Grounds for a judgment that cannot always be appealed against in the Court of Cassation

With the current wording of art. 360, paragraph 1, no. 5), Civil Procedure Rules (CPR) as a starting point, Dario Augello and Gabriella De Mattia summarised the cases for Eutekne in which the judgement of second instance pronounced by the Regional Tax Commission can be appealed against in the Court of Cassation from the point of view of its completeness (without, therefore, considering the merits on law infringement).

On the one hand, the insufficient reasoning can only be appealed against for violation of constitutionally relevant procedural law, i.e. when the alleged defect relates to the very existence of the motivation pursuant to Article 111 of the Constitution.

On the other hand, under the new Article 360, paragraph 1, no. 5), CPR, the judgement may be appealed against in the Supreme Court for “failure to examine a decisive fact for the judgement which was the subject of discussion between the parties”.

However, in paragraph 5), the limit of the so-called two concordant decisions – i.e. conviction at first instance confirmed on appeal – is applied, so that the defect cannot be raised in the presence of an appeal ruling confirming the first instance ruling.

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