Procedural law

The procedural law is the set of rules that regulate the judicial process, that is, it regulates the requirements, the development and the effects of the process.

Procedural law is a branch of public law that includes the set of acts through which the legal relationship established between the judge, the parties and the other intervening persons is constituted, developed and determined. The purpose of this legal relationship is to resolve the dispute raised by the parties, through a decision of the judge based on the affirmed and proven facts, and on the applicable law.

Concept

The object of procedural law is the judicial process. The judicial process is, in turn, one of the possible solutions to settle conflicts with legal relevance.

When there is a violation of the precepts established by law (when there is legal dissatisfaction, a disagreement between the law and what is happening), a means must be sought to resolve and end the conflict. At least three solutions are possible: self-protection, self-composition and the process itself.

1. Self-tutela is the direct and personal action of those who do justice by their own hand. It is generally limited — and in some cases prohibited — by law. Among the cases in which it is admitted is the right to strike or self-defence. Autotutela means a partial solution for the private interest of a party.
2. Self-composition (also called submission or resignation) is the total or partial waiver of the person who suffers the injury, his claim. Examples of this are debt remission or transaction.
3. The process, in which the parties rule their dispute before the court—impartial—and that the parties are subject to their decision.

Doctrinal definitions of procedural law

• “Procedural law can be defined as the branch of public law that studies the set of rules and principles that govern the jurisdictional function of the State in all its aspects and that therefore set out the procedure to be followed in order to obtain the performance of positive law in specific cases, and that determines the persons who must be subject to the jurisdiction of the State and the officials responsible for exercising it.”

• “Procedural law is a set of legal norms, an integral part of the state system that is characterized by serving for the application of the objective right by the jurisdictional bodies to the particular case.”

• Procedural law is the instrument for the enforcement of material law. This helps to ensure that the precept of material law that has been transgressed is enforced, even if it is forced.

• Procedural Law is a branch of the science of law that studies the powers, competence, functioning and organization of the courts of justice, in addition to the rules of procedure that must be used by individuals in the approach of their claims and against pretensions to the jurisdictional bodies.

Denominations

Throughout the history of law, procedural law —even though it is a branch of “young” law— has received different names and its content has even varied. Until the XVIII century in most European continental law countries (mainly Latin), its content was that of the mere judicial practice. It was called judicial practice, civil practice, or practice iudicium. text-transform:lowercase">XIX the term “practice” is replaced by procedure, and the subject method describes the process and examines the scope of its provisions. Already at this time Chiovenda called it procedural law.

Then there are other ways of naming it. For example, in French doctrine —regarding civil procedural law— the name droit judiciaire prive was common, while in Spanish doctrine the term jurisdictional law was common. But these terms do not coincide in terms of the content they cover. The first refers to the traditional conception that referred to judicial law, while the second is broader than the first, covering in addition to procedural law itself, the organization of the courts.

German doctrine preferred the term prozess over procedur. The Italian school, from the 12th century to the XVIII referred to the matter with the term iudizio, and in the century XIX —due to French influence— replaced it with procedure, and finally in the XX century —due to German influence— was replaced by diritto procesuale.

Concepts involved

Procedural law is structured around three basic concepts:

• Jurisdiction is the role of the courts in knowing, sentencing and executing what is sentenced in conflicts which are subject to its decision.
• The action is the means by which a person urges the jurisdiction to be pronounced on a matter and to grant effective and fair jurisdiction. The action falls under the right of the citizen to seek legal guardianship before the State.
• The process is the means through which jurisdiction is exercised. This is a means of resolution of hetero-composive conflicts, in which the jurisdictional body (third) comes to settle the legal dispute between two procedural parties. On the contrary, the procedure is the set of judicial proceedings aimed at the effective and just realization of material law, we could say that the Procedure is the material way of the Process (in the explanations of law it is always put as a railway example, the Process would be the locomotive that to reach its end (application of the law) is moved through the pathways (procedure).

Civil process and criminal process

Procedural law as a set of norms that regulate the judicial activity of the State, can be distinguished by its differences that have determined regulating them with different own norms in certain elements such as the performance of the judge, the evidence, but this does not affect the unit of general procedural law.

Civil procedural law —in the words of Couture— «the branch of legal science that studies the nature, development and effectiveness of the set of legal relationships is called civil process».

On the other hand, criminal procedural law is the set of legal norms corresponding to internal public law that regulate any process of a criminal nature from its beginning to its end between the state and individuals. It has a fundamental character as a study of a fair and impartial administration of justice: the activity of the judges and the underlying law in the sentence. Its function is to investigate, identify and punish (if required) the behaviors that constitute crimes, evaluating the particular circumstances in each case and with the purpose of preserving social order. Criminal procedural law clearly seeks objectives concerning public order.

Stages of the criminal process

Preliminary stage (prior investigation)

• Complaint or complaint (here can apply the scourge)
• Research phase
• Appropriation

Pre-instruction

• Self of residence
• Preparatory statement
• Constitutional deadline

Instruction

• Offering and detachment of evidence

Judgment

• Conclusions of the Public Prosecutor ' s Office and of the Defence; hearings.

First instance

• Judgment

Second instance

Execution

Stages of non-criminal proceedings

Expository, postulatory or controversial Demands, answers, counterclaims (against demand)

Probatory or demonstrative

• Offering and detachment of evidence

Conclusive

• Delegates

First instance

Sentence

Second Instance

Procedural execution

Features

Procedural law is considered a branch of public law, unique, instrumental and autonomous.

It is public law, since it regulates the intervention, organization and competence of the State in the process when it intervenes through the Courts. It also has the nature of publicity because it is a right that does not directly regulate the interests of individuals but rather the general interests of the community.

It is a right of an instrumental nature, since it does not constitute an end in itself but serves as a means or instrument to enforce the substantive right through procedural claims. This instrumental nature (also called "formal" or "adjective") is what differentiates it from other branches of positive law; instrumentality that consists of being integrated by norms that regulate the jurisdictional process, a means through which it seeks to eliminate legal dissatisfaction and thus ensure the effectiveness of "material" or "substantive" rights. substantive law without the existence of procedural regulation, on the other hand, it does not make sense to conceive the idea of a law composed solely of procedural norms.

It is an autonomous branch because it is not conceptually subordinated to any area of law (civil, commercial, etc.). This autonomy is due to the fact that, although in the middle of the XIX century it was no more than an appendix to the substantial rights, today Today it is an autonomous branch, since according to the degree of development of the discipline, it has its own concepts (such as "due process", "jurisdiction" or "res judicata") and its own institutions, and it also has principles own, the so-called principles of procedural law.

Procedural law is also characterized by its unity: there is not a procedural right for each substantive right, but rather there is a single procedural right. Thanks to this unit, it is possible to apply to any process principles, institutions and concepts of procedural law to any type of process regardless of whether its object is linked to a specific substantive law (such as civil, criminal, labor law, etc.). This unity does not mean that, for example, the same procedures are followed in a process in which a divorce is processed as in another that is ordered to comply with a contract, but rather that what is established is the existence of some special regulations in certain matters, within the framework of a single procedural right.

Although some sector of the doctrine speaks of a «formal» characteristic of procedural law such as the regulation of the form of judicial activity of the State and the fulfillment of certain requirements or formalities for any judicial action to be appropriate, some of these norms in themselves do not constitute or are on the border of what is procedural law, being in some cases a constitutional or administrative law decision.

Subjects of the process

The subjects of the process are those who, in relation to a specific process, are in a procedural legal situation in accordance with the provisions of the procedural norm, and who by virtue of this, are empowered to impute the effects of an act to them procedural or actually carry out said acts. In the jurisdictional process, it involves subjects who are either empowered to be charged with the effects of the procedural acts that occur in the process, or are empowered to perform such acts.

For a subject to be considered a subject of the process and therefore to be able to carry out procedural acts or the effects of procedural acts can be imputed to him, he must possess certain capacities and legitimations depending on the subject in question. Capacity is an intrinsic aspect of the subject, a characteristic that he must possess. Legitimation is an extrinsic circumstance, a relationship of the subject with the object or with another subject.

Subjects can also be classified according to whether they are main (or necessary) subjects, or whether they are auxiliary (or eventual) subjects. The main subjects are those without whom it is not possible to have a jurisdictional process, while the auxiliaries may not be present.

Court

The court is an organ that legal norms grant it the power-duty to exercise jurisdiction, that is, to resolve disputes effectively as res judicata. The court is one of the main subjects of the process, and it can be the head court of an organ of the Judiciary exercising jurisdictional function (in short, the State), and the natural persons designated as arbitrators.

Key stakeholders

The main interested parties are the litigating parties in a specific process, and they are the plaintiff and the defendant. The party is the person or group of people who acts in the judicial process defending their claim against a current conflict submitted to the decision of a court of law.

Auxiliaries

Third parties

Although in the process the intervening parties are the ones who make the acts of proposition by virtue of the dispositive principle, it is admitted that third parties participate in the process (and therefore, people other than the original parties are incorporated into it), with the purpose of asserting the interests of this third party related to the purpose of the process, and that if a favorable ruling is handed down to one or the other party —plaintiff or defendant—, their rights could be affected. This finds its foundation in which it is convenient to extend the effects of res judicata to all those interested in the same legal relationship, and in a reason of procedural economy, concentrating in a single process what would be both, thus saving resources.

The participation of third parties must be distinguished depending on the type of process involved. In knowledge processes, when it intervenes in an exclusive way, it assumes the role of plaintiff before the other two original parties and the final sentence will affect it equally. But in the executive, precautionary and execution processes, the third party will be limited to asserting his right.

The intervention of the third party can be voluntary or provoked. The voluntary is the one that arises by the determination of the third party itself, while the provoked is the one in which the third party is summoned ex officio or at the request of a party. In the main (or exclusive) voluntary intervention, there is an accumulation of claims, since a new claim is filed there against the original plaintiff and defendant. In order to make this claim, it is required that the right of the third party is based on a direct, personal and legitimate interest, in addition to the legitimacy in the cause.

Voluntary intervention in a process can also be subclassified as adhesive (or coadjuvant), which can take two forms, one simple and another autonomous or joint litigation. Simple adhesive intervention occurs when a third party, by reason of having a legal interest related to that alleged by the original parties, joins the process to adhere to the success of the claim or the success of the opposition to it. Here, unlike the main one, the third party does not assume the quality of an autonomous party. Participation requirements are usually the same as for the main intervention.

With regard to the intervention caused by the third party, this occurs when a third party is summoned to participate in a pending process, either ex officio or at the request of a party. This summons can be in guarantee of the claim, summons of eviction, summons of the legitimate to intervene or the summons of the third suitor.

Sources of procedural law

The analysis of the sources of (procedural) law implies taking into account the study of comparative law of the different legal systems, since these sources can vary according to them. In the European continental law system, the law is weighted before other sources such as jurisprudence or custom (which are not usually considered formal sources), while in the common law system the latter two gain more force.

Sources can be formal, material, or historical. Thus, a formal source is one from which legal norms are created or originate, which are admitted as such by the positive law in question. Therefore, the sources of procedural law are the procedures through which procedural legal norms originate, either directly or indirectly (through a referral to another source), for the regulation of the jurisdictional process through general norms. and abstract, general and concrete, individual and abstract and individual and concrete.

Procedures for the establishment of constitutional rules of procedural law

For the creation of procedural rules in the Constitution, the procedures for reforming the Constitution are taken into account. These depend on each legal system of each country. These procedures, by creating procedural norms of constitutional rank, are norms of higher hierarchy in the legal system.

Among these, it is possible to distinguish those norms that state rules that apply to conduct regulated by all branches of positive law, and therefore, also to procedural law, such as those that establish the right to equality, freedom, etc. and those norms of procedural content that, although in many cases because they are not materially constitutional norms, have been included in the Constitution with the sole intention of preventing the legislator from straying from them. This makes sense in rigid constitutions more than in flexible constitutions. This does not prevent there being procedural rules that are materially and formally constitutional.

Procedures for the creation of legal procedural rules

Constitutional norms as such are general and abstract, and for this reason their complementation is established through the issuance of legal norms. Thus, therefore, it can be deduced that the procedure for the creation of rules of procedural law of legal rank is the procedure for the creation of laws.

Procedure for the establishment of international procedural rules

International treaties on procedural matters that regulate processes involving more than one State, whether they are public international law or private international law, constitute a source for domestic law as long as the State adheres to the treaty and ratify it, thus assimilating and taking force of law.

Establishment of procedural rules by doctrine

In certain cases related to the integration of procedural law, the conclusions of the doctrinal studies about what a general procedural norm should be like, as soon as this doctrine is one of the "most received" in certain cases, they themselves become rules of procedural law, and therefore, must be considered a formal source of procedural law. However, this does not include the conclusions reached by the doctrine on current procedural rules, so these conclusions do not constitute procedural rules.

In order for procedural norms to emerge from this means, the provisions of the Constitution must be taken into account, in the event that it has provided for any specific procedure for the creation of norms on the matter and on the integration of law.

Procedure for establishing customary procedural rules (customs)

It consists of the creation of general procedural norms through custom, that is, through the reiteration of a behavior determined by a society, with the conviction that this behavior is mandatory and that its non-compliance brings with it a sanction.. This source of procedural law gains strength and notoriety in those legal systems in which the common law governs, being, together with mandatory jurisprudence, a formal source of law. However, in European continental law legal systems, this source does not have such relevance, in many cases not being admitted as a formal source but material, or only being taken as a source in those cases in which the law expressly refers to it.

Procedure for establishing regulatory procedural rules

In procedural law, procedural rules of a regulatory nature (administrative law) are also usually dictated by the Supreme Court, the Executive Power, the Contentious-Administrative Tribunal or other bodies. In this case, it is not usually opposed to the legal reserve of the Constitution (in those that provide for it), provided that the law refers to these norms for the purpose of its own regulation. This regulation is admissible, therefore, when it is carried out by the highest court in its own jurisdiction.

Establishment of procedural rules by the court in the specific case

In certain cases, during judicial proceedings, it is permitted by law for the court to make decisions or resolutions for the current instance, regarding the rules that will govern during the specific process. These measures constitute a framework of certain discretion where the court itself can decide, for example, the adoption of judicial orders.

Establishment of procedural rules by key stakeholders in a process

In this hypothesis, it is possible to conceive the creation of norms by the main stakeholders in the individual process in which they intervene, that is, the autonomy of the will characteristic of private law. For example, the case in which by means of the agreement of the parties it is decided that the court to intervene in the process is an arbitrator.

Procedure for the establishment of general procedural rules by the courts (mandatory jurisdiction or precedents)

This source, like custom, is a formal source in Anglo-Saxon law legal systems, however, it is not in those legal systems based on European continental law. Mandatory jurisprudence consists of the issuance of a judicial resolution in a process that becomes a general, abstract and obligatory legal norm, acting as a precedent that from then on must be ruled according to it in analogous cases, for all courts.

Procedure for the establishment of procedural rules through general principles of law

In itself, this is not an ordinary source like the others, but rather constitutes a method of integration of law, of norms of maximum generality obtained by deduction of the legal system.

Procedural principles

The principles of law are general rules that, despite the fact that they have not been formally integrated into the legal system, are understood to be part of it, because they serve as the basis for other particular normative statements, or else they abstractly collect the content of a group of them. Thus, the principles of procedural law are general criteria from which the legislator will later specify in numerous specific provisions the regulation of the process and the behavior of its subjects. In this sense, Couture mentioned that "all law procedural law, any particular text that regulates a process step, is, first of all, the development of a procedural principle (...)».

The procedural principles are characterized by being presented in a complementary and bifrontal way. Complementarity means that the principles are not given in isolation, but are very often presented as a group. For example, the principle of equality in a contentious process derives others such as the principle of bilaterality or the principle of contradiction. Bifrontality refers to the fact that, in general, from a procedural principle its opposite can be inferred, that is, that the technical feasibility of its opposite exists, so much so that legislation can, for example, from the principle of scripturality to its opposite, the orality principle.

Historical evolution

The first people to manifest an organization to prosecute the behavior of individuals was Greece. Although the characteristics of that administration of justice are not known with certainty, we can assure that it was one of the first peoples to act in a pseudo-democracy. Within what is known of Ancient Greece, it can be known that its jurisdictional organization responded to two characteristics: the specialty (dividing conflicts into civil or criminal) and the collegiality of its bodies (each person who collaborated in resolving conflicts had a specialty, and the legal body was made up of a plural group of people). In Greece there was the heliastic court, which met to debate in broad daylight in the public square about the best way to guide the future of the community. Said group was made up of people elected by the people, of a good reputation and who had no debts with the treasury. They were in charge of attending to the crimes that were committed and deciding a sentence for the delinquents. We could say that procedural law arose in that period of history, although it was not until many years later that it was understood as such and the term was coined.

Procedural legal systems

The distinction of the different contemporary procedural systems is related to that of the great legal systems in force in the world. The procedural doctrine of the different countries have not agreed on an exhaustive list of procedural systems, there being those that give a restricted list and others that give a broader one. These systems respond to political, social, cultural and religious realities. different. For example, Couture classified systems as follows:

• Eastern systems. They are legal systems with a certain static form, preserving some traditional formulas. Some of these systems have modern civil procedure codes, but tradition, immemorial customs and even religious order may have an influence on civil order.
  These systems can be grouped into three categories: the Chinese system, Hindu and Muslim. As for the Chinese system, it does not necessarily group the Japanese system, due to the differences between both procedural systems.
• Soviet system. At the time Couture writes his work (decade of the 1950s) the Soviet Union was a reality. Today this classification would be ineffective as it no longer exists. This legal system was between Eastern and Western Roman systems and was immemorial and codified. The system was inspired by Lenin’s speech: “The Tribunal is one of the instruments of the power of the proletariat and the rural working class.” The procedural institutions of Soviet law were extremely similar to those of Western Roman law.
• Western procedural system. In the West, this category has been grouping—for centuries now—the Roman procedural law and the German procedural law. Throughout history, European peoples have had contact with one or another procedural system, resulting in some mergers. Later with the influence of Christianity, many of these legal systems tended to go to Roman law through the institutions of canon law. Couture then classifies several Western systems: the Spanish-American system, the Luso-Brazilian, the French and Italian, the Anglo-American, and the Austro-German.

Branches of procedural law

There are several different branches of procedural law. However, there are two important divisions:

• By the processes to which it applies:
  • administrative procedural law.
  • constitutional procedural law.
  • civil procedural law.
  • criminal procedure law.
  • labor procedural law.
  • international procedural law.
  • probative right.

In recent times, the importance of commercial law and company law, and the autonomy that the processes in which this type of law is applied (particularly the Bankruptcy or Bankruptcy) have taken, has made it begin to postulate the existence of an authentic commercial procedural law or bankruptcy procedural law.

• For the purpose of discipline:
  • Professional procedural law: this branch studies the organization and powers of the courts of law, and the status of those who make up these courts.
  • functional procedural law: this branch studies the procedures and actions that integrate them.

Organic procedural law (procedural statics)

Refers to the bodies that make up the administration of justice, their relationship with each other and with government bodies. The procedural law is said to be the branch that aims to see the legal processes as much as equal in themselves.

Functional procedural law (procedural dynamics)

Refers to the way in which the parties and the agencies that administer justice work, the procedures to be carried out in trials and the resources or actions established for it. That is, the conduct that both the parties and the body (jurisdictional power) must observe in the processing of matters submitted to their knowledge and decision.

The norms of functional procedural law in terms of their nature are of public order, of ius cogens, and as such must be applied by force. However, this should not be confused with the nature of the rules applicable to the substance of the matter that is being judged - which can be rules of dispositive or imperative law -. If the object of the process is governed by rules of a dispositive nature, this can be manifested in a series of institutions or procedural figures, in which the parties put an end to the process (or avoid it) precisely by exercising their power of disposition over the object of the same. Is about: Exceptionally, what happens with certain rights that the parties can exercise are rules of a private nature:

• The withdrawal of the complaint: the plaintiff decides not to continue the lawsuit, waiving to continue litigating the matter in the case and, eventually, in another procedure.
• The waiver: the plaintiff decides to waive his action before attempting it.
• The search: the respondent decides to comply with the plaintiff ' s claims by personally declaring it or by its legal or procedural representative (procurator) with sufficient powers to do so, if there are no other parties in demand and the public or third parties ' interests are not infringed, the judge puts an end to the process by issuing a judgement in accordance with the actor ' s claims and by condemning the payment of the costs if there was a predatory requirement.
• The transaction: ways to prevent or terminate a judicial process.
• The compromise: a way to end the trial by agreement of the parties, without the intervention of the judge, as in the case of conciliation.
• Conciliation: a way to end the trial, by agreement of the parties, within a judicial process. In this, the judge may have proposed bases for the settlement.
• The commitment: the parties designate a third party as an arbitrator to know the matter. This is a private dispute resolution mechanism that is outside the jurisdiction.
• The abandonment of the procedure or expiration of the instance: it occurs when a certain time passes without the parties doing nothing in a process, that is, the inactivity of the parties is required.
• The expiry of the action: the same occurs when the legal time set out in the codes of substance has elapsed for certain judicial actions to be brought in and the proceedings have not been initiated or have not been suspended or interrupted. For example, the expiry period of the action to claim damages is 2 (two) years, if during the course of that time the judicial action was not initiated or there were no interruptive or suspensive acts (e.g. compulsory mediation), the action prescribes that it was unable to claim the damages caused.

Interpretation and integration

Logical Gaps

Technical gaps

Scope of validity

The scope of validity of legal norms can be temporary, territorial, or personal. The territorial scope of validity, that is, the territory where the procedural rules will be applicable, is that provided for in the procedural law itself; although in general, in unitary states it will be throughout the territory, while in federal states, it will be throughout the territory of the federation if it is the federal procedural law, or it may only be within the territory of the State party if It deals with state procedural law. Added to this are the exceptional cases, such as the embassies of the countries and the ships and aircraft in which the law of the country of the flag will be applicable.

Procedural legal situations

Procedural legal situations are the position in which the different subjects of a process find themselves, compared to the legal norm that regulates the process. Procedural legal situations belong to procedural statics, to the study of the process regardless of its movement or development; while the procedural acts are the procedural dynamics. The Law, in order to organize the process, attributes to its actors certain powers and duties to regulate their performance. Procedural legal situations can be active, those that give their holder a position of supremacy; or passive, those that leave their owner in a situation of subjection or subordination.

Facts and procedural acts

The procedural acts are those emanating from the parties, from the agents of the jurisdiction or even from third parties linked to the process, capable of creating, modifying or extinguishing procedural effects.

Procedural facts are life events that project their effects on the process.

Procedural functions