Civil Procedure: Key Concepts and Principles
Autotutela
Autotutela is the first form of composition for conflicts of interest, arising from the lack of an organized state with sufficient power to deter individuals from seeking the solution to their disputes through the law of the jungle and forced subjugation of the weak. Example: The union cashing in a sheet to divide the server; it comes with a writ of mandamus to prevent wrongdoing.
Self-Composition
The difference between self-composition and autotutela lies precisely in the absence of forced entry to one of the litigants. Even today, in our planning, the three known forms of this mode of dispute settlement are provided for:
a) Waiver – The holder permanently and voluntarily relinquishes their claim, putting an end to the dispute unilaterally, for they no longer wish to obtain the object of their desire.
b) Legal Recognition of the Application – The defendant freely, and without any forcible entry, submits materially to the claim of the opponent, putting an end to the conflict through the spontaneous delivery of the object of desire that belongs to the author.
c) Transaction – The author partially abandons their material claim, while the defendant recognizes the merits of the party that is not waived, voluntarily surrendering part of the object of desire. Both come to a common denominator.
Judicial Review by the State
It is the responsibility of the state in lawsuits to resolve them with power enforcement action against the parties.
Purposes
Objectives:
a) The composition of disputes through the application and specialization of the general rules of conduct (law) in this case (legal scope).
b) Social pacification.
c) The achievement of justice.
Features
Jurisdiction has features for the application of substantive law after provocation of the parties, who have failed to resolve their conflicts amicably. It has substitutivity, consistent in acting in place of the parties, and is mandatory.
Principles of Jurisdiction
Inevitability: Once activated by the parties, the state will have to comply with decisions of the state and cannot be avoided, lest coercive enforcement (executive protection) occurs. Likewise, it is said that no injury to the law ceases to be enjoyed by the judiciary.
Investiture: Only political actors invested with state power to enforce the law in a case (judge) may exercise jurisdiction.
Indelegability: Jurisdiction cannot be subject to delegation by the agent that carries it exclusively.
Inertia: As a result of the principle of action, jurisdiction cannot be exercised by the agents who hold the letter of endowment, depending on where it is provoked by the parties.
Adherence: The exercise of jurisdiction, under the territoriality principle of procedural law, must always be tied to a prior territorial delimitation.
Oneness: Even though there is talk of jurisdiction in civil and criminal matters, in the Federal Court and State Court, in reality, this power and duty is one and indivisible. It only has relevance for the functional aspect of justice, not withdrawing from the jurisdiction its unified nature.
Contentious Jurisdiction and Voluntary Jurisdiction
Contentious jurisdiction is the inherent activity of the Judiciary, with the State acting as a surrogate judge for the parties in conflict resolution through the utterance of a sentence of merit that applies the law to the case. In voluntary jurisdiction, there are no disputing parties but simply individuals interested in the production of the effects of formal legal business. There is also no award of merit, with the application of the law in the case, but merely formal approval of the agreement of wills.
Action
Action is usually defined as the public, subjective, abstract right exercised against the state court, seeking to provide special judicial protection. For the judiciary to face the fight, giving a final decision and social peace, it is necessary that it satisfies the admissibility requirements of merit, consistent for inadmissibility and appropriate object of study, and the conditions of action.
Legitimacy
The author should be the holder of the claim deducted in court, and the defendant should be the one who resists this claim or must subject themselves to any sentence of origin.
Act of Interest
It is up to the author to demonstrate that, without the interference of the judiciary, their claim is at risk of not being met voluntarily by the accused.
Knowledge
It aims to inform the judiciary of the facts alleged by the law and obtain a statement of which party is right, through the application of standard equipment and expertise to the case.
Enforcement
It is the court action dismissed eminently to satisfy the creditor, due to the inevitability of jurisdiction.
Caution
It seeks to grant a procedural safeguard to ensure the effectiveness of the action of knowledge or performance. Caution aims to remove the danger arising from the delay in the development of the main proceedings.
Parties
Those involved in the legal proceedings are contradictory, developed before the judge. The author is the one bringing the claim in court, and the defendant is the one resisting the claim.
Causes of Action
These are the facts and legal grounds that lead the author to seek the judge.
Request
The first, called immediate, is the demand made against the judge, seeking to obtain judicial review. The second, named mediate, is the demand made against the defendant for the latter to submit the claim to the substantive law that the author says has not been respected.
Competence
Competence is the amount or extent of jurisdiction given to the governing bodies of exercise. The court, although one, needs to be distributed among the agents invested in it, all aimed at better administration of justice. It is the responsibility, therefore, of the division of state power among its politicians.
Criteria of Competence
Even within the civil justices, there are criteria that determine which of the various existing bodies will be responsible for assessing the demand.
Value of Consideration
All concerned must have a value assigned in the initial element that can serve as a factor in fixing responsibility.
Absolute Jurisdiction
Absolute jurisdiction is established in the public interest and is not subject to modification by the will of the parties in the forum of choice.
Relative Jurisdiction
Relative jurisdiction is established in favor of private interest in the search for facilitation of defense and may be waived by agreement of the parties.
Extension of Powers
This is the procedural phenomenon whereby the judge, at first relatively incompetent, becomes competent to hear the case due to the absence of opposition by the defendant via exception.
Liens Procedure
These are procedural powers granted to parties, which, although not mandatory, generate a loss in legal proceedings for the negligent party.
Postulatory Capacity
In the process tool and object of law positivism, with technical rules of their own, only those authorized in college have the legal capacity to posit in court, as they have knowledge of the laws.