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Armed Forces of the Russian Federation: the legal position expressed in the refusal of the Supreme Arbitration Court of the Russian Federation does not matter

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The category of “legal positions” is important and should not be underestimated. The fact is that legal positions are, in essence, law in action, or, in another way, the life of law. Legal norms are logical-linguistic phenomena, figuratively speaking, something frozen in the normative legal texts. The implementation of the rules, their application is a complex independent phenomenon associated with specific circumstances, events, changing ideology, economic fluctuations, etc. All this cannot but affect the quality of the implementation of legal norms in general and law enforcement in particular. Legal positions, especially judicial ones, are “living law”. All this speaks in favor of the fact that this problem requires in-depth study.

The category “legal position” appeared and began to be comprehended in Russian jurisprudence relatively recently. According to modern legal scholars, this is mainly due to the functions and activities of the Constitutional Court of the Russian Federation. In this regard, the concept of “the legal position of the Constitutional Court of the Russian Federation” was mainly subjected to deep scientific study.

As for the study of legal positions in the general theory of law, here, among the first researchers, V. M. Baranov and V. G. Stepankov should be mentioned. The authors note: "The legal position belongs to the category of general theoretical concepts, which not only can, but should be extended to a much wider range of legal phenomena." According to Yu. A. Tikhomirov, “a legal position is an assessment of acts and actions in one conflict situation, which is stably repeated in similar situations, actions and acts.” As you can see, here the concept of "legal position" is associated with a conflict situation and emphasis is placed on such signs of the phenomenon under study as stability and repeatability in solving legal cases.

More cautious in judgments about this legal phenomenon.

V. A. Tumanov, who believes that this concept has recently received an independent citizenship right in the legal doctrine, but does not yet have a sufficiently clear universally accepted definition. In the most general terms, we can say that it hides the prevailing attitudes in law enforcement practice, from which they proceed when considering specific cases, confirmed by the repeated application of the interpretation of legal concepts and norms, criteria developed by practice to consider certain categories of cases.

As noted, to a greater extent, a theoretical analysis of the legal nature of legal positions has been done by the authors of constitutional law science, which is obvious due to the considerations expressed above.

Many constitutionalists tend to understand this phenomenon as legal argument systems underlying decisions of the Constitutional Court of the Russian Federation. Such a point of view is set forth, for example, in the commentary on the Law on the Constitutional Court of the Russian Federation. A similar position is expressed by L. V. Lazarev, interpreting the legal position contained in the decisions of the Court as interpretation constitutional and legal principles and norms that become a system of legal arguments and underlie the decisions of the Constitutional Court of the Russian Federation.

M.S.Salikov made an attempt to distinguish between the legal position and the argumentation system that underlies the decision of the Constitutional Court of the Russian Federation, believing that the phenomenon of the legal position is a system of conclusions and arguments identified during the consideration of specific cases on purely defined problems and having a general character (i.e., acceptable and necessary to solve such problems in resolving subsequent cases), and mandatory (i.e., having the same legal force as the decisions of the Constitutional Court of the Russian Federation).

V. A. Kryazhkov interprets the judicial legal position as the attitude of the Constitutional Court of the Russian Federation to significant constitutional and legal phenomena reflected in its decision (s). V. I. Anishina argues in the same vein and believes that the legal positions of the Constitutional Court of the Russian Federation should be understood as the attitude of the Court to certain legal problems, enshrined in its decisions and forming the intellectual and legal content of the court decision.

EA Nikolaev believes that the legal position of the Court is “an agreed conclusion proclaimed by the name of the Russian Federation, obtained according to the rules of logical inference from its premises and is a sufficient basis for making a final decision by the composition of the Court established by law”.

N.V. Vitruk understands the legal position as “legal conclusions and representations of the Constitutional Court as a result of interpretation (interpretation) by the Constitutional Court of the spirit and letter of the Constitution of the Russian Federation and its interpretation of the constitutional meaning (aspects) of provisions of branch (current) laws and other normative acts within the competence Of the Constitutional Court, which remove uncertainty in specific constitutional and legal situations and serve as the legal basis for the final decisions (decisions) of the Constitutional Court. ”

In the legal literature there are other, more concise definitions of the legal position of the Constitutional Court of the Russian Federation. So, B. A. Strashun understands legal positions as universally binding prescriptions for the legislator and law enforcer. N. S. Bondar understands them as normative principles in the decisions of the Constitutional Court of the Russian Federation.

L. V. Vlasenko writes that “a legal position is a logical-linguistic phenomenon that has a legal character, where statements and conclusions are its center, a substantive basis.”

Thus, we can draw the following conclusion. In modern legal literature there is no consensus on the issue of what is meant by the legal position, including the legal position of the court in general and the Constitutional Court of the Russian Federation in particular. Meanwhile, a special analysis of the available literary sources shows that in most cases the legal position is traditionally associated with a law enforcement decision (most often judicial) and understand how a system of arguments of a motivational nature when making a final decision.

This point of view does not cause particular objections, but it seems that the category of “legal position” is much wider than the system of arguments and arguments of the enforcement decision.

Turning to philosophy allows us to interpret the position as a certain principle, the beginning, in accordance with which something is affirmed, established or located. And the theoretical basis of the concept of “legal position” should also come from this postulate.

In view of the foregoing, legal positions should be understood as ideas, principles, and legal motives based on them for legal solutions to the actual situation. The most important sign of legal position is structuredness their content. The point is that certain factual data that reveal the need for legal regulation, it is proposed to adjust in accordance with any beginning. When relations are already regulated by legal norms, their more perfect legal regulation is often proposed. In any case, the logic of the legal position is based on evidence, motives and ideas of their legal regulation.

Thus, the legal position is the concept of a general theory of law, which is a product of the mental activity of a person, primarily a lawyer. The concept, as noted, is based on a principle, an idea, on the basis of which a proposal is built (version, hypothesis, recommendation, etc.) that provides a solution to a legal problem.

It should be borne in mind that the nature of legal positions is formed by pragmatics - a person’s attitude to real things. This is a kind of philosophical source base.

So, under legal position one should understand the assessment of actual reality and the system of arguments, conclusions and proposals for its legal settlement. The legal position is undoubtedly a logical-legal construction expressing the attitude to law, legal norms or relations that need, from the point of view of the subject, to be mediated by law.

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Comments (91)

True, the question then arises: why then did the three judges in general motivate their rejected decisions? :)

Today I just sent a cassation appeal to the Armed Forces of the Russian Federation and once again thought: according to part 5 of Art. 378 Code of Civil Procedure of the Russian Federation "Attached are certified by the relevant court copies of court decisions adopted in the case."
Here are all the rulings adopted on the refusal to transfer the cassation appeal (the regional court to the presidium, the Supreme Court of the Russian Federation to the judicial board) - these are court orders (part 1 of article 13 of the Code of Civil Procedure of the Russian Federation, part 2 of article 381 of the Code of Civil Procedure of the Russian Federation). Only now, if the decision of the court of first instance is understandable for what reason it is necessary to apply to the cassation appeal, then with quasi-judgments (the same definition of refusal of transfer) - the question.

Yes, and the Constitutional Court of the Russian Federation indicates (but here again, the “failed definition”) the correct position:

“Since the cassation appeal or the prosecutor’s submission is submitted directly to the court of cassation (the first part of Article 377 of the Civil Procedure Code of the Russian Federation), copies of the appealed judicial decisions should have been submitted to the cassation court along with the complaint”

Definition of the Constitutional Court of the Russian Federation of January 29, 2015 N 126-О, for example.
Those. indicates "appealed." Logically, the judge receives a cassation appeal without a case.

But in the agro-industrial complex, for example, “and other judicial acts adopted in the case” - clause 1 of part 5 of art. 291.3 Agribusiness Code of the Russian Federation.
However, it is hard to imagine why the judge (to make a decision - transfer / not transfer) to study the "refusal of the definition."
Although it is still possible to "take the case" to understand differently.

“Part 6 of Article 301 of the APC of the RF obliged the“ troika ”to indicate the reasons for refusing to refer cases to the Presidium. "

Of course, I know the content of this norm.

My question is: why is this needed? If the faulty definitions are junk? )

Naturally, I agree with the opinion of the Armed Forces of the Russian Federation that the refusal of the Supreme Arbitration Court of the Russian Federation does not form a practice. In the same way, it is completely clear to me that the refusal of the judges of the Supreme Court of the Russian Federation also does not constitute practice. I agree with Roman. These are not quite judicial acts, i.e. not quite acts of justice. However, you may encounter the following objection:

The basis for the abolition of judicial acts by way of supervision for the Presidium was a violation of uniformity. Those. based on a literal interpretation, the refusal of the Supreme Arbitration Court of the Russian Federation assessed not the correctness or incorrectness of the judicial act, but completely different circumstances.

In the new version of the APC of the Russian Federation, the basis for the second appeal is a substantial violation. Therefore, for the transfer to the cassation, the judge assesses just the correctness or incorrectness of the judicial act.

Based on such a Jesuit interpretation, some may conclude that the refusal of the Supreme Arbitration Court of the Russian Federation does not form practice, but the refusal of the judges of the Armed Forces of the Russian Federation form!

“The basis for the abolition of judicial acts by way of supervision for the Presidium was a violation of uniformity. Those. based on a literal interpretation, the rejected determination of the Supreme Arbitration Court of the Russian Federation did not evaluate the correctness or incorrectness of the judicial act, but completely different circumstances ”

There is a certain cunning.

All (or almost all) YOU judges understood that their task was not to correct all judicial errors made by the courts.

About 20 thousand complaints a year were included in the EAC, approximately half of them were correct in the sense that the judicial acts in the case were erroneous.

The Presidium could “digest” a maximum of 500 cases per year, so YOU ​​judges understood that it was necessary to select the most interesting.

Of course, to write in the definition that the legal issue that is present in the case “is insignificant, boring, irrelevant for the development of law and therefore not worthy of attention”, no one would have raised a hand.

Therefore, the triples wrote things in refusals, which, as a rule, did not have a valid basis for refusing to transfer.

And they transferred cases to the Presidium on the grounds that 95% of lawyers did not even know about (in other words, the transfer to supervision of 95% was not the merit of the applicant).

From this point of view, of course, the motivation for rejection definitions is complete nonsense.

On the other hand, as I understand it, the possibility of making an unmotivated judgment that a case is not referred to the high court is possible only in the case of the highest and implicit authority of high court judges in the legal community.

Can this be said about the composition of the judges of YOU? Of course, among them there were great judges, known to everyone, there were excellent judges whom no one knew, alas, there were those who wore the mantle for some misunderstanding. Therefore, it seems to me that the decision to motivate the rejected people as a whole was probably correct and consistent with the moment. Another thing is that what the triples did was often a hack.

Can the argument about exemption from motivation for high judges as the most authoritative lawyers be put forward in relation to judges of the Supreme Court?

Do your colleagues know the names of the judges of the Supreme Council, are they familiar with their political and legal views, do they read their books and interviews, do they attend their public lectures? Does the community trust the opinion of the conditional judge “X” that they are ready to free him from the need to motivate his judgment on the complaint?

“YOU judges understood that their task was not to correct all judicial errors made by the courts”

Fuck (there is no other word). And where then to correct these errors.

“20 thousand complaints were included in the year, about half of them were correct in the sense that the judicial acts in the case were erroneous. The Presidium could “digest” a maximum of 500 cases per year, so YOU ​​judges understood that it was necessary to select the most interesting. "

Those. a person (legal entity) is deprived of the right to defense only because his dispute is not interesting to the judge.

“Approximately half of them were correct in the sense that the judicial acts in the case were erroneous”

It is interesting whether the consciousness of the lawyer (judge) is deformed by the fact that he regularly sees something illegal, but because of the organizational features of the structure in which he is located, he does not react at all, although he is called to it.

Does this corrupt a judge who is inactive?

Constant tolerance of evil - in this case, lawlessness (in the broad sense of the word) committed by lower courts, should dull the sense of honesty.

And if you also explain it to yourself with some extraordinary and exclusiveness of a higher court, then connivance to evil mixes with thoughts of one’s own superiority. Cool court))

And then there is all the talk at conferences about the high mission of law, ideals and values.

“Does this corrupt a judge who is inactive? "

«
then connivance to evil mixes with thoughts of own superiority. Cool court))
»

“All (or almost all) YOU judges understood that their task was not to correct all judicial errors made by the courts.

About 20 thousand complaints a year were included in the EAC, approximately half of them were correct in the sense that the judicial acts in the case were erroneous.

The Presidium could “digest” a maximum of 500 cases per year, so YOU ​​judges understood that it was necessary to select the most interesting.

Of course, to write in the definition that the legal issue that is present in the case “is insignificant, boring, irrelevant for the development of law and therefore not worthy of attention”, no one would have raised a hand.

Therefore, the triples wrote things in refusals, which, as a rule, did not have a valid basis for refusing to transfer.

And they transferred cases to the Presidium on the grounds that 95% of lawyers did not even know about (in other words, the transfer to supervision of 95% was not the merit of the applicant). "

From the above it turns out that YOU itself gives subordinate indulgence to ignore its own position.

Yes, the risk of cancellation by 2 or 3 instances remains, but it is low - the inertia of the judicial system + plus the incompetence and indifference of judges - this is a mine for this risk.

The statistics of ignoring YOU positions with such an approach should be simply huge.

That is, it turns out that the EAC is almost useless for subsequent cases after its position: in reality, it is a quasi-legislative body with limited judicial functions.

I will explain with an example.

Supervision takes one of 500 cases, speaks up on it, regarding how the law should be applied.

The subsequent applicant refers to the position of the Supreme Arbitration Court of the Russian Federation on a case that is similar to a degree of confusion.

After the Supreme Arbitration Court of the Russian Federation has already announced its position, 3 instances can safely or unintentionally ignore the position of the Supreme Arbitration Court, because at least the judges need to a) know the practice b) read at least the complaints of the party that refers to the position of the Supreme Arbitration Court .

For YOU, the complaint, it turns out, should not fall into those cherished 500 cases - because On this occasion YOU has already spoken out.

Therefore, the business following the already expressed position of YOU ceases to be interesting or significant.

That is, it turns out that with an expression of the position of the Supreme Arbitration Court of the Russian Federation on a certain category of cases, an indefinite circle of people is denied access to 4 instances. Ну ладно, это еще можно принять - с одной стороны, 3 инстанции достаточно, и вроде как ВАС делает, что может.

С другой - получается, сам ВАС дает нижестоящим лицензию на игнорировать позиции ВАСа, как минимум, кассации сам бог велел, пардон - ВАС уже высказался, значит, похожее дело вряд ли примет к рассмотрению.

В чем польза выраженной позиции ВАС, если он не контролирует исполнение своей же позиции?

То есть, ВАС на постоянной принципиальной основе воздерживается от того, чтобы закреплять навязанное нижестоящим судам единообразие практики - и этим он хоронит свой авторитет, и авторитет его позиций.

Writing what is right is not only not enough for changing reality, it inspires applicants to rely on the position of YOU, giving the impression that in practice the courts will be bound by this position.

Such an approach of the Supreme Arbitration Court nullifies the result of its work, because the courts tend to ignore the law and the positions of higher authorities - all the more so.

It seems that if the SAC, even if randomly and as part of a judge, single-handedly overturned the decisions of the lower courts, in view of the violation of the positions expressed by the SAC of the Russian Federation, they would not be so useless, and for applicants relying on these positions in defending their rights - even worse - misleading.

A “naked” reference to a failed definition is a bad man of course. And “A similar legal position is expressed in the Decision on the refusal to transfer the case to the Presidium.” - More than doubtful.
But this approach was a trend.

However, some lawyers took a different approach, which is less critical. Behind the “refusal definition” was the same “district resolution”, and it stated “This legal position is formulated in the FAS Decision. By the decision of the Supreme Arbitration Court, the case is refused to be transferred to the Presidium.”
The "district resolution", in turn, may indeed contain a certain legal position, and the addition of the "rejected determination" is only a legal dessert. So, in principle, it’s more correct (if there is a desire to refer to the “rejection definition”).

“Concerning the“ rejected ”determinations of the Supreme Arbitration Court of the Russian Federation, I met that they are referred to by the arbitration courts of the districts in their decisions to“ strengthen ”their findings in the resolution of which dispute. "

"The Supreme Court indicated that the defendant’s reference to the determination of the Supreme Arbitration Court of the Russian Federation, which was rendered in the transfer for review by way of supervisory review of judicial acts in a similar dispute, is not accepted, since the said judicial act does not apply to those that form judicial practice."

I will not dispute the conclusion itself, but I will note, to put it mildly, the circular nature of the syllogism by which it was obtained.

The reference to the rejected determination of YOU is not accepted, because the rejected definitions of YOU do not form a practice.

The question is, why do they not form a practice? Because the law does not write about it? But then the cassation rulings of the economic collegium of the Armed Forces (including those listed on the blog :) also "do not form a practice." Does this mean that they can not be referenced?

Apparently, the point is not in the law. And then what? In the customs of the judicial process?

That is, the motivation, in fact, is this: a reference to a rejected definition is not accepted, because we do not accept references to rejected definitions. :)

And there is. Since there is no normative indication that the court should or may take into account the “rejected” practice of the Supreme Arbitration Court of the Russian Federation or the new Armed Forces of the Russian Federation when making a decision, then only the subjective attitude of the judges to such practice matters. This attitude was expressed in the Definitions of the RF Armed Forces indicated by the blog author.

I can, of course, be mistaken, but the procedure for transferring the case to the “second appeal” is not so significantly different from the procedure for transferring the case to the Presidium of the Supreme Arbitration Court of the Russian Federation. In both cases, someone decides to transfer or not, and he is practically normatively unrelated to this issue. It all depends on the subjective opinion of the judge (previously the “troika”) or some external circumstances (as was the case in Lebedev’s recent case on jurisdiction of disputes from a surety agreement).

In principle, subjectivity is peculiar to the Russian process regarding the review of judicial acts. Soviet supervision (and he is a common ancestor and the supervision of the Presidium of the Supreme Arbitration Court of the Russian Federation and the “second cassation”) was also distinguished by great freedom of discretion among persons conducting judicial reviews, for which he was criticized by the ECHR.

But they, like, are not officially published anyway, only privately K +, etc.

It is then necessary to _ forbid_ their publication, that is, to impose a signature stamp. :)

It is noteworthy that all the definitions of the Judicial Collegium for Economic Disputes, given by Pavel on the blog, were adopted by the “troika” under the chairmanship of the same judge - judge S.V.Samuylova. Most likely, a coined phrase such as “the defendant’s reference to the determination of the Supreme Arbitration Court of the Russian Federation, which was refused transfer for review by judicial review of judicial acts in a similar dispute, is not accepted, since the said judicial act does not apply to those that form judicial practice” is expression of the legal position of a particular judge, dressed in the form of a collegial act of justice.

Is the opinion of Judge S.V. Samuilov, reproduced by him in numerous definitions, an expression of the opinion of the Judicial Collegium for Economic Disputes? The answer “yes” suggests itself, but it seems to me somewhat premature. I will wait for the expression of a (similar) legal position by the other presiding “triples”. Then we can talk about the formation of the practice of the Judicial Board.

P.S. Not all judges of the Supreme Court of the Russian Federation are so categorical about references to rejected decisions of the Supreme Arbitration Court of the Russian Federation. So, judge A.G. Pershutov, by the way, comes from the Supreme Arbitration Court of the Russian Federation, in a recent definition dated September 11, 2015 N 305-KG15-10399 very thoroughly, with all seriousness, substantiates the inconsistency of the reference to the rejected definition of the “troika” of the Supreme Arbitration Court of the Russian Federation.

I don’t understand one thing. If a court of any jurisdiction begins to regulate its load with unmotivated refusals, say, in accepting applications / complaints, everyone will agree that this is outrageous. (I note that such practices of getting rid of excess load occur in soy)

If supervision does this, it is supposedly completely justified, because it is an extraordinary instance (it must be remembered that extraordinary starts with a cassation)

And it’s completely incomprehensible why the judges “didn’t raise a hand”. After all, they did not have the task to say something about the mistakes of subordinates - we do not require the cassation to check the factual side: it simply does not look at these issues, and that’s it. The triples had a task to say about the presence / absence of grounds for transmission. This has nothing to do with errors simply because the higher authority could easily overpower all decisions of subordinates by simply raising their correct position to a higher level of authority.

The practice with the refused was purely for the higher authority to regulate its own load. An absolutely unthinkable and unacceptable anti-legal practice, which can be justified only when the habit has already developed to justify.

“I have already written several times that in the very idea of ​​selecting cases for consideration by the highest court and eliminating cases that are not of great importance for the development of law and unification of judicial practice, there is nothing anti-legal, terrible or unbelievable. This is how the higher courts of many countries work: Germany, England, USA, etc. "

Artem, yes. But there is a “nuance” - the lower courts in the esteemed countries you have listed, in fact, respect the position of the highest court.

In the Russian Federation the situation is opposite - the lower ones do not follow the positions of extraordinary instances, because the latter themselves do NOTHING for this.

That is, “nothing” is literal - the Supreme Court of the Russian Federation does not even cancel acts that were pronounced in direct and direct contradiction to the positions expressed earlier by it, ONLY for that reason. that he has previously spoken out (see, please, my detailed commentary on the post of R. Bevzenko in this topic).

It seemed to me that I didn’t write that the MODEL of selecting cases important for the development of law and judicial practice is anti-legal, terrible and unbelievable.

It seemed to me that I wrote that the lack of MOTIVATION in definitions designed to solve the problem of the presence / absence of reasons (in particular (!) When the motivation is devoted to anything, but not to issues of non-presence / absence of reasons, because someone allegedly has “hands” do not rise "to confine ourselves to these issues when it is possible to enter the consideration of the case on the merits), is anti-legal, terrible and unbelievable.

If the model is that it is impossible to write a motivation with it strictly about the grounds for transferring a case / refusal to transfer a case, then yes - it is terrible, anti-legal and incredible.

And the ECHR recognized just such a model as illegal when it discovered Soviet supervision in our legal system. In fact, nothing has changed - the name has been changed, and the practice of making the same voluntaristic decisions as before continues.

In fact, the selective model does not imply unmotivated decisions. I do not know where this thesis could come from.

The difference between the French approach and the German one lies precisely in the fact that the Germans always first check the grounds for referring the case to the audit court (in addition to the fact that the same grounds allow any case to be reviewed by a higher authority, even when the subject of the dispute is insignificant and the appeal, for example, on a general rule closed). And they really do this: they check the existence of grounds. And they don’t write in motivation about how the appeal or the first instance decided everything right or wrong. Moreover, this appeal itself is primarily concerned with the possibility of referring a case to an audit court. And if she decides what should be transferred, the audit court is bound by this decision. And if it decides that it is not transferable, then you can submit a private complaint to the audit court itself. And after that, you can still connect the constitutional court if the mess with motivation
(This, of course, is the main outline, there are more special situations)

A well-known article by authoritative authors lacks everything except a substantive discussion of the grounds on which cases are transferred or not transferred.

We wrote in detail about the criteria by which to select cases. Moreover, we wrote that determinations of refusal or transfer should be motivated with a direct indication of the presence or absence of importance of the issue of law that raises the case, the inconsistency of judicial practice on this issue, and in no case can be justified by the justification of the decision of a lower court. But if I choose from two evils (the accepted practice of motivating rejected determinations with fixing the correctness of the position of a lower court or dry motivation indicating the absence of grounds for transfer under Art. 304 APC), I choose the lesser. Of course, it’s not right to completely not motivate your choice of business, but it’s better than fictitious motivation, which has spread in practice. Or you need to rebuild the entire system, move away from the selective model and implement the French model of in-line revision.

By the way, it would be interesting to look at the decisions of a German lower court on permission to review a case in the Supreme Court or the determination of the Supreme Court itself on a complaint about a refusal of a lower court to allow the case to be reviewed. Mikhail, if it’s not difficult, take a look and write how thoroughly they motivate such definitions and what words they write there. Just wondering.

I found little specificity on page 7, because the complainant (the “defendant”) did not write down the basis of his complaint.
My comparative legal summary: what our triples did is simply horror, anti-legal and anti-constitutional. Well, now the same thing.

BGHZ 151, 42 (https://dejure.org/dienste/vernetzung/rechtsprechung?Text=BGHZ%20151,%2042)

ZPO (2002) § 574 Abs. 2
a) Possibility of proceedings on a private complaint in accordance with para. 2 § 574 of the CCS cannot be justified by the fact that the question of the right of appeal under para. 1 § 574 UGS is fundamental.
b) The production of a private complaint aimed at ensuring a uniform judicial practice (no. 2 para. 2 § 574 of the Civil Procedure Code) is possible in the event of a discrepancy, however, in this case, it assumes that the applicant will disclose the rejection argument. Rejection takes place only when the contested decision answers the same question of law as the decision of a higher court, another court of the same level or another composition of the same court (continued practice in BGHZ 89, 149, 151).
c) If a private complaint aimed at ensuring a uniform judicial practice (no. 2 para. 2 § 574 of the Civil Procedure Code) is based on the fact that the contested decision contains procedural or substantive errors, then the conditions for initiating proceedings are present if the legal error leads to that not very acceptable differences in practice arise or continue to exist.

The Fifth Senate for Civil Cases of the Federal Supreme Court on May 29, 2002, composed of presiding judge Dr. Wenzel and judges Tropf, Prof. Dr. Krueger, Dr. Guyer and Brauner

dismissal of the private complaint on the determination of the sixth chamber on civil cases of the Zemsky court of the city of Chemnitz dated January 17, 2002 due to the impossibility of proceedings on it, having charged the defendant.

By a decision of the Freiberg precinct court of August 10, 2001, the defendant was awarded the right to enter and drive in his own area and consent to make an entry about them in the land register. He filed an appeal against this decision sent to him on August 17, 2001 by means of a written statement received on September 11, 2001 in the Zemsky Court of Dresden, signed by his representative by proxy. By order of September 18, 2002, faxed the same day, the representative of the respondent by proxy received an order from the judge that from the point of view of the case the competent court was not the Zemsky Court of Dresden, but the Zemsky Court of Chemnitz. By means of a written statement received on September 19, 2001 by the Zemsky court of Chemnitz, the representative of the defendant by proxy again filed an appeal and requested the restoration of the missed procedural time limit.
The Zemsky court of the city of Chemnitz, by a decision of January 17, 2002, refused to restore the procedural term and dismissed the appeal because it was impossible to proceed with it. Against this, a private complaint of the defendant is directed, to which he again seeks to restore the procedural term and asks to cancel the ruling rejecting the appeal.

1. The right to appeal is subject to no. 1 paragraph 1 § 574 in connection with the sentence fourth paragraph. 1 § 522 para. 2 § 238 UGS. In that part, in which the private complaint is directed against that part of the ruling, which the appeal is rejected because of the impossibility of proceeding with it, the private complaint has the right to appeal according to the fourth sentence of para. 1 § 522 UGS. In the part in which it simultaneously contests the refusal to satisfy the application for the restoration of the procedural term, the right to appeal arises from para. 2 § 238 UGS, according to which the sentence the fourth paragraph. 1 § 522 UGS is also applicable (cf. Zöller / Gummer, ZPO, 23. Aufl., § 522 Rdn. 20, Zöller / Greger, § 238 Rdn. 7).

2. However, the production of a private complaint is not possible, since the conditions in para. 2 § 574 UGS not fulfilled.

a) Contrary to the defendant's opinion, the possibility of proceedings cannot be justified by the fact that the question of the right of appeal is fundamental. The question of the right of appeal must be examined in any case by the court examining the complaint. Then, in the case of a positive answer, as follows according to para. 2 § 574 of the CCS, the question is whether the production of a private complaint is possible from the point of view of fundamental significance (no. 1 para. 2) or in view of the development of law or ensuring uniform practice (no. 2 para. 2). If there is already no right to file a complaint, the possibility of proceeding is no longer checked in accordance with para. 2 § 574 of the Civil Procedure Code, and even if the verification of the right of appeal would be connected with a question, for example, of fundamental significance. This shows that the verification of the right of appeal through a private complaint cannot affect issues that could justify the possibility of proceedings.

b) Following the defendant, it is also impossible to recognize that the case is of fundamental importance within the meaning of no. 1 paragraph 2 § 574 of the UGS because it was not clear at the highest level under what conditions an incompetent court should redirect a written statement incorrectly sent due to an incorrect court certificate to another court as part of its duty to take care. Moreover, since the decision of the Federal Constitutional Court (BVerfGE 93, 99 = NJW 1995, 3173, 3175), it has been recognized in the practice of the Federal Supreme Court that an incompetent court should redirect routine written applications received for appeal, which must be submitted to the deadlines set by the competent court to examine the complaint (BGH, dec. of December 1, 1997, II ZR 85/97, NJW 1998, 908, as of February 11, 1998, VIII ZB 50/97, NJW 1998, 2291, 2292, as of July 27, 2000, III ZB 28/00, NJW-RR 2000, 1730, 1731). Whether in the present case the Dresden Zemsky Court took procedural actions in accordance with these principles, or whether it could redirect the appeal appeal at a time sufficient to meet the deadlines for the appeal, is a matter of a specific case and does not require an assessment of the highest court.

c) Also, to ensure a uniform judicial practice (no. 2 para. 2 § 574 of the Civil Code), no decision of the Federal Supreme Court is required, contrary to the defendant's opinion.

аа) В той части, в какой ответчик рассматривает данное условие возбуждения производства как выполненное ввиду предположительно отклоняющегося решения Высшего суд

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