Izvorni znanstveni članak
What Is an Important Legal Issue in Second Appeal?
Marko Bratković
orcid.org/0000-0003-0893-6682
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
In order for the Supreme Court to be able to focus on cases relevant to the uniform application of law and the development of case law, the importance of the legal issue at hand is a suitable criterion for admissibility of second appeal. Admissibility of second appeal has no implications on the ruling on the merits whatsoever. Second appeal should be granted in cases where there is inconsistency in case law, a need for the development of law, or a threat to legal certainty. At the same time, the Supreme Court should not make haste to align case law as soon as discrepancies occur, as that might impede its organic development.
For the purpose of the development of law, second appeal should be granted when it concerns contentious points on which the Supreme Court has not yet ruled or in order to harmonize established case law with social circumstances of the day, in particular with the standards of human rights protection established in the case law of the Constitutional Court and the European Court of Human Rights. In the interest of legal certainty second appeal should also be granted in cases concerning a serious threat to legal certainty, especially when the contested decision, or the proceedings that led to it, violates fundamental human rights guaranteed by the Constitution and the European Convention, but also in some other cases when a ruling of the Supreme Court would be in the general public interest.
An important issue, which should be the subject of a ruling of the Supreme Court, may only be a legal issue relevant to the outcome of a specific case. Even though the distinction between points of fact and points of law should not be insisted upon, it is at the same time difficult to conceive that a fact established in a case might be important for securing a uniform application of the law or for its development. Second appeal should be granted under the same criteria both against judgments and against orders, and not only in contentious, but also in non-contentious, enforcement and insolvency proceedings. Important issues may arise in all those types of proceedings.
As the criteria of the ratione valoris and the ratione materiae are not suitable for proper filtering of cases, they should be abandoned entirely in order for the Supreme Court to perform a public function. However, no model of second appeal can yield results without trust in the justice system, especially the Supreme Court. In fact, the whole system of second appeal by permission relies on the premise that the tasks of a judge (of the Supreme Court) are carried out by persons who are worthy of the position in terms of both expertise and ethical standards.
Ključne riječi
second appeal; second appeal by permission; Supreme Court; important legal issue
Hrčak ID:
216257
URI
Datum izdavanja:
31.12.2018.
Posjeta: 7.542 *