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Sin embargo, la dispensa de prueba no excluye que el juez pueda buscar en fuentes externas por ejemplo los diarios los medios de conocimiento. El acreedor quirografario Por ser quirografario, el acreedor no puede impedir o coartar la libertad del deudor en el manejo de su patrimonio. Hay, pues, una libertad del deudor en administrar y disponer de sus bienes, y el acreedor no puede coartar esta libertad. El proceso es esencialmente formal: cuando s No hay proceso sin formas procesales y el debido acatamiento de esas "formas" es, precisamente, lo que debe garantizarse con el principio del debido proceso.
No hay justicia si desconoce el Derecho objetivo vigente, pero el Derecho objetivo carece de sentido si no es esencialmente justo. La Sala Co Delgado Ocando. Jump to. Sections of this page. Accessibility Help. Email or Phone Password Forgot account? Log In. Forgot account? Not Now. Visitor Posts. Jose Manuel Anaya. Hola, buenos dias. Tendras algunos libros que me puedas compartir de See More. Abg Hernan Silva. Information about Page Insights Data. PROCESAL LAW For Devis Echandia the procedural law can be defined as the one that regulates the process and legal relations that are born and deducted from it whether civil, criminal, litigation-administrative, such as procedures for trade marks or patents or water concessions I love you so much Procedural law means any legal rule in the form of law that are aimed at regulating any aspect of the judicial proceedings that fall on matters provided for in the Constitutional Text.
PROCESAL RIGHT Procedural law can be defined as the branch of law that studies the set of rules and principles governing the judicial function of the State in all its aspects and which therefore lay down the procedure to be followed in order to obtain the action of positive law in the specific cases. According to Eduardo Couture, a process means all legal relations between the parties, officials of the jurisdiction and the auxiliaries of the law, regulated by law and aimed at the resolution of a conflict that may be resolved by a decision passed in authority of judged thing.
The generality of these facts is evident: but it is also another character of the notorious fact, that is, its essential objectivity, which excludes judgment. A fact whose existence is established through a trial cannot be considered notorious: for example the subjective condition of a person.
This objectivity is solved in its undisputed, and leads to the rule that not only the notorious dispensation of proof, but also does not admit the opposite evidence. However, the evidence waiver does not preclude the judge from searching external sources e. From the notorious fact must be distinguished: 1 the so-called notoriety of facts that is a simplification of proof, within the limits of ordinary evidence; 2 the maximum or rules of experiences, which are criteria for valuation of the facts found, and no longer means of finding the facts.
The end between the notorious and the non-notorious can be raised even further incisively in the following examples, extracted from jurisprudence. If Titio has been the victim of a theft and claims the payment of insurance for the damage suffered, but the contrary excludes claims caused during popular tumult, the fact of the tumult may well be notorious to the judge and therefore exclude all evidence in contrary, while it is not notorious that this theft has occurred as a result of the tumult, and as such must be tested.
If curator's revocation action is proposed, the fact of a bank's economic imbalance can be notorious, and as such not admitting proof to the contrary, while the knowledge of the defendant's imbalance is not known. This is, that any claim, if not related to a constituent, impedive or extinguive act of law, must be proven. A single exception makes the law, when it says that the judge can, without the need for proof, invoke as the basis of the decision "the notions of fact covered by common experience" nom egent probatione.
From the same formula that the law uses to qualify the notorious, the essential limit within which the expensation of the test works. In other words, it should be not facts constituting a relationship legal facts but simple facts, generically relevant to the judgment on the fact.
Common experience is precisely based on this generality; and this implies why the same fact can already be of common experience, and therefore not need proof, or constituent and therefore need proof: example, the death of an illustrious character regarding his succession.
This truth has been mistakenly discussed when it has been said that in the example, I will give you a hundred when the gerra concludes, the "end of the gerra" fact is constituent: it is actually determinant of expiration, no more or less than any other date of the calendar, not constituent of the obligation, and as such may be known to the judge as notorious, without the need for proof apart, of course, the hypothesis that the date of the end of the war is legally established: Decree Law, 8 April , n.
Article of the Venezuelan Civil Code states: " Limitation is a means of acquiring a right or free yourself from an obligation, for time and under other conditions determined by law. As you see, this legal text gives unitary treatment to purchasing prescription uscappion and extinguive prescription which has been objected by doctrine; which points out that, despite the existence of many common elements, there are notable differences between the two of them in terms of their respective disciplines.
The expiration Latin: expiration: which has fallen is the loss of an active subjective situation right in the lato sense that is verified by failure to comply with a certain conduct imposed by a rule for the preservation of such a situation when it is already enjoyed of her or, if not, if not, for the acquisition of such a situation. The assumption of pauliana action is that of a debtor who, in order to avoid enforcement on its assets, disposes of all or part of them to a third party, in order to defraud the creditor.
The chirographer creditor has an undetermined general right, especially the debtor's estate. The debtor's estate as a whole is the right of its credence. As a chirographer, the creditor cannot prevent or restrict the debtor's freedom in the management of its assets. There is therefore a freedom of the debtor to manage and dispose of its assets, and the creditor cannot restrict this freedom. But, too, there is a protected interest: the creditor's interest in not being disappointed by the debtor's abusive handles of its assets.
Therefore, the law reconciles both interests by granting the creditor, in certain cases and under very precise conditions, an action, in order to revoke the debtor's fraudulent acts. In this topic is that the principle of favor actiomem or the pro actiomen rule is inserted, whose full understanding can be an extraordinary tool to do justice, but also a source of the greatest abuse of law and legal certainty. There is, however, a weighting of rationality and relevance as a scales for measuring specific conflicts, focusing on: Procedural rules may suffer from a different interpretation and application where necessary to ensure the enjoyment and exercise of constitutional rights, in this regard, by the instrumental service of the process to justice, the interpretation and application of procedural rules It is not a question of applying an interpretation of procedural rules against the express forecasts of positive law, as this would go against the justice system itself.
The idea is that of those rules that may suffer from a different interpretation under positive law, then the one that best develops constitutional rights and does not mean a breach of the fundamental rights of others. This is not the scenario to analyze the issue of justice and the process, but it should be established that the current constitutional text advocates this axiological content of the process by applying, in article , that " the process constitutes a tool for the Realization of justice ", which means the struggle between form and substance, between procedural rules and the justitial axiological end, between positivity with its values of legal certainty and the duty to be as aspiration.
The problem is, nowadays, much more complex. The process is essentially formal: when talking about due process, it continues to make reference to the way and times in which the acts of the process should be carried out. There is no process without procedural forms and due compliance with these "forms" is precisely what must be guaranteed with the principle of due process.
On the other hand, procedural forms must fulfill a necessary axiological purpose: the value of justice that implies the idea of effectiveness and effectiveness of law. There is no justice if you do not know the objective law in force, but objective law is meaningless if it is not essentially fair.
As justice is an ideal entity is, if you want, metaphysical, the task to determine what is just itself is sometimes superior to our rational capabilities. Perhaps SHEILER is right when he advocates the irrational nature of values and poking into the emotional institution an appropriate way to their training, however, understanding this intuitive training becomes extremely complex for many teachers in philosophy of law.
Delgado Ocando See More. THE PRO ACTIONAL BEGINNING The pro actione principle is that rule of the science of the process through which procedural rules regulate the right to activate an interpretation and application in the way that best develops its essential core, or as a mechanism of equity to minimize the rigors of the formal procedural law regarding admissibility, or to privileged decisions on the merits for effective judicial protection.
The Constitutional Chamber of the Supreme Court of Justice established that the pro actione principle implies that conditions of access to justice must be understood as sieves that debug the process.
Hence, the function exercised by procedural forms and requirements is in the line of advancing the claim on rational paths and not unjustifiably impossible to exercise the action. Skinny Ocando Translated. Unnominated orders may follow the circumstances that the judge may be appreciated by the creation of the guarantee or sufficient security, because they are measures aimed at preventing them from continuing to harm.
The nominated measures require for their origin the " fumus bonis iuris " and " periculum in mora ", but unnominated orders also require the danger of continuing injury to the right of those who request it " periculum in damii ". Article of the Code of Civil Procedure sets out the nominated and unnominated measures, the latter in the only one apart from this article, which expressly states: " The judge may also agree on any supplementary provisions to ensure the effectiveness and result of the measure he has decreed ".
Unnominated interim measures are those measures inherent in the function of judging and executing the court that the judge can grant in the course of the contradictory to protect one of the parties against injury to which may be exposed by the prolongation of the proceedings.
In addition to the requirements already studied Periculum in mora and the Fumus bonis iuris for the conditions under which unnominated measures should be decreed we find: The Imminent Danger of Damian Periculum in Damii.
In the procedural Code, the requirement is established in the first paragraph of article , according to which in addition to " strictly " with the requirements of article , it is established as a condition " when it has founded fear that a the parties may cause serious injury or difficult reparation to the right of the other ".
Teoria General Del Proceso: Aplicable A Toda Clase De Procesos (Spanish Edition)
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Teoría general del proceso aplicable a toda clase de procesos