Procedural Law: A Comprehensive Guide

Posted on Aug 7, 2024 in Law & Jurisprudence

BOBBIN 1: Procedural Law

Previous Notions of Procedural Law

Status: The legal organization of people within a given territory. It fulfills three functions:

Determination of the legal system by establishing rules to regulate relations between individuals.
Maintenance of this order when altered.
Meeting the needs of safety, welfare, and general culture for all.

The state fulfills its judicial functions in three ways:

The organization of justice.
Determining the jurisdiction of the courts.
Establishing the rules of procedure that judges and litigants should follow during proceedings.

Importance of the Judicial Function

The judicial function is exercised through designated bodies, namely judges, who apply the law to the case presented before them, based on their knowledge of the facts, and deliver a sentence.

The sentence is the primary concept, the act by which the state resolves a dispute between parties. It is vested with the authority of res judicata and is enforceable.

These two characteristics make the judge’s ruling similar to the law; it is the law applied to the specific case.

Concept of Procedural Law

Concept: Procedural law encompasses the rules governing the judicial activities of the state for applying substantive laws. Its study involves the organization of judicial power, determining the competence of officials, and outlining the performance of judges and parties involved in proceedings.

Content of Procedural Law

Content:

Jurisdiction: This includes the study of the role of enforcing the law and administering justice, encompassing the powers of the judiciary, the organization and functioning of courts, the competence of judges, and the duties and powers of judges.
Action: This covers topics such as the legal status of parties and their representatives, capacity and legitimacy to demand, and so on.
Process: This includes all procedural acts from the beginning of the process until its completion, when the final decision becomes final.
Competence: The capacity that the law recognizes a judge or court to exercise its functions with respect to certain specifics.
Claim: The statement presented to the judge, prompting their jurisdiction, outlining what the party wants to achieve.

Public Nature of Procedural Law

Public Law: The prevailing view is that procedural rules are always public because the process takes place through the judge, representing the state’s judicial function.
Instrumental: Procedural law is the means by which substantive laws are applied. It is not only a means but also has its own finality, ensuring justice is administered properly, respecting all guarantees (due process, equality before the law, etc.) to allow for a fair solution.
Autonomous: Procedural law has a life independent of substantive law, although their relationship is one of means to an end. It has its own principles (“principles of due process” – contradiction, estoppel, economy, etc.) and separate rules from substantive law, regarding the procedural relationship to the action and the process.
Divisible: Procedural law is unique; however, divisions can be made: civil procedure, criminal procedure, labor procedure, etc. These divisions do not affect the idea of unity because they all regulate the conduct of those involved in the process and apply the basic principles of procedural law.

Function of Procedural Law

Procedural law is responsible for:

Jurisdiction and venue of the courts.
Powers, duties, and rights of assistant judges.
Legal status of the parties and their representatives.
Requirements, contents, and effects of events during the process.
Application of the substantive rules.

Features of Procedural Law

According to the province:

It is an autonomous branch, not an end in itself but an instrument for the protection of substantive law, as well as a right that has its own principles.
Autonomous: It is independent of the substantive law.
Contains a proprietary method, as it has its own institutions, such as action, jurisdiction, and procedure, so it differs from other processes, which is instrumental.
Is part of public law: regulating the function of the state with the constitutional and administrative law, but is also serving private law, because he who studies and applies it is the judge.
Have their own instruments as the expiry of instances is a means of determining the process when the plaintiff urges that the process does not follow, what is the procedure expires and expires by a car that makes the judge.

Sources of Procedural Law

The sources are all the valid provisions that can be cited in the process to establish an act.

The National Constitution: This includes norms regarding the administration of justice, the obligations of provinces with respect to the administration of justice, the incompatibility of federal and provincial judges, the manner of appointment of judges, etc. It also has rules regarding the regulation of civil process, such as:
- Organization of the judiciary.
- Suspension of personal privileges.
- Ban on anyone being tried by special committees or outside their country of origin.
- Defense at trial or defense guarantee.
- Opportunities for parties to intervene in the process.
- Appointment, removal, and legal competence of judges.
International Treaties: Any agreement or concurrence of wills between two or more states or objects of international law, by which is created, modified, or extinguished among them a particular legal relationship.
The Law: Expressions of existing law issued by a competent body, Congress. It is the source par excellence. These are all those provisions issued by the authorities who have the power to dictate them. Laws are classified as:
- Specific: Those that tend to treat a particular point in the legal world, solve cases.
- Systematized: Those that comprise or affect the entire legal world, such as checking the Act.
- Substantial: Corresponds to the setting of limits, behavior, and distribution of goods in the community.
- Proceedings: All those who do respect the right background and set out ways to restore, for violation.
- National: Those issued by federal agencies that affect all inhabitants of the Nation.
- Federal: Those issued by a government that only affects people who are within its competence.
- Local: Those reserved for the provinces, such as the judicial body, makes the determination of taxes.
- Decree – Law: Those laws that dictate to form different areas of law.
- Decrees of necessity and urgency: Dictated by the executive, the president of the nation, who has the power conferred by Art. 99 inc. 3 of the constitution.
Rules: Necessary for the management and handling of litigation, without altering procedural law.
Custom: The use of doing certain things which are then reflected in the law.
Agreed: Administrative rules of the judiciary to resolve situations to partially modify the rules and address the court’s internal procedures as to solve procedural problems.
Resolutions: Seek to address staffing issues (licenses, sanctions, appointments), and regular supplementation of law issues, such as updating amounts.
Customs and Judicial Practice: Procedural rules reject the usual calls forensic customs or practices of the courts of no force or effect, though often meet for convenience.
Case Law: A set of judgments of courts in a manner consistent concluded on a certain point and which serve as precedents for future rulings.
Doctrine: A set of opinions of the authors in a given area of law. They are not mandatory for the judges but the parties used to give greater accuracy and but what they want.

Procedural Rules

Concept: Rules of behavior sometimes directed to the judge and other litigants, whether in the form of taxation or recognizing a right by a precept whose expression is the law. The rule works against the will of those imposing an injunction for this to be considered valid.

Public Order and Standards of a Private Nature

The provisions of public order may not be waived even with the consent of the other party or the judge, i.e., one after sentencing must be met if or if what she dictates. Are those rules of public order and the organization of courts, the appointment and competence of judges.

The private order can be set aside if there is common agreement of the parties.

Rating of Procedural Rules

Organic: Those governing the organization and jurisdiction of the courts.
Procedure: Those that regulate the actions of process and procedure development.
Formal: Regulate the conditions of time, manner, and place.
Materials: Determine the legitimacy and capacity requirements and the content and effects of the act.
Absolute: Must always be applied to attend the event for which they have been dicadas, so the judge can not ignore them even if the parties so request.
Devices: Those whose application can be dispensed either through agreement between the parties or by the omission of not highlight a failure.

Application of the Standard in Time

The matter has been reserved to the discretion of the legislature, with the only limitation arising from existing acquired rights. In the absence of regulatory standards are the following distinctions:

A new procedural law cannot validly be applied to those processes that, at the date of its entry into force, are concluded by a final sentence.
The new law should only apply to processes that are initiated after its entry into force.
The processes in the process can be achieved by the new law provided that no amount of process affect that has been completed or the validity of signatures under the old law.

The amendment of a law or the creation of another to modify the process affects all processes initiated or not resolved at the time of entry into force, but not already solved, otherwise, the issue would violate acquired rights.

Effects of Procedural Law in Space

Procedural laws are valid only within the territorial scope of the state that issued them and apply to both full processes brought before the courts of this state as a particular procedural steps carried out by those requirement of foreign courts. The law only has effect within the territory on which those spreads.

Interpretation of Procedural Rules

Interpreting a rule is to reconstruct the thinking of the legislator, i.e., to rethink a thought. The way to externalize a thought is the word, which then becomes what is the law. There are different methods:

Exegetical: Investigates the meaning of the law by examining its genesis. Set which has been the legislator’s intention.
A Contrario: By way of exclusion is that a rule contains an implicit contrast.
Authentic: Is what makes the legislator.
Grammar: Refers to the word is interpreted to mean a word that is not clear.

Constitutional Control

It is the right of judges to compare a standard dictated by political power, either legislative or executive, with the rules laid down in the constitution. The constitutional control is found in Article 31 of the constitution.

Rating of Constitutional Control

According to Admission:

Positive: Textoconstituciona explicitly in, or implied in the customary constitutional law, admit the existence of control.
Negatives: Does not support the constitutional control despite having need for the constitution because of the rigid type.

According to the Supervisory Bodies:

Court (or court appearance): The control is entrusted to courts and outside the judiciary.
No court: The distrust of the judiciary (conservative, not popularly elected) has to be handed control of constitutionality to other entities.

According to State Limits:

National: The control organs are organs of state themselves controlled.
International: The signatories to certain international conventions have been under the jurisdiction of certain courts may distort the supranational sentenced by the national judiciary, as their final judgments are binding on states.

According to the Training of Judges:

Lawyers: Require high training, which certainly in the interest of the independence and capacity of judges.
Legos: It is recognized that the lay judges (not lawyers) control performed in jurisdictions where there are no professional judges.
Mixed: Other mixed legal systems with legos. Some do it in pursuit of greater social awareness of judges, others for other subject specialists considered important.

Depending on When:

Prevention: Control is performed prior to the enactment of the law, about the project. Or, on the law but before its enactment.
Repair: After the rule went into effect.
Mixed: You can control before and after the standard endorsement.

Depending on the Mode of Appeal:

Abstract: The challenger is not in a legal relationship which is affected by the rule unconstitutional.
Concrete: This legitimized only when there is a legal relationship where someone is injured by the rule unconstitutional a subjective right or legitimate interest simple interest. Access roads to the jurisdiction are diverse: concrete declaratory action of unconstitutionality, amparo, ancillary, or executive summary trial, and so on.