Binding of the instructions of the higher court on the persons involved in the case when the case is sent for a new hearing

A higher court, when sending a case for a new hearing, has the right to give binding instructions to the court which will hear the case again. The article deals with the issue of the binding nature of such instructions for the persons involved in the case. The procedural law, on the one hand, indicates that the persons involved in the case must comply with the instructions of the higher court when the case is remanded for a new hearing, but on the other hand, the binding nature of such instructions is stated only in relation to the court that is re-examining the case. The instructions given by the higher court should not be perceived autonomously, but in the context of the legal interest of the persons involved in the case. The authors make the assumption that one party (whose complaint has been upheld) will be interested in following such instructions, while the other party will seek to deviate from them. The instructions of a higher court can be realised in their effect no other way than in the activity of the court that is re-examining the case. The authors note that the resolution of the question posed in the article should be preceded by a determination of the nature of the instructions given. Reference to the materials of judicial practice shows that the instructions given are not homogeneous. The instructions of a higher court may be of a rather abstract nature, while in other cases they may be quite specific. It is clear that the enforceability of a superior court instruction depends on the specificity of the instructions contained therein. In certain cases, directions are addressed exclusively to the court hearing the case and cannot be executed by persons participating in the case. In other cases, instructions are also addressed to the persons involved in the case, being relayed through the court. Declaratory, implied, statutory and specific directions can also be distinguished. The requirements (appeals) of the court addressed to the persons involved in the case may have a dual character. Some of them are unconditionally binding, while the fulfilment of other requirements depends on the will of the persons involved in the case. It is also necessary to distinguish between requirements (appeals) of the court, the execution of which is possible by the will of one of the parties and requirements, the execution of which requires the agreed will of the parties. The authors have established that, as a rule, directions are directly related to the argumentation of the complaint. Consequently, one party will always have an interest in following such directions, not because of coercion or because they are binding, but because of a personal interest. Accordingly, the other party "against" whom the directions of the higher court are given will have an interest in departing from them. Of course, the instructions may also be neutral and non-prejudicial to the parties. The authors declare no conflicts of interests.

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