The Claim Procedure: A Comprehensive Guide
Ball 3
Claim
Preliminary notions:
Elements of the process:
Every process has a subjective and an objective element, and also imports a particular activity.
The subjective element,
is represented by the persons empowered to start it, drive it to demand it and say it.
In the primary subjects contentious proceedings are judicial or arbitral body and parts.
The judiciary as the holder of a public (or possibly comparable to that), is in a superordinate level in relation to the latter, as it may impose, through individual acts of creation rules, the observance of certain behaviors. Furthermore, when the body is of a judicial nature, belongs exclusively with the lawful use of coercion.
In contentious proceedings are necessarily two parts: actor and defendant.
Actor:
the one who makes the claim that must be satisfied by the organ, and the defendant: the person against whom such claim is made.
Both of them are below the organ, a hierarchically equal.
In processes such as primary subjects are volunteers who are court below, one or more petitioners.
Full compliance with procedural functions required the involvement of other persons who act as auxiliaries in the process of the court or the parties or petitioners, and may be termed as secondary subjects.
The objective element of the process can be made up of a claim or a request extracontenciosa, according to the organ interveci is required to resolve a conflict or to form, join or agree to a legal relationship effectiveness.
The claim and the request extracontenciosa form the object of litigation and voluntary process.
The claim that gives life to the civil process is about a relationship or legal status of substantive law that does not transcend the private interests of the parties. Hence, the plaintiff may withdraw its claim or waive the right claimed by her, the defendant to acquiesce to the claim of the plaintiff, and both parties compromise (first device).
This availability of procedural purpose, is a reflection that the parties have their individual rights, is the note that further separates the civil proceedings to criminal proceedings.
The activity:
comprises all the acts to be met by parties to the proceedings from the beginning of the process until the decision terminating him.
Procedural notion of object:
Is the subject matter around which spins its initiation, development and extinction.
The object is represented by one or more claims or requests extracontenciosas, depending on whether, in a contentious proceeding or a voluntary process.
The Claim Procedure: (Concept):
the act under which the claim before the court (or arbitral eventually), and facing a different person, the resolution of a dispute between that person and the author of the claim.
Camelutti says something someone does, not that anyone has. This act involves the claim of certain conduct of a body with decision-making power, portrayed as a declaration of intent petition. Recipient is a decision-making body.
Must be brought before a person other than the author of the complaint, which faces at least 2 characters.
The legal of the claim procedure, requires that this contains a statement of law or legal consequences of a particular factual situation, regardless that this claim is identical or not with the current regulatory system. The claim may be nominated by his peers as one who has no right can be founded or unfounded.
Elements of the claim
The claim procedure consists of a subjective and objective elements of two (object and cause) and involves an activity that is split in 3 dimensions: place, time and form.
Subjects:
all pretense has 3 subjects: the person making the person against whom it is formulated and the person to whom it is formulated. The first two are active and passive subjects of the claim (defendant actor, performer and executed), the third person is represented by an organ recipient in the nature of the claim and has the duty to satisfy, either through their placement or rejection.
Active subject,
must necessarily be individualized. To this end, the law places the burden of expressing your name (art 164 inc1 CPC) or the signature or name by which it acts and address. It should also be individualized passive subject of the claim.
Purpose:
It is the legal effect through it pursued.
- The immediate object: the kind of pronouncement that is claimed.
- Mediate object: the good life on which must rest, namely the ruling order.
The cause or basis of the claim title,
is the invocation of a particular case de facto situation which the actor is assigned a particular legal consequence. It acts as a supporting reason, is to delimit, providing the concrete industry to the judge within which to judge the case.
Activity:
In the dimensions of time, manner and place coincide with the place, time and form of the process in which this is asserted. Instead the Court will have jurisdiction in the respective process, and time of the act the same process intended to approach the subject in dispute, and as the law is assigned to the process concerned.
Requirements of the claim:
(concept) has 2 requirements: eligibility and fundabilidad.
- It is permissible: when possible the verification of its contents and issue a ruling on the merits of the matter before the court decision.
- It is founded, where, because of its content is appropriate for a decision favorable to those who have filed.
Requirements:
- Eligibility: a) extrinsic procedural requirements: on the one hand concerning the subject, object and cause.
-Subjects: – the body before whom the claim follows must be competent. It is distinguished from the competition by reason of material, value or grade, the judge is empowered to declare it officially. In the territorial competence, incompetence can only be sued if the declared articulates the relevant exception. If plaintiff or defendant acting through a legal representative or conventional, should be presented documents proving the legal status, as well as the validity and sufficiency of powers. In the active or passive is necessary to have ability to be part of, and have standing. Mediaren Defects in these requirements, authorize the objection of lack of personality. Another condition of admissibility is in reference to the subject asset, the roots of the responsibilities of demand.
-Object: – must be suitable with regard to the type of process in which the claim has been filed. The actor must designate exactly the thing demanded and make the request in clear and precise. Deficiencies can lead to rejection in limine, or be reported through an exception to legal default mode of submitting the application.
-Causes: it is founded by a lengthy list of factual background, which attributed the actor seeks legal effect.
The declaration of inadmissibility applicable only in the event that the defendant invokes the exception of lis pendens. Applicable, the doctrine of res judicata, assuming it has received final adjudication of the case originated in the first term
– Location of the claim: it is the seat of the Tribunal that the perpetrator have jurisdiction to consider it
– Time: that the claim should be inferred generic and specific limitations. Generic: are what determine the days and hours to meet procedural acts valid. Specific: those rules that exclude the admissibility of certain claims when these are raised before or after certain period.
– The claim form: the way she should speak the language used in its formulation, the corresponding set of requirements to be observed in the drafting ofserved in the drafting of the document in which it appears, the addition of copies of the complaint and documents she added.
b) fiscal requirements, is limited to the payment of the tax which levied the tax law proceedings, including: filing fees, contributions Act 5059 (Caja Forense) and fixed charge (Bar). Also the tribute for the exception of certified copies.
Extrinsic eligibility requirements:
- With respect to the subject: fitness refers to the matter on which the claim relates proceedings in each particular case. It is necessary that those who actually participate in the proceedings as parties (plaintiff or defendant), whoever they should appear in this process in that particular process taking such quality. These are just parts or parts of legitimate and legal competence to be described by such terms is called standing to act or standing. Standing to work is one requirement under which a match must mediate between the people who actually act in the process and the people which the law enables them to pretend and to contradict.The claim must be tried by the right holder against the person liable, the parties substantial legal relationship. The demonstration of quality is invoked when referring to active and passive actors when it comes to the defendant. The lack of that quality, or because there is no identity between the person of actor and one whom the claim is granted, or between the defendant and that person against whom it is granted, determines the source of the actio agit sine defense (lack action) that must be raised to answer the complaint and appreciate the final sentence. This legitimacy to act is not required for the exercise of the action, but for admission in the statement. The legitimacy of the quality of work is not required for the exercise of the claim but, for admission in the statement. The replacement procedure: a replacement must prove the right of the third, and quality to carry the claim, as in the case of the obligation oblique changing the owner of the right or obligation, vary the subject of standing, but does not change its situation in the process already underway.
Representation proceedings: when the exercise of the claim does not correspond to the right holder, but to a different person
- Parents regarding their children, have a dual status: on one hand hold a right, that of parental authority, which grants them certain powers over the people and the child’s property, on the other are their representatives to third parties. Representatives are unable to: – the people born parents, and in the absence or disability of these healers that they name; of unemancipated minors parent or guardian and without their intervention may be in court as plaintiffs or defendants . Parents without any intervention of their minor children may be on trial for them as plaintiffs or defendants, and on behalf of any contract they enter into the limits of his administration identified in the CC). Parents have a right to interest, is invoking this capacity should be justified in the course of the proceedings. Then carry the claim, but in the interests of the child, and then to be justified at the time of commencement of the trial, his legal representative, may prove in the trial as the holder of the right of the child.
- Case of other unable (insane, deaf mutes): no distinction to make, because the curator does not exercise any right, but acts as a mere representative. Hence, it must prove, at the beginning of the litigation, nature called, and can, in the course of the proceedings, local legitimacy of his principal. In the same situation is the guardian over his ward.
- Plurality of creditors or debtors, the law determines who is responsible for the exercise of the claim. If the claim is indivisible, each creditor will be entitled to demand their share of credit to individual borrowers for their share in the obligation. When there are many lenders and many borrowers originating or by succession, each of the creditors only entitled to demand their share of the credit and the debtor would have paid all the debt to one creditor, are not exonerated from paying the part of each creditor, and conversely, each debtor may only be obligated to pay his share in the credit, and can repeat everything paid, if the obligation is indivisible and united, each creditor may require each borrower full compliance with the obligation, simultaneously or successively, to make full payment of your credit, and interrupted a claim against the claim with respect to the others.In case of silence of the law must be considered: when the claim tends to get a benefit, the plaintiff shall be entitled in proportion to their interest and in similar proportion in relation to the defendant, because solidarity is an exception. But when he had intended to change the legal situation should be directed against all who are interested, because there is joinder necessary.
- With respect to the subject, is among the inherent requirements of admissibility of the claim procedure to try to interest a claim, and to contradict it, you must have interest, because only with this condition compromises the judicial activity of the state: the judges make abstract statements. They are two principles – no claim no interest, – the interest is the extent of the shares. It just takes a lack of judicial intervention may cause harm regardless of the nature, so that the interest was justified. The determination of the presence or absence of procedural interest is a matter that rests with the judge, the need for legal protection is a fundamental prerequisite for the very exercise of judicial functions. The lack of procedural interest can officially declared der.
- Fundabilidad of the claim, verified the existence of the conditions of admissibility, the judge was in a position to rule on the merits of it and whether it is founded or not. Will occur when the claim first trial, because of its content is appropriate for a decision favorable to those who have raised, and from which such content is represented by a concrete factual situation, which is attributed to a given legal effect to fundabilidad test is to determine whether or not to legal effect to the state of facts. In this task the judge acts on the basis of their knowledge of the existing legal order, may dispense with the rules invoked by the parties and supply the omissions of legal reasoning than those incurred. It is, exclusively to the parties, ownership of the data set of factual circumstances be legally assessed by the judge. The content of the claim should be judged on the actions taken by the parties during the development process. Not enough input from the facts, this is complete, assuming the disputed facts shall rest with the parties the show, according to some distributive rules that the judge must assess.
Resistance to the claim, against the positive attitude of the claim and the prosecution, there is the negative attitude that wants to prevent or require the positive claim by a claim opposed and incompatible (negative demand certainty).
-There are two ways in the civil process to perform the task:
- The defense: it appears as any act that tends to the negative statement of assurance.
- The exception: understood as any means used to obtain the respondent rejected the request made by the author.
Classification of the claim:
Generated sentences: declarative-right: going to clear a situation of uncertainty.
-Executive:pursue the fulfillment of an obligation previously documented.
-Measures (Article 112 CPC): seek to ensure a fact or law for the purpose of that may eventually enforce a favorable ruling.
– Of conviction: it imposes an obligation to give, do or not do to another person.
-Constitutive: they are, modify or extinguish create legal consequences.
Protecting rights, ‘Heritage,’ Personalesl
– Royals
– Pecuniary: – Political
– Marital Status
– Health, etc.
Extracontenciosa procedural request: The purpose of a voluntary process is not made up of a claim, but a request extracontenciosa.
Concept: extracontenciosa request is the act under which the claim before a judicial body and in the interest of the petitioner, the issuance of a pronouncement that form, join or agree to certain strata efficacy or private legal relationship.
Ball 4
Jurisdiction: (concept): power granted to the judiciary to attribute to the law and enforce it.
Competition (concept) is the scope, limits the jurisdiction. It is the faculty that the right to stop a certain number of issues.