УСЛОВИЯ И МОМЕНТ НА ВЪЗНИКВАНЕ ПРАВОТО НА КАСАЦИОННО ОБЖАЛВАНЕ
CONDITIONS AND THE RIGHT OF CASSATION APPEAL’S MOMENT OF INCURRENCE

Summary/Abstract: The right of the party concerned of a cassation appeal shall incur from the presence of appellate judgment and not to be a result of a specific inspection performed by the Supreme Court of Cassation itself, where examined shall be the presence of conditions foreseen in art. 280, par. 1 of Civil-Procedure Code. In the theory maintained is the reverse thesis that „the right of the party concerned of a cassation appeal does not incur of the presence of appellate judgment (ruled, prepared and announced with the contents of form according to statutory provisions – art. 235, 236 of Civil-Procedure Code). The subjective procedural right of cassation appeal is result of a specific inspection performed by the Supreme Court of Appeal itself, regarding the presence of special conditions, set in art. 280, par. 1 of Civil-Procedure Code. The right of cassation appeal is not conditioned on the inspection performed under art. 288 of Civil-Procedure Code. It incurs from the positive result of its conduction and has as a source (grounds, judicial fact) the ruling of Supreme Court of Cassation in this proceeding. Prior to the ruling of Supreme Court of Cassation regarding the criteria for access to cassation appeal the right of cassation appeal is still not existing – it has not incurred or its bearers. This statement is disputable because the right of cassation appeal incurs with the ruling of appellate judgment which may be practiced after incurrence of the term of cassation appeal. The cassation petition is submitted when the judgment is void, impermissible or wrongful due to violation of the material law, performed violation of the court procedural rules or groundless – argument under art. 281 of Civil-Procedure Code as the appeal is submitted through the court having ruled the appellate judgment within one month of its handover to the parties – argument under art. 283, sentence 1 of Civil-Procedure Code. Therefore, the subjective procedural role of cassation appeal is the presented and guaranteed by the law possibility and individual to oblige the Supreme Court of Cassation to rule on the first stage of cassation proceeding – proceeding on allowing cassation appeal, estimating the statutory criteria under art. 280 of Civil-Procedure Code as the result of this activity will condition the existence of the obligation of the Supreme Court of Cassation as a third instance on inspection of an appellate deed in essence, or the non-existence of this obligation.

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