On September 8, 2021, the Supreme Court, as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation, in case No. 305/402/16-ts, annulled the decision of the appellate court, which did not take into account the requirements of Part 1 of Art. 374 of the Code of Civil Procedure of Ukraine. The Society appealed to the court with a claim against other persons to invalidate the resolutions of the Society's presidium; power of attorney; sales contract, as well as claims for illegal possession of a non-residential building.
The defendant filed a counterclaim in which she requested to recognize her ownership of the non-residential building and to remove (cancel) the lien from this building.
By the decision of the district court, the initial claim was rejected, the counterclaim was satisfied, and by the decision of the appellate court, the opening of appellate proceedings based on the plaintiff's appeal was refused.
The plaintiff appealed to the court with an application for a review of the district court's decision based on newly discovered circumstances, which was refused due to missing the deadline for its submission.
The appellate court overturned the decision of the district court, and the case was sent to the court of first instance for continued consideration in the part of resolving the issue of opening proceedings under the newly discovered circumstances on the grounds that the court of first instance violated the requirements of the law, since, having opened the proceedings and considering the merits of the application for review of the court a decision based on newly discovered circumstances in accordance with Art. 429 of the Civil Code of Ukraine, refused to grant it on the grounds of missing the deadline for its submission to the court, although the judge should have clarified the issue of compliance with the deadline for applying to the court with this application during the verification of the application for its compliance with the requirements of Art. 426 of the Civil Code of Ukraine and when deciding the issue of opening proceedings under newly discovered circumstances, where having established that such an application was submitted after the deadline for its submission and in the absence of a petition for its renewal, the court had to apply the requirements of Art. 185 of the Civil Code of Ukraine, i.e. to leave this application without action, indicating its shortcomings, the method and deadline for their elimination, and to give the person who submitted it an opportunity to eliminate such shortcomings or to refute them.
In the cassation appeal, the defendant stated that the appellate court had exceeded its powers, annulled the decision of the court of first instance to open the proceedings on the application for review, although the plaintiff did not ask for it, and such a decision cannot be appealed at all (except for violation of jurisdiction).
The Supreme Court indicated that in accordance with Clause 6 Part 1 of Art. 374 of the Civil Code of Ukraine, the appellate court, based on the results of the review of the appeal, has the right to cancel the decision preventing further proceedings in the case, and refer the case to the court of first instance for further consideration.
In the decision of the Supreme Court as part of the Joint Chamber of the Civil Court of Cassation dated May 18, 2020, in case No. 643/5556/14-ts, a legal conclusion was made that: "The Court of Appeal is deprived of the procedural possibility to cancel the decision, which does not prevent further proceeding in the case and refer the case to the court of first instance for further consideration. In each case, the appellate court must check whether the decision of the court of first instance prevents further proceedings in the case."
At the same time, the decision rejecting the application for review of the decision of the district court based on newly discovered circumstances is, in its essence, a court decision that ends the proceedings, and not a procedural decision that prevents further proceedings in the case.
According to the Supreme Court's conclusion, the appellate court did not take into account the requirements of Part 1 of Art. 374 of the Code of Criminal Procedure of Ukraine and reached an erroneous conclusion about the annulment of the district court's decision and sending the case to the court of first instance for continued consideration in the part of resolving the issue of opening proceedings under the newly discovered circumstances.