Power of attorney

Justice is provided by judges and magistrates

The judicial power is a State power in charge of imparting Justice in a society. It is one of the three primary powers and functions of the State (along with the legislative power and the executive power), through the application of legal norms and principles in the resolution of conflicts. By "power", in the sense of public power, is understood the organization, institution or set of State bodies, which in the case of the judicial power are the judicial or jurisdictional bodies: courts and tribunals, which exercise jurisdictional power, which usually enjoys impartiality, autonomy and absolute power within the law.

According to Montesquieu's classic theory of the separation of powers, which distinguishes between legislative, executive and judicial powers, the division guarantees the freedom of the citizen. Montesquieu composed his theory after a trip to England where he interpreted that a power Independent judiciary can be an effective check on executive power. Under this separation of powers, the so-called rule of law is born, in which public powers are equally subject to the rule of law. The judiciary must be independent in order to be able to subdue the other powers, especially the executive, when they contravene the legal system and become in charge of making effective the idea of Law as a regulatory element of social life.

Functions of the judiciary in different legal systems

In common law jurisdictions, courts interpret the law; this includes constitutions, statutes and regulations. They also make law (but in a limited sense, limited to the facts of particular cases) based on prior case law in areas where the legislature has not made law. For example, the tort of negligence does not derive from the law in most common law jurisdictions. The term "common law" refers to this type of right. Common law decisions set a precedent for all courts to follow. This is sometimes called stare decision.

Country-specific features

Argentina

In Argentina and other countries, they have mixed systems that include lower courts, courts of appeal, a court of cassation (for criminal law), and a Supreme Court. In this system, the Supreme Court is always the final authority, but criminal cases have four stages, one more than civil law. A total of nine magistrates sit on the court. This number has been changed several times.

Chinese

In the People's Republic of China, the final authority in interpreting the law is the National People's Congress.

United States of America

In the judicial system of the United States, the Supreme Court is the final authority in the interpretation of the federal Constitution and all the statutes and regulations created by virtue of it, as well as the constitutionality of the different state laws; In the United States federal court system, federal cases are tried in the lower courts, known as the United States district courts, followed by the courts of appeals, and then by the Supreme Court. State courts, which judge 98% of litigation, may have different names and organization; trial courts may be called "instance courts", appellate courts "higher courts" or "commonwealth courts". The court system, whether state or federal, begins with a trial court, appeals to an appellate court, and then ends in the final court.

France

In France, the ultimate authority in interpreting the law is the Council of State for administrative cases, and the Court of Cassation for civil and criminal cases.

Italy

In Italy, according to the Constitution of the Italian Republic, "justice is administered in the name of the people" and "judges are only subject to the law" (art. 101 Const.). The judicial function consists of applying the law to disputes of a civil and criminal nature (ordinary jurisdiction), administrative, accounting and military (special jurisdiction) and of a constitutional nature (constitutional jurisdiction). In articles 101 to 113, the Constitution establishes the guarantees of independence of the judiciary ("autonomous order and independent from any other power" subject only to the law, powers and composition of the Superior Council of the Magistracy, appointment of the magistrates by competition, their tenure, etc.) and the guarantees related to the exercise of the powers of the judiciary.) and the guarantees related to the exercise of the jurisdictional function (due process regulated by law, the contradiction between the parties on an equal footing, the impartiality and impartiality of the judge, the reasonable duration of the trial itself, the obligation to give reasons for judicial decisions and the possibility of appealing to the Court of Cassation all sentences and decisions on personal liberty).

There is ordinary jurisdiction and special jurisdiction.

The Ordinary Jurisdiction deals with civil and criminal matters. In civil matters, the dispute arises between individuals, who are called "plaintiff" (the one who initiates the procedure) and "respondent" (the one who defends himself). In this case, the Justice of the Peace or the Court is used in the first instance, in the second instance to the Court of Appeal and in the third (final) instance to the Court of Cassation. In criminal cases, these are crimes that affect the entire community, and the dispute occurs between the prosecutor, who represents the public prosecution, and the defendant, who must defend himself. In this case, the Justice of the Peace is used in the first instance for minor offenses or the Court or the High Court for the most serious offenses, in the second instance the Court for offenses judged in the first instance before the Justice of the Peace, the Court of Appeal or to the Hearing for the most serious offenses and, for the review of legitimacy, to the Court of Cassation. The legal authority, called the "judicial authority," is in an impartial position. It is in charge of exercising the judicial function and validating the acts referred to in article 13 of the Constitution. The judicial authority is in a relationship of alterity with the judicial police, which acts based on the availability of the judicial authority with the tasks provided by the Constitution and the Code of Criminal Procedure.

The special jurisdiction is divided into administrative, accounting, fiscal and military. The first resolves disputes by public administrations (protection of legitimate interests). The administrative court, that is, in the first instance the Regional Administrative Court and in the second instance the Council of State, is the one that deals with it. The second resolves disputes over public accounting and entities financed by the State. This is the accounting judge, that is, the Corte dei Conti: its regional section in the first instance, the central section in the second instance. Fiscal jurisdiction is exercised by the provincial (first instance) and regional (second instance) fiscal commissions, subject to the jurisdiction of the Court of Cassation as a court of legitimacy. It is competent to know the resources of the taxpayers against the acts of the tax administration in fiscal matters. The military court in peacetime deals with crimes committed by members of the armed forces, while in wartime it exercises the jurisdiction established by law (article 103.3 of the Constitution).

Other names

In Colombia it is known by the name of judicial branch.