Post by soyeb19 on Feb 18, 2024 9:28:40 GMT
Article 469 of the Civil Procedure Law indicated the reasons why it is appropriate to file the extraordinary appeal for procedural infringement and the requirements for its admissibility. The extraordinary appeal for procedural violation could be based only on the following reasons: 1) violation of the rules on jurisdiction and objective or functional competence; 2) violation of the procedural rules regulating the sentence; 3) violation of the legal norms that govern the acts and guarantees of the process when the violation leads to nullity as established by law or when said violation could have caused defenselessness; and 4) violation, in civil proceedings, of fundamental rights recognized in article 24 of the Constitution. The extraordinary appeal for procedural infraction was only appropriate if the procedural infraction or violation of article 24 of the Constitution had been reported in the corresponding instance, and if in the first instance the complaint had been reiterated in the second instance. Furthermore, if the violation of a fundamental right has generated a rectifiable fault or defect, it is necessary to have requested its correction in the relevant instance or instances.
However, this system of extraordinary appeals against second-instance sentences designed by the Civil Procedure Law never came into full operation. The reason is that, to Whatsapp Database attribute to the Civil and Criminal Chambers of the Superior Courts of Justice the knowledge of extraordinary appeals for procedural infringement, a specific rule of functional jurisdiction was required , which had to be included in the Organic Law of the Judiciary. and that implied a reform.
Durig the parliamentary process of the Civil Procedure Law, a reform project of the Organic Law of the Judiciary was accompanied to, among other things, include extraordinary remedies for procedural infringement within the scope of jurisdiction of the Superior Courts of Justice. However, the necessary majority was not obtained in Congress to approve the reform of the Organic Law of the Judiciary , which forced the provision of a transitional regime to apply it until the necessary reform of the Organic Law of the Judiciary was approved. To date, the Organic Law of the Judiciary has been reformed on multiple occasions since January 2000, but none of the reforms have attributed to the Superior Courts of Justice the functional jurisdiction to hear extraordinary appeals for procedural violations. Consequently, the transitional regime is still the one that applies today.
This transitional regime has remained included in the Sixteenth Final Provision of the Civil Procedure Law and represented the reality of extraordinary resources in our civil judicial system. The most relevant element of the current situation is that both appeals, cassation and extraordinary appeals for procedural infringement, existed, but, despite the legislator's initial intention, they were not alternatives, but could be used together . Furthermore, if the litigants presented different appeals, they were accumulated. Consequently, both appeals were processed together and were resolved by the same court, which implies that there was no differentiation in the procedural channels .
Regardless of the reason, the Civil Procedure Law requires a requirement for the admissibility of the appeal: if the violation could have been raised, it must have been raised in the first or second instance, as appropriate, and, if it can be cured, its correction must have been requested. .
By virtue of the entry into force of Royal Decree-Law 5/2023, there has been a radical change in the legal regime of extraordinary resources in the civil jurisdictional order. Thus, in the current model of extraordinary appeals in civil matters, the cassation appeal covers both complaints of substantive and procedural infractions , thus eliminating the previous distinction between the two with a tacit repeal. This has been a significant change, since previous reforms had established different access channels for each type of infringement, which was not operational in the development of current Private Law.
When raising the content of Royal Decree-Law 5/2023, an increase in litigation and greater difficulty in clearly demarcating the substantive rules from their procedural implications in civil matters had also been observed , which can be attributed to the poor legislative technique that It is applied in many of the new laws that are approved by the Cortes Generales. This fact has generated difficulties both for the parties when correctly constructing the resources and for the Civil Chamber of the Supreme Court in its function of unifying doctrine on matters of social relevance.
To address these problems, it has been considered necessary to attribute to the appeal the treatment that corresponds to its nature as an extraordinary appeal aimed at controlling the correct interpretation and application of the applicable rules. To do this, the distinction between substantive norms and procedural norms is ignored.
However, this system of extraordinary appeals against second-instance sentences designed by the Civil Procedure Law never came into full operation. The reason is that, to Whatsapp Database attribute to the Civil and Criminal Chambers of the Superior Courts of Justice the knowledge of extraordinary appeals for procedural infringement, a specific rule of functional jurisdiction was required , which had to be included in the Organic Law of the Judiciary. and that implied a reform.
Durig the parliamentary process of the Civil Procedure Law, a reform project of the Organic Law of the Judiciary was accompanied to, among other things, include extraordinary remedies for procedural infringement within the scope of jurisdiction of the Superior Courts of Justice. However, the necessary majority was not obtained in Congress to approve the reform of the Organic Law of the Judiciary , which forced the provision of a transitional regime to apply it until the necessary reform of the Organic Law of the Judiciary was approved. To date, the Organic Law of the Judiciary has been reformed on multiple occasions since January 2000, but none of the reforms have attributed to the Superior Courts of Justice the functional jurisdiction to hear extraordinary appeals for procedural violations. Consequently, the transitional regime is still the one that applies today.
This transitional regime has remained included in the Sixteenth Final Provision of the Civil Procedure Law and represented the reality of extraordinary resources in our civil judicial system. The most relevant element of the current situation is that both appeals, cassation and extraordinary appeals for procedural infringement, existed, but, despite the legislator's initial intention, they were not alternatives, but could be used together . Furthermore, if the litigants presented different appeals, they were accumulated. Consequently, both appeals were processed together and were resolved by the same court, which implies that there was no differentiation in the procedural channels .
Regardless of the reason, the Civil Procedure Law requires a requirement for the admissibility of the appeal: if the violation could have been raised, it must have been raised in the first or second instance, as appropriate, and, if it can be cured, its correction must have been requested. .
By virtue of the entry into force of Royal Decree-Law 5/2023, there has been a radical change in the legal regime of extraordinary resources in the civil jurisdictional order. Thus, in the current model of extraordinary appeals in civil matters, the cassation appeal covers both complaints of substantive and procedural infractions , thus eliminating the previous distinction between the two with a tacit repeal. This has been a significant change, since previous reforms had established different access channels for each type of infringement, which was not operational in the development of current Private Law.
When raising the content of Royal Decree-Law 5/2023, an increase in litigation and greater difficulty in clearly demarcating the substantive rules from their procedural implications in civil matters had also been observed , which can be attributed to the poor legislative technique that It is applied in many of the new laws that are approved by the Cortes Generales. This fact has generated difficulties both for the parties when correctly constructing the resources and for the Civil Chamber of the Supreme Court in its function of unifying doctrine on matters of social relevance.
To address these problems, it has been considered necessary to attribute to the appeal the treatment that corresponds to its nature as an extraordinary appeal aimed at controlling the correct interpretation and application of the applicable rules. To do this, the distinction between substantive norms and procedural norms is ignored.