Civil Procedure: Jurisdiction and Legal Actions
Study these procedures to obtain a positive legal outcome.
Jurisdiction: Voluntary and Contentious
Next to the action, we have jurisdiction. Law enforcement is carried out only by the judiciary. The rite is the determination of the action, applicable to the case. Jurisdiction can be:
- Voluntary: Refers to cases in which the judge is involved, not to resolve a conflict, but only to authorize it. Examples include marriage and adoption.
- Contentious: Requires the intervention of the judiciary to resolve a conflict. There is a confrontation. Examples include the appointment of a guardian or curator, and his will to the Emperor.
Procedure for Legislative Action
This way of proceeding begins at the height of the 12 Tables and lasts until the end of the Republic. It is characterized by the rule of form or legal formalism, where form is determinant, while will has little relief. An error in the formula may result in the loss of the lawsuit.
Phases of the Process
Public Hearing Before the Praetor: Phase “In Iure”
The parties are duly summoned before the Praetor and must be present at his court on the designated day and hour. If one party does not appear, the trial is automatically decided in favor of the present party. Before the Praetor, the parties present their claims. Once the plaintiff finishes his speech, the defendant is offered the opportunity to answer. The applicant seeks the grant of an action. The action may be personal (because of a credit) or a real action (held by the debtor because something has not been returned). If it is a personal action, the defendant may defend the action and continue the litigation or comply with the claimant’s case, ending the litigation. If it is a real action, the defendant may defend the action, comply with the claim of the actor, or leave everything to his fate. The first phase ends with the “litis contestatio,” setting the terms of the dispute before witnesses.
Private Phase Before the Judge: Phase “Iudicem”
The parties go to a public or private judge and summarize what happened in the first phase. The judge will implement the types of evidence to try to find the truth. The evidence includes oral evidence, documentary evidence, expert evidence, sworn statements, and eye tests. The judge issues the sentence, ending the litigation. If the offender accepts the sentence, the litigation ends. If not, there is a period of 30 days to comply with the debt. If the debt is not paid, the debtor may be sold as a slave. This practice disappears in 326 BC and is replaced by liability.
Declarative Actions
- By Sacrament:
- First Stage: The parties present before the Praetor, requesting the granting of a real or personal action. The plaintiff is directed to the defendant, and a sworn bet is made. The defendant asks the plaintiff to swear the same thing. This is the “litis contestatio.”
- Second Stage: The parties are directed by a judge, who determines who has spoken the truth and who has perjured. The penalty is a sacrament.
- At the Request of a Judge or Arbitrator: For very specific cases, a sacramental bet is not used. A judge is used when it is claimed that something should be given under a solemn verbal contract. A referee is used when the division of a common thing is sought. In the “in iure” phase, the referee or judge will condemn or acquit the accused.
- By Intimidation or Requirement: We enter the field of credit, which involves a cash economy and considerable money circulation, either as payment or as an instrument of change.
Executive Action
- Seizing the Debtor (Ritualized): Empowers the applicant to take over the individual.
- Making a Pledge: This is novel because it involves taking action without a formal process. It becomes a form of private justice that is not verified before the magistrate.