Cassation action and contesting the facts

Principle of free assessment of evidence

The court shall measure the evidence collected in the case in accordance with the rule of free assessment of evidence. This rule is expressed in Article 233. § 1 k.p.c., stating that the court assesses the reliability and power of evidence according to its own conviction, on the basis of a comprehensive consideration of the collected material. Usually, by questioning the facts established by the court of first instance, in the appeal, we accuse the violation of this provision. This is simply a plea of infringement.

Restrictions on the grounds of the appeal

The cassation action may be based on the grounds for breach of substantive law by misinterpretation or incorrect application, or on infringement of the rules of procedure, if this failure could have a crucial impact on the result of the case. The basis for the appeal pursuant to Article 398(3) of the Code shall be: can't be However, the plea of infringement of the provisions of the procedure concerning the uncovering of facts or the assessment of evidence.

Function of the ultimate Court

These principles entail the adoption by the legislator of the presumption that the ultimate Court, erstwhile examining a cassation action, acts as a court of law whose task is to is not an assessment of the reliability and power of evidence or an assessment of the facts. The ultimate Court shall supervise the activities of the average courts in the field of judgement (Article 183(1) of the Constitution). That court shall, in examining the appeal within the limits of its grounds, be in accordance with Article 398 13(2) of the Code, the facts on which the judgement under appeal is based. (judgment of 24 February 2006, II CSK 136/05).

Meaning of facts within the meaning of the Cassation Complaint Law

The facts within the meaning of Article 398(3) kpc must be understood to mean those findings of the court which concern only the account of the course of events or the state of things to be assessed, the mention to evidence on which the court relied or refused to give faith.

Rules whose infringement with respect to the establishment of facts and the assessment of evidence cannot be the subject of cassation charges

The ultimate Court in its judgement of 10 June 2013 (Act II PK 300/12) stated that Article 398(3) of the Code did not indicate expressis verbis specific provisionsthe infringement of which, in connection with the establishment of facts and the carrying out of the assessment of evidence, cannot be the subject of charges which fulfil the second cassation ground of infringement.

However, there is no uncertainty that that provision covers Article 233 of the EC Treaty due to the fact that it is precisely the provision which defines criteria for assessing the reliability and power of evidence. The alleged infringement of Article 233(1) of the Code, motivated by a defective assessment of the evidence collected, cannot so constitute a legitimate basis for the cassation action (such as the ultimate Court judgement of 8 March 2010, I PK 260/09).

Other provisions of this kind include, inter alia, Article 228 kpc, which states that facts commonly known, and facts known to the court officially do not require evidence, and 231 kpc establishing a presumption of fact which confers on the court the right to consider as established facts applicable to the result of the case, if specified a conclusion can be derived from another facts established

Assessment of evidence and cassation complaint

The ultimate Court in its order of 12 May 2015 (Event No IV CSK 650/14), for the form of infringement of Article 233. § 1 k.p.c. recognized the contention of the organization with the assessment of the evidence collected by the courts of first and second instance
That court likewise qualified the party’s plea concerning an assessment of the correctness of the evidence procedure before the Court of First Instance by the Court of First Instance.
The above allegations were so inadmissible on the basis of the appeal.

Similarly, the complainant’s plea of non-recognition of the pleas of appeal by the territory Court was inadmissible For your own the findings of the territory Court in a situation where the pleas of appeal active a contradiction between the findings of the First Instance with the evidence collected.

In that case, the ultimate Court stated as a basis for the inadmissibility of the appeal against the alleged infringement of Article 233(1) of the Code: judgement of the ultimate Court of 16 November 2012, III CSK 73/12, not publ. and of 19 April 2011, I U K 368/10, order of the ultimate Court of 23 March 2012, II PK 278/11,).

Different assessment of evidence by the appeal court and cassation complaint

Art. 382 k.p.c. states that the second instance court shall regulation on the basis of the material collected in the proceedings at first instance and in appeal proceedings.
Court of Appeal does not affect Thus, Article 382 of the Code of Conduct by making its own factual findings and making conclusions on legal competence on the basis of evidence collected in the first instance.

Second instance court is required to execute self-assessment of the results of the inquiry, whether or not the findings are made after the completion of fresh evidence, the reopening of existing evidence or the divided of the findings made by the first instance court (cf. ultimate Court judgement of 8 February 2000, II UKN 385/99, OSNAPiUS 2001/15/493).

Questioning the legal qualification adopted by the Court of Appeal in the framework of the plea of infringement of Article 233(1) of the Code.

In its judgement of 21 March 2013 (Event III CSK 216/12) The ultimate Court took the view that the challenge of a second instance of legal competence accepted by the court in the context of a plea of infringement of Article 233(1) of the General Court cannot be the subject of consideration and assessment of the ultimate Court. The normative content of this provision refers straight to the performance of the Court of First Instance assessment of evidence, and the grounds for the cassation complaint cannot be based on allegations concerning the determination of facts and the assessment of evidence (Article 398(3) of the Code). The ultimate Court is bound by the facts on which the contested ruling is based.

Omission of the results of the evidence by the court of first instance as a admissible basis for the appeal

According to the established ultimate Court jurisprudence line, the violation
Article 382 k.p.c. (the rule of the second instance's ruling on the basis of the material collected in the proceedings at first instance and in the appeal procedure) may form the basis of a cassation action only in accidents
omissions by the Court of First Instance of the second instance of the part ‘collected on material’
and to issue a judgement solely on the basis of material collected before the court
first instance or on the basis of own material excluding results
evidence by the first instance court
(cf. ultimate Court judgments of 22 February 2007, III CSK 337/06, Lex No. 274217
and of 9 June 2005, III CK 674/04, Lex No 180851).

The omission of evidence is not tantamount to their assessment and may be the subject of a plea of cassation in the light of Article 398 3 §3 kpc (judgment of 23 February 2006, I CSK 29/05).

Unreasonably, the Court of Appeal’s failure to complete the evidence as the basis for the appeal

In its judgement of 5 September 2002, the ultimate Court stated that, where the grounds for appeal are based on a plea of infringement of the general procedural standard of Article 382 kpc, it can only be justified if the applicant demonstrates that the second instance He did not unduly supplement evidence or omission of part of the collected material, if specified deficiencies may have occurred impact For the result of the case.

Rejection of the appeal

Article 398 6 §2 kpc provides that the second instance court rejects a non-compliance with the requirements of Article 398 4 §1 kpc at a secret sitting. This consequence is so covered non-recast and their justification.

In the present case-law of the ultimate Court concerning cassation actions based on allegations concerning the uncovering of facts or the assessment of evidence, the position has been established that a cassation action containing only allegations concerning the facts established and the assessment of evidence (Articles 228, 231 and 233 of the Court of Justice) or seeking to competition a judgement under appeal is subject to review. rejection as inadmissible pursuant to Article 398 6 §2 k.p.c. (yes: orders of the ultimate Court: 30 August 2006, I CSK 189/06; 6 December 2005, I CSK 66/05; 21 July 2006, II CSK 138/06; 26 September 2006, II CSK 283/06; 30 October 2006, II CSK 378/06; 30 May 2006, I PK 300/05; 23 October 2006, I UK 194/06).

This case-law is based on the presumption that a cassation action containing only the aforementioned allegations is based on an unacceptable statutory basis. The complaint cannot be based on allegations concerning the uncovering of facts or the assessment of evidence (yes: order of the ultimate Court of 23 September 2005, III CSK 13/05, OSNC 2006 No 4, item 76).

This view was besides accepted by the doctrine, which indicates that the deficiency of indication of the cassation basis constitutes structural defect of the cassation complaint within the meaning of Article 398(6)(2) in conjunction with Article 3984(1) k.p.c. The Court of First Instance rejects an action which does not meet the requirements laid down in Article 398 4 § 1 k.p.c. and, in accordance with Article 398 4 § 1 § 2 § 2 §, the cassation action must contain ,,,a mention to the cassation grounds and their justification’.

If, therefore, the cassation action is based on allegations which, pursuant to Article 398(3) of the Code, cannot form the basis for the cassation action, it can be assumed that does not contain 1 of the mandatory structural elements. In this regard, the plea concerning the assessment of evidence or factual findings cannot be considered as a cassation ground, since Article 398 3(3) of the Code excludes it from the catalogue of grounds of cassation (order of the ultimate Court of 16 February 2007 of the Chamber of Labour, Social Insurance and Public Affairs, Act No II UZ 62/06).