Litigation and Dispute Resolution
Litigation
Litigation is a conflict of interest characterized by one party’s claim and the other’s resistance.
Elements of Litigation
Subjective: Two or more individuals or parties, one seeking and one resisting.
Objective: A tangible or intangible legal asset.
Importance and Role of Litigation
Litigation helps determine when a conflict qualifies as a dispute suitable for judicial resolution. It also defines the subject matter of the process.
Autotutela
Autotutela is the self-imposition of a claim, potentially prejudicing others’ interests. It lacks a neutral third party and involves one party imposing a decision on another.
Permitted Autotutela Hypotheses
- Response to a Previous Attack: Self-defense, war in self-defense.
- Direct Exercise of a Right: State of necessity, liens, prosecution of bees, cutting branches, foreign animal hunting, discharge, covenant commissory.
- Carried Powers of Control: General average or ordinary, fulfilling a duty, hierarchical obedience.
- Exercise of an Authority: Disciplinary sanctioning power, economic power-coercive.
- Combat: Grief, war.
- Pressure or Coercion Media: Strike, strike clause exclusion.
Autocomposición
Autocomposición involves renouncing a claim or submitting to the counterparty, offering a partial solution by one or more parties. It can be unilateral (abandonment, forgiveness) or bilateral (transaction).
Heterocomposición
Heterocomposición provides a fair solution through a neutral third party unconnected to the dispute.
Heterocompositive Media
- Mediation
- Conciliation
- Ombudsmen
- Arbitration
Substantive Law and Instrumental Law
Substantive Law: Establishes rights, obligations, powers, duties, and penalties for individuals.
Instrumental Law: Prescribes procedures for creating, implementing, and enforcing substantive law, defining the competence of involved state organs.
Litigation
Litigation encompasses legal rules and principles governing judicial processes, including the integration and competence of involved state bodies.
Features of Litigation
- Public Law: Regulates a state function.
- Instrumental Nature: Provides tools for conflict resolution.
- Autonomy: Has distinct concepts, theories, principles, and institutions.
Evolution of Litigation
- Early Doctrine Period: Lacked a formal process.
- Legal Period (12th Century): Roman and Germanic law influences shaped common law.
- Practical Period (16th-19th Century): Procedural matters were considered an art.
- Procedural Period (Napoleonic Codification): Focused on judicial organization, jurisdiction, and procedure.
- Scientific Procedural Period: Differentiated substantive and procedural legal relationships.
General Theory of the Process
This branch of procedural law studies concepts, principles, and institutions common to special procedural disciplines.
Key Concepts
- Action: Power to initiate court activity for dispute resolution.
- Jurisdiction: State organ’s function to resolve legal conflicts.
- Process: Set of acts performed by the judge, parties, and others to achieve dispute resolution.
Principles
- Contradiction
- Equality of parties
Institutions
- Judge as the holder of the judicial function
Special Litigation
This area includes disciplines governing specific processes.
- Process of Private Interest: Device principle predominates.
- Process of Social Interest: Equal compensation principle governs.
- Process of Public Interest: Publishing principles predominate.
Jurisdiction
Jurisdiction derives from the Latin “iurisdictio,” meaning to say or indicate the right. It has several meanings, including territorial scope, expertise, all courts within a system, and public service of justice.
Division of Powers
Influenced by Montesquieu and the French Revolution, the separation of powers is fundamental to democratic constitutionalism and the rule of law. It limits powers and prevents any one organ from becoming too powerful.
Branches of Government
- Executive: Foreign policy and national security.
- Legislative: Creating legal norms.
- Judicial: Imposing penalties and resolving conflicts.
Jurisdictional Role
- Legislative: Issuing laws.
- Executive: Enforcing laws, maintaining order, providing services.
- Jurisdictional (Stricto Sensu): Deciding disputes through legal processes.
- Jurisdictional (Lato Sensu): Exercised by independent state organs through processes, rendering decisions and ensuring implementation.
Divisions of Jurisdiction
- Voluntary: Judge doesn’t decide a dispute.
- Litigious: Aims to resolve disputes through law.
- Federal, Local, Concurrent, Auxiliary: Different levels and types of jurisdiction.
- Forcible and Extension: Cannot be altered by parties’ agreements.
- Retained and Delegated: Levels of court autonomy.
- Regular, Special, Extraordinary: Different types of courts for specific disputes.
Limits of Jurisdiction
- Objective: Determined by the type of dispute.
- Subjective: Determined by the individuals involved.
Competence vs. Jurisdiction
Jurisdiction is the general power to administer justice, while competence is how that power is exercised based on material circumstances, amount, grade, territory, etc.
Criteria for Determining Competence
- Subject
- Amount
- Grade
- Territory
- Additional criteria: attraction, related actions, prevention, time
Conflict of Jurisdiction
- Pleas
- Inhibitory
Impartiality
Impartiality is essential for judicial function. Impairments, excuses, and disqualifications can affect a judge’s impartiality.
Action
Action derives from the Latin “actio.” It has various meanings, including a subjective material right, a claim, and the right to promote a process.
Theories on the Legal Nature of Action
- Material
- Windscheid-Muther Controversy
- Right to Specific Care
- Abstract
- Liebman’s Synthesis
Action Requirements
- Legal interest
- Ambition (claim)
Relationship between Action, Exception, and Right to Jurisdiction
Action and exception stem from the right of jurisdiction, which is the right to access courts and raise or defend a claim.
Trial, Procedure, and Process
- Trial: Judge’s ruling or decision.
- Procedure: Formal development of a process or stage.
- Process: Sum of acts constituting a legal relationship.
Theories on the Nature of Legal Process
- Private theories (contract, quasi-contract)
- Public theories (legal relationship, legal situation)
Process: Purpose and Object
- Purpose: Resolving disputes through a judge’s sentence.
- Object: The litigation brought by the parties.
Stages of Criminal Proceedings
- Preliminary investigation
- Preinstruction
- Instruction
- Trial
- Appeal
- Direct appeal
Stages of Non-Criminal Processes
- Exhibition
- Probation
- Closing
- Second instance
- Execution procedure
Principles of Due Process
These principles guide procedural activity and can be classified as basic or specific to certain sectors.
Classes of Judges
- Sole proprietorships or unit (judge)
- Pluripersonal or college (court)
Judicial Guarantees
- Independence
- Authority
- Responsibility
Public Ministry
This state organ investigates crimes, brings criminal action, and intervenes in processes affecting public order or the interests of absent persons, minors, and the disabled.
Functions of the Public Ministry
- Investigating crimes
- Pursuing criminal action
- Participating in other processes
Party
A party demands or is demanded against in a legal proceeding.
Capacity, Standing, Legitimation, and Standing in the Cause
- Capacity to be a party
- Standing
- Legitimation in the process
- Standing in the cause
Third Party
Anyone not a party to the process, including witnesses and experts.
Classes of Third Parties
- Spontaneous (adjuvants, exclusive, domain, preference)
- Caused
Attorney
A person engaged to give legal advice and defend interests in court.
Modes of Legal Practice
- Sponsorship
- Procurement
Procedural Act
A legal act that can create, modify, or terminate proceedings.
Conditions of Procedural Act Form
- Language
- Signatures
- Authorization
- Abbreviations
- Corrections
- Advertising
Term and Deadline
- Term: Period for performing a procedural act.
- Deadline: Specific time for the start of a procedural act.
Procedural Acts
- Of the parties
- Of the court
- Of third parties
Judge, Court, and Minister
Definitions and distinctions of these legal terms.
Methods of Judicial Selection
- Anglo
- Roman-Germanic
- Mexican Order
Facts vs. Procedural Acts
Distinction between events and acts in legal proceedings.
Subject Classes
Examples of different court systems and organizations.