Act of Reconciliation and Preliminary Proceedings in Legal Cases
Item 5. The Act of Reconciliation
is a method of solving conflictosentre the autocompositivo appear in person, ie, no third party which is superordinate to an agreement that over the parties) and imposed by the solution. The conflict is resolved by an agreement reached by the parties. In conciliation the parties reach agreements, reconcile and therefore there is a judicial act itself. The legislature intends to avoid encouraging the reconciliation process. The parties may well reach an agreement. The truth is that the act was an act of conciliation obigatorio until 1984. Before filing the lawsuit, were required had to be attempted conciliation. In that year the LEC reform and believes that the act was an act of reconciliation rather than prolong the conflict resolution. Conciliation is a voluntary act. In addition to an act outside the process. The reconciliation is seen as an act within the process. They power the parties reach an agreement to end the process. One purpose of the preliminary hearing is that the parties reach an agreement and so end the process. Section 460 et seq. Act 1881. It regulates the settlement. These items are now in force. Today, it is not necessary, mandatory and compulsory conciliation as a condition of admissibility of the claim, but is established at the disposal of the acts of balance and this is prohibited in certain processes. Conciliation is not admissible in certain processes where the state has an interest, the regional governments, public authorities .. Nor are involved in processes where minors or disabled for the free disposal of assets. Again, judgments of responsibility of judges and judgments mahistrados or unsuitable material transaction or commitment. All these exceptions are in art. 460. In all processes where there is no availability or private interests, does not allow the act of conciliation. The act on the idea that there must be models that can bring right parties. shall be liable for costs. The parties are imposed obligation to appear to act, and if they appear to allege just cause. This act is to be achieved is an agreement between the parties, so the judge qeue it aims to reconcile the views, ie, the parties to reach an agreement. The judge is a mediator between the parties. The work is not arbitrary, because this would impose a solution on the parties. It will not impose any solution to the case and will only be acoupa that the parties reach an agreement. The act of conciliation, it aims to reach an agreement, but does not impose an agreement is reached (may not be achieved). If the conciliation is terminated without agreement shall be recorded and enables the parties to exercise their rights against the relevant body. Another solution is that the parties reach an agreement. This agreement, as it has been conducted before a judge who has done work jurisdictional enforceable. Meanings that can be executed by the procedures provided for the enforcement of judgments. The difference judgments, since the agreement is not imposed or resolved by the judge, the agreement in no case has the effect of res judicata (not judged at all). The legislature states that the agreement may be terminated by the same causes that invalidate contracts (this would never be possible with the judgments).
Preliminary proceedings are governed by arts. 256 et seq.the LEC. These notes provided are steps that allow preparation of the future process (sometimes necessary for this). Are actions that are requested and which aim to determine the personality of the defendant, some aspect of its ability, representation or sometimes go out to have an object or document is required to initiate litigation. There are many types and are detailed in the art. 256 and are roughly as follows: ‘Sometimes requesting the display of a movable thing / object to identify the object in dispute, on which lie to our claim and if the interest of the defense request a deposit, ask for injunction on the same . -You can also request the display of a document showing any data on the personality of the part to its legitimacy, capacity, if it is minor and representation. -In other cases the request is directed to obtain a statement under oath or affirmation to tell the truth. It is an interrogation aimed at the part on a promise to provide the certainty of an act concerning the capacity, performance or standing of a party. -You can also call as Dilego intervention of those affected are a group of CNAD these are not determined or are not readily determinable. -Also as diligence, the heir or legatee may prompt the display of the will. -You can also call the person who is entitled to disclosure of documents and accounts of a society. For example, one partner may encourage, or here to be harmed by a contract of insurance may encourage the display of an insurance contract to see if l defendant is covered by the policy. -Request history of a health center. -When an action is intended for industrial property rights or intellectual, may prompt an interrogation to determine the origin and distribution networks of goods. These are all preliminary proceedings and directed to permit the filing of the complaint or initiation of the process. Procedure of the legislature to decide when the proceedings: ‘The jurisdiction of the prosecution’s request for the court of first instance, the commercial judge, etc, the domicile of the person to comply with these procedures. The general rule is that proceedings must be urged before the trial judge. There are exceptions in certain cases when the aim is to identify one group of victims, in cases where proceedings have been requested because they have violated intellectual property rights or industrial property. In these cases, competition for the national court before which it must submit the request. It was non-renewable standards. It provides that the judge should examine their own profession and objective territorial jurisdiction, so the parties can not bring demurrer. The jurisdiction to hear preliminary proceedings, therefore corresponds to a magistrate or judge of the commercial domicile must conduct the proceedings. As exemption will be the organzación compettente to meet demand later. Article 257 The parties shall be able to bid on the basis that in the process to be mandatory or not (if for the subsequent demand interrponer precepttivo legal counsel and attorney for the proceedings will be as well). The process begins by writing. The reason is because fundammentar application or proceedings. It is necessary that the party seeking the adoption of a measure provides a bond to respond in damages, which could cause aa person before requesting the proceedings (damages for asking a legitimate interest). If the court agrees to take place the same act diligently and where it meets the practice of care, states must pay the deposit to the party requesting the diligence of quantifying the damage to the that will suffer the other party.If 3 days is not recorded, the clerk proceeds to file actions. If the subject does not pay, does not comply with the practice of diligence. The diligence has been able to agree, the judge must weigh the allegations of the party, determines whether or not, but the other party has not taken sides, and therefore, by car it is agreed the practice of diligence, should notify stakeholders and what is said in the act is that within 10 days must be people in the courthouse to conduct the proceedings agreed. The party has five days since he is reported to inquiries and have those 5 days after the citation to oppose the proceedings. The formula opposition who should conduct the proceedings will be scheduled for processing by oral trial procedures. After the hearing, the parties presented, and the judge will decide whether to esteem or dismissing the opposition. It is necessary to transfer to the other arts, and be given the opportunity to make the arguments he deems appropriate. Should the judge reject the opposition, they will bring the costs incurred towards the incident of the opposition that has been imposed. It is not subject to appeal. If the judge deems it appropriate the opposition, agreed by car and this car is suscepetible resource on appeal. 261 -> has a peculiar and specific regime’s refusal to conduct the procedure. They are a series of coercive measures, which would be provided for the measure requested, in case the person requerrida, neither opposition nor attend make the measurement. -At first when you have tried to obtain data on capacity, legitimacy and representation, the legislator said that if the future refuses to provide information, the court may have the affirmative the questions that the applicant intends to make, and by certain facts to the qeue refer in a subsequent trial. The court modulates, and thus establishes a fiction that are answered in the affirmative and that the facts are true. -In the case that what has been called is the display of titles and documents, when the party refuses, if the court finds that there are indications of where these may agree to the entry and registration and shall hold such documents and put in a position of the applicant. If requested movable display, presumably where you can find, in this case, the court may order the entry and registration Luagos and proceed to fill the order for submission to the applicant. It can encourage the deposit or other guarantee of preservation. -When call proceedings to establish infringements of industrial property right or intellectual, can agree on measures of entry and search to find documents and data needed to know that people have infringed, all without prejudice to any criminal liability have incurred. -When it comes to accounting documents displayed on a society, in case of refusal to who should apply, shall be deemed true data and accounts submitted by the applicant.