LESSON 5 Flashcards
Process
Proceso, it is used EXCLUSIVELY to refer to the “jurisdictional process.” When this word is used in the legal field, it is used to refer to the succession of acts regulated by the law in order to obtain a specific result/answer from the judge. It comes from the latin word “juris-dictio.”
Procedure
Proceeding, Procedimiento. This word is NOT exclusive to the legal field, but we use it in it frequently (tax procedure, administrative procedure, etc.) We use it to refer to the external form of the act that is regulated by law.
Differences between “Process” and “Procedure”
When we use the word “procedure”, we refer fundamentally to the external form of the act, while “process” is used to refer to other questions.
For example: the deadline to file a claim and the form of this is a “procedural problem”, and the resolution (res iudicata) of this procedure would be the “process” or, more specifically, the effects of the jurisdictional process.
Judgment
Juicio , in Spanish this word refers to two things:
- The intelectual act that’s executed by a judge when they are about to give the final ruling of a case, equivalent to a resolution (el juicio). In English this would be “judgment.”
- When the judge hears the parties in a Court, evidence can also be introduced, and finally he makes a decision (juicio, audiencia, vista, juicio oral). This would be the equivalent to “trial” or “hearing” in English.
Legal nature of the process
The problem with the definitions that we had of the word “process” until now was that scholars tried to define this concept with “private law” concepts, and a “process” is “public law.”
Private law’s conception of the legal nature of process (old conception)
We used the concepts of “contract” and “quasi-contract”:
- contract -> the process was a contract between parties that agreed to submit their differences before a judge, who would give a resolution that the had to abide by.
The problem with this concept was that it did not take into account what would happen if one of the parties did NOT agree to submit to a judge. This is when we used the concept of quasi-contract:
- quasi-contract -> the process is a quasi-contract, where the agreement of both of the parties is NOT necessary to go before a judge and submit their differences.
19th Century definition of the legal nature of concept: public law
Thanks to German Jurists of the 19th Century, the legal nature of contract was now explained through the concepts of “relación jurídica” and “situación jurídica.”
Thanks to this, it was now easy to distinguish between the “process” (regulated by procedural law) and the “object of the process” (regulated by substantive law).
Types of processes
We have different types of processes, depending on:
- The type of action exercised.
- The jurisdiction that exercises it.
Types of process according to the type of action exercised
- “Declaratory Judgment” (Acciones meramente declarativas): meaning issuing a court order stating the parties’ rights under a contract or statute.
- “Acciones condenatorias”: de condena, the plaintiff
asks the judge to order the defendant to pay a
certain amount of money, to order the defendant to
do something or to prevent the defendant from
doing something. - “Acciones ejecutivas”: when the plaintiff goes before
a judge in order to declare his right to modify a right.
Most of the times, a judge is NOT necessary in order
to change a right, but in certain occasions this
judicial intervention is required by law.
- “Acciones condenatorias”: de condena, the plaintiff
- “Actions for the Enforcement of Judgments”: when the judge decides AGAINST the defendant, and the defendant does NOT comply voluntarily, it will be necessary to file a claim for the enforcement of the judgment.
- “Protective actions or measures”: acciones cautelares, they can be requested in order to make sure that the future judgment shall be effective and enforceable.
Types of process according to the jurisdiction that exercises it
- Civil: the regulations are found in the “Civil Procedure Act, 2000,” and we can find two different types of proceedings:
- “Ordinary proceedings”: used when the value of the
claim is over 6000 euros and in cases foreseen in art.
249 LEC. - “Oral proceedings”: used when the value of the claim
is UP TO 6000 euros and in cases foreseen in art. 250
LEC.
- “Ordinary proceedings”: used when the value of the
- Criminal: the regulations are found in the “Criminal Procedure Act, 1882,” and we can find different types of proceedings:
- “Ordinary proceedings”: used with serious criminal
offences. - “Proceso abreviado”: used with less serious criminal
offences. - “Juicio de Faltas”: this is the only criminal proceeding
that is NOT divided into 2 phases. - “Jury trial.”
- “Ordinary proceedings”: used with serious criminal
- Contentious-administrative: the regulations are found in the “Contentious-administrative Procedure Act, 1998,” and we can find two types of proceedings:
- “Ordinary proceedings”: the proceeding is in writing.
- “Procedimiento Abreviado”: the proceeding is oral.
- Social: the regulations are found in the “Social Procedure Act, 2011,” and they have a simple structure:
- The plaintiff files the claim and both parties are
summoned to the hearing.
- The plaintiff files the claim and both parties are
Other Institutions for Conflict Resolution
The law will sometimes allow for a third party to solve the conflicts. This occurs when there is NO public interest, only private rights involved.
There are two types:
- self-composition.
- hetero-composition.
Self-composition
The parties in conflict are the ones that reach a resolution. The third party will only facilitate the agreement.
- Conciliation.
- Mediation.
- Transaction.
Hetero-composition
The parties in conflict go before a third party that will resolve their problem. The most common one is arbitration, where the third party will give a “laudo” that the parties will abide to voluntarily.
The reason to use third-party resolution
In order to have fewer cases in the jurisdictional organization.
What is the objective of trying to explain the legal nature of the process
To know which norms should be applied when the law does NOT regulate something in particular.
