Procedural Law: Action, Execution, and Criminal Proceedings
PART IV: ACTION
The Emergence of Procedural Law
The subject of action marked the movement of procedural law as an autonomous branch. Procedural law began to recognize that the rights exercised in legal proceedings are distinct from private subjective rights. The initial question is how procedural law was established. The concept of subjective action seeks to explain the judge’s right and obligation to protect the rights of litigants, essentially explaining the initiation and operation of judicial machinery. This raises two key issues within the right of action.
Actions and Rights
To address the first issue, the relationship between actions and rights needs clarification:
- Actions without right: There is no inherent right to an annulment of marriage action, only the right to request it. If a marriage is void, there’s no right to annulment, but there’s a right to ask the judge to determine its validity.
- Rights without action: Examples include prescribed debts (where the creditor has a right but cannot enforce payment) and natural obligations. The right exists but cannot be legally exercised.
- Distinct content of subjective rights: The content of a material subjective right (e.g., arising from a contract) differs from the content of a subjective right of action. The latter involves requesting the judge to order the defendant to fulfill an obligation. This right is directed at the judge, not the opposing party, and seeks protection of the material right.
- Multiple actions for one right: The same legal right can be protected through various actions. For example, property rights can be protected through a declaratory action or an action for eviction.
Procedural Law’s Independence
The second issue highlights the independence of procedural law from substantive law, while acknowledging their close connection. Procedural law is instrumental in safeguarding substantive rights. It can be considered a formal law, focusing on requirements and procedures. Until the advent of procedural law, rights lacked effective enforcement. This second question explores why the judge initiates the process to protect a right, leading us to the fundamental rights of litigants, which are integral to the right of action.
Basic Rights of Litigants
- Right of access to the courts: This fundamental right ensures that anyone can petition a judge, and the judge is obligated to respond, regardless of the nature of the response.
- Right to due process: This substantial right guarantees a ruling on the merits of the case, although the ruling may be favorable or unfavorable. It requires fulfilling procedural prerequisites, such as jurisdiction, competence, legal standing of the parties, and a valid claim. If these prerequisites are not met, the process cannot proceed to a judgment on the merits, potentially resulting in a dismissal without a decision on the substance of the case.
- Right of action: This specific right entails the right to a favorable judgment upholding the claim. There is debate on whether it’s a distinct right or simply the right to due process. Some argue that the right of action is essentially the right to a fair and complete adjudication of the claim.
The Lawsuit and its Significance
The process begins with a claim, a formal act by a party asserting the existence and ownership of a procedural right and the right of action. The judge’s obligation to initiate the process is contingent upon this formal act. The lawsuit is the procedural expression of the claim. Some view the process as a claim asserted and resisted by the opposing party. If there is a right to a judicial decision, the sentences cannot be labeled as just or unjust. Justice is about giving each party what they are entitled to under the law.
Budgets of the Right of Action
Chiovenda, a prominent Italian procedural law scholar, referred to these as “conditions of action.” Spanish legal theory favors the term “budgets” as they are prerequisites for proceeding to trial. They can be effective or ineffective.
Key Budgets
- Interest: Justice, as a public service, should be invoked when there is a legally protected interest. In some cases, like debt claims, the interest is presumed. In declaratory actions, the interest must be demonstrated, such as in a property action where the plaintiff must show that their ownership is being challenged or threatened.
- Permitted Action: Judicial protection must be allowed by law and not prohibited. Article 5.1 of the Code of Civil Procedure outlines classes of judicial protection and potential limitations.
- Legal Right: While not always a subjective right, the claimant must demonstrate the existence of a legal right.
- Standing: This refers to the capacity to bring a claim. It’s not enough to be involved in a legal relationship; one must be entitled to assert it in court. Legitimacy often reflects an interest in the outcome of the proceedings. Articles 10 and 11 of the Civil Procedure Rules address legal standing.
Executive Action
The Right to Enforce Judgments
The question arises whether there is an independent right of action in the execution process or if it’s an extension of the declaratory process. The main argument for autonomy is the existence of titles that allow for execution without a prior judgment. This leads to examining the rights involved in the execution process:
- Right of access to the courts: Similar to declaratory processes.
- Right to enforcement: This resembles the right to due process but focuses on the judge initiating the execution process and taking measures against the debtor’s assets (e.g., attachment). The budget for this right is the enforcement title (“sine titulo executio nulla“).
- Executive action right: The creditor seeks not just the initiation of execution but also the full recovery of the due amount. The execution process remains open to changes in the debtor’s situation.
Differences from Declaratory Action
The key difference between the right of action in declaratory and executive processes lies in the budgets. In declaratory actions, the claimant must demonstrate the budgets (interest, legal right, legitimacy, and permitted protection). Failure to do so can lead to dismissal. In the execution process, the holder of the title is presumed to have the right to recovery, and the burden of proof shifts to the debtor to demonstrate otherwise.
Criminal Action
Application of Principles to Criminal Proceedings
Can the same framework from declaratory and executive processes be applied to criminal proceedings? In declaratory processes, a legally protected interest (personal right) allows for seeking a favorable judgment. Criminal proceedings, however, are primarily driven by public interest and the principle of legality. Individual rights are not the sole basis for judicial protection. This doesn’t preclude adversarial elements, but the criminal process often involves an inquisitorial phase (instruction) alongside the adversarial trial phase.
The Right to Prosecute
The question remains whether there is a right of action in criminal proceedings. Some authors refer to a “ius ut procedatum,” the right of an individual or the prosecutor to initiate an investigation. The judge’s decision to proceed depends on the evidence presented. If there’s insufficient evidence, the case may be dismissed. This explains:
- No right to a trial: The initiation of a trial is contingent on sufficient evidence.
- No right to a conviction: Neither the victim nor the prosecution has an inherent right to a conviction. The judge’s decision is based on the evidence and the law.
The ius ut procedatum is often based on a complaint, but its acceptance depends on the presence of evidence suggesting criminal activity. The judge’s decision to proceed is based on this assessment.