appeal.
— art. 628 prescribes the same but in reliance to appeal to Court of Cassation of France.
Lawyer E. Poisson brought his attention on the fact that "French courts are generally overwhelmed by the number of cases they have to hear, which explains why these proceedings are so lengthy" [4] that is caused by the absence of "filter" which resulted in nonexistence of real barriers to appeal. Also, L. Cadiet states that in French law is the rule which prescribes that dissatisfied party must have an opportunity to appeal in any reason thus, resulting in congestion of the courts of appeal [15].
In Germany situation is significantly better. But before to make "filter" analysis in Germany we should clarify the definition of "appeal" because of meaning that differs from the one in Ukraine. Due to functioning only one first instance courts in Ukraine (not including occurrences when higher courts must consider cases as first instance courts) mentioned term has different meaning for France, Germany and United Kingdom. In Ukraine, the term "appeal" mostly means a complaint on a decision of first instance court to appropriate court of appeal. But in mentioned countries it means a complaint on decision of first instance court to appropriate higher court or to appropriate higher judge. Thus:
— a decision of small tribunal can be appealed to a court of appeal, big tribunal's decision — also to an appeal court, decision of appeal court — to the Court of Cassation (France) [3; 9];
— local court's decision — to regional court, regional court's decision — to higher regional court, higher regional court's decision — to Federal Court of Justice (Germany) [5; 6];
— decision of district judge of local court — to local judge of local court, decision of local judge of local court — to the High Court, decision of the High Court — to the Court of Appeal, decision of the Court of Appeal — to the Supreme Court (United Kingdom) [7; 8].
Thus, term "appeal" means first instance court's decision reconsideration dealt by higher court or by a higher rank judge.
Back to "filter", Code of civil procedure of Germany in art. 522 [5] determines the mechanism of admissibility check of appeals:
1. The Court of Appeal shall examine of its own motion whether the appeal is admissible and whether it is lodged and justified in the legal form and time limit. If one of these requirements fails, the appeal must be rejected as inadmissible.
2. The Appeal court shall reject an appeal without delay if it is unanimously satisfied that: appeal obviously has no prospect of success; the case is of no fundamental importance; further training of law or the safeguarding of a unified jurisprudence is not required; an oral hearing is not required.
The Court of Appeal or the Chairman must firstly inform the parties of the intended rejection of the appeal
and the reasons for it, and give the appellant the opportunity to comment within a specified period.
3. Appellant is entitled to appeal against the decision under subsection 2, first sentence, which would be admissible in a ruling by a judgment.
According to A. Klein, F.-P. Kuhnle, S. Rützel, A. Leufgen and E. Wagner, above-mentioned provisions are related to second appeal — to Federal Court of Justice [10; 11]
Concerning appeal to regional court or higher regional court — the claim demands must be more than 600 euros or if not - granted with permission from court which made a controversial decision (art. 511 CCP Germany), which also noticed by U. Stimmel [5; 4].
Thus, we can make the conclusion about existing and functioning in Germany specific admissibility procedure of appeals. Which nonetheless doesn't cause notable lowering of workload of courts, taking into account the information about annual workload of appeals. In that issue the Cologne Higher Regional Court reviews up to 11 500 cases each year [12]; the Federal Court of Justice annually revise over 3000 appeals. Additionally, E. Rüdiger highlighted about the overall amount of revisions made by regional and higher regional courts in number of 110 000 [14].
About the United Kingdom there also the wider meaning of "appeal" is in use, which leads to the possibility of appeal to higher court or judge (within regional court).
Among the provisions that deals with the matter of admissibility or permission to appeal we can single out:
— para. 52.3, 52.6, 52.7, 52.8, 52.11, 52.12, 52.13, 52.17, 52.23 Section 52 of Rules and practice directions of civil procedure (hereunder — «CP Rules») [7]. They deal with general provisions that are used in issues relating to admissibility of appeals and general provisions in the argumentation exchange between parties.
— para. 4.1, 4.3 - 4.7, 5.1, 6.4 Section 52-A of CP Rules [7]. Concern matters of obtaining the permission to appeal and possibility to appeal within local court, to High Court and Court of Appeal.
— para. 1.1, 2.1, 2.2, 3.1 - 3.3, 4.1 - 4.3, 6.1 - 6.6, 8.2 - 8.3 Section 52-B CP Rules [7]. Contain provisions that regulate the order of appeal within local curt and to High courts, initialization of revision procedure, content of different document bundles.
— para. 4 - 32 Section 52-C CP Rules [7] — regulate the exchange procedure and terms between parties and the court, quantity and varieties of documents and bundles of documents, definitions of skeleton and supplementary argumentation.
Unlike the previous, we won't cite mentioned provisions, but as result of their analysis we can conclude that appeal procedure is strongly regulated. And either is "filter" because of specifying in these provisions the grounds for appeal (first and second appeal), appeal procedure, breaching of which may result in judge's rejection to continue appeal proceeding, demands for documents, that must be provided in bundles and that must be affirmed with judge (making it impossible to cheat by not serving the other parties with appropriate evidences/documents which were brought to court) etc.
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In the end there could be made several conclusions:
1) as for present in Ukraine the mechanism of ad-missibility check of appeals is absent, which result in the fact that courts of appeal are overwhelmed with appeals and this status is partially caused by mentioned reform that resulted in increased amount of appeals (in two times in civil cases). Thus, Ukraine should pay attention to more improved countries, where "filter" is stipulated. However, not exclusively on it but on other features that also effect overall situation in judicial system. Because implementing something new without proper control doesn't always cause improvements (for example — reformed Supreme Court raises many questions concerning his effectiveness).
2) Either in France and Ukraine the right to appeal is automatic, the one that is not restrained or slightly restrained.
3) In Germany and United Kingdom are appeal "filters", and Ukraine should pay its concern to Germany first, because of law system likeness to the one in Germany and some provisions should be borrowed and implemented to Ukrainian law.
4) The "mechanism of admissibility of appeals" definition is — provisions stipulated by law which primary objective is not to lower courts workload with appeals, but to not allow just and lawful decisions to be revised which result not only in the review of cases that really need this but also in costs economy and making it impossible to "appeal just for appeal".
References:
1. Code of civil procedure of Ukraine, be current as of 09.04.2019; Law 18.03.2004 № 1618-IV. URL: http://zakon2.rada. gov.ua/laws/show/1618-15/print1509656728410350
2. Supereme's Court decision, 20.06.2018/ Supreme Court, 2018. URL: http://reyestr.court.gov.ua/Review/74963333
3. Code of Civil Procedure of France, as amended on 09.04.2019; Code, 1976. URL:https://www.legifrance.gouv.fr/affichCode.do;js es-
sionid=41D7E95060F5DF388DF97523DC993D66.tpl gfr32s_3?cidTexte=LEGITEXT000006070716&dateT exte=20190305
4. Poisson E., Stimmel U.: «Civil Procedure Rule Committee Consultation: Appeals to the Court of Appeal: proposed amendments to Civil Procedure Rules and Practice Direction. Appendix 5: Survey of appellate justice in other jurisdictions compiled by Allen and Overy. France, Germany»/ Erwan Poisson, Ulrike Stimmel, Allen & Overy, 2016. URL: https://www.ju-diciary.uk/wp-content/uploads/2016/05/appendix-5-survey-of-appellate-justice-in-other-jurisdictions-com-plied-by-allen-and-overy.pdf
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5. Code of Civil Procedure of Germany, as of 09.04.2019; 1950. URL: http://www.gesetze-im-intemet.de/zpo/BJNR005330950.html
6. Courts Constitution Act, as amended on 09.04.2019; 1975. URL: https://www.gesetze-im-internet.de/englisch_gvg/englisch_gvg.html
7. Rules and Practice Directions of civil process of United Kingdom, as amended on 09.04.2019. URL: http://www.justice.gov.uk/courts/procedure-rules/civil/rules#pagetop
8. Cain O., Carr D.: «Litigation and enforcement in the UK (England and Wales): overview»/ Oliver Cain, Danielle Carr, SCA ONTIER, 2018. URL: https://uk.practicallaw.thomsonreuters.com/7-502-0631?transitionType=Default&contextData=(sc.Defau lt)&firstPage=true&comp=pluk&bhcp=1
9. Code of Judicial Organization of France, 13.03.2019; 1978. URL: https://www.legifrance.gouv.fr/affichCode.do?dateTe xte=20190307&cidTexte=LEGITEXT000006071164 &fastReqId=1165829131&fastPos=1&oldAction=rec hCodeArticle
10. Klein A., Kuhnle F.-P.: «Appeals. Germany»/ Andreas Klein, Federico Parise Kuhnle, White and Case, 2018. URL: https://gettingth-edealthrough.com/area/98/jurisdiction/11/appeals-2018-germany/#top
11. Rütze S.l, Leufgen A., Wagner E.: «Litigation and enforcement in Germany overview»/ Stefan Rüt-zel, Andrea Leufgen, Eric Wagner, Gleiss Lutz, 2017. URL: https://uk.practicallaw.thomsonreuters.com/1 -502-
0728?transitionType=Default&contextData=(sc.Defau lt)&firstPage=true&comp=pluk&bhcp=1
12. Overall information about the Court/ The Cologne Higher Regional Court, 2019. URL: http://www.olg-
koeln. nrw. de/beh_sprachen/beh_sprache_EN/002_the _court/index.php13. Decisions of the Federal Court of Justice/ Federal Court of Justice. URL: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/list.py?Gericht=bgh&Art=en&Dat um=Aktuell&Sort=12288
14. Rüdiger, Ernst: « The appeal in German civil procedure and the length of the process: Facts and figures, problems and solutions»/ Ernst Rüdiger, 2013 URL: http://www.advokatura.lt/down-load/42640/prof%20rudiger%20ernst%20pranesi-mas.doc
15. Cadiet, Loïc: «Introduction to French Civil Justice System and Civil Procedural Law»/ Loïc Cadiet, 2011. URL: http ://www. ritsumei.ac.jp/acd/cg/law/lex/rlr28/CADIE T3.pdf
