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Myths and dogmas in civil proceedings

formal res judicata, res judicata

Some critics around the Cas . N º 3132-2008-Puno, issued by the Civil Chamber Transitional (the sentence is in the newsletter of Cassation El Peruano February 1, 2010). This document will be published in the Law Review editorial of Peru, No. 111.

The Myth of the "distinction" between formal and material TRIED EVERYTHING

Procedural Law today is still a prisoner of certain theories and classifications at the time were proposed, endorsed and accepted, until they came to be assumed, after many years, without a trace uncritical. In these situations, children can be referred myths almost divine in origin (either product of a great lawyer or an ideology), their commission over time and, consequently, the full acceptance by students of the years or centuries later. This is what happens, for example, with the still existing difference between formal jeopardy and res judicata.

few months ago, as part of a process of annulment of fraudulent res judicata ( rectius: civil fraud judicial review) Transitional Civil Chamber of Supreme Court decided a case using the distinction between formal and material jeopardy. Without prejudice to the other reasons for dismissing the appeal, the Board concluded that the contested decision to demand (an order that covers a plea of \u200b\u200blimitation) "formal res judicata therefore does not amount to a final decision because the applicant can reframe latent demand, being susceptible of contradiction and possible changes in other process, and this because it has not extinguished the right, but only action. " In other words can not demand the annulment of a final order which upheld a plea of \u200b\u200blimitation because it only takes formal jeopardy and, therefore, the applicant may NCJF process begins again the process he lost.

This statement is the clearest example of how dogma can be taken to its ultimate consequences. As is known, the formulation of the distinction is this: a formal statement when it becomes res judicata can not be attacked in the process, exhaustion of remedies provided under this (irrecurribilidad) on the contrary, acquire res judicata when I have achieved definitive, that is, when you get the unchangeable in the rule of law in the sentence, is in the process where it had issued as to any other (court, state court no, no state, etc..) with the exception of the civilian review process (the genus to which belongs the NCJF ).

With the things, we see that the "true" res judicata, ie, the immutability which is the source of prestige and existence of jurisdiction is res judicata. What formal jeopardy? Then it becomes a "double jeopardy" limited, inadequate, severed, only capable of providing stability intraproceso perspective. What good is a "double jeopardy" that only involves a depletion of recursive challenge, if that matters is the finality of the legal status enshrined in the statement? Therefore, this figure is no different from the effects, which is inherent in the final (let us call it, without adjectives). But this does not imply any limitation period, but reflects the maximum protection that the law will Presented to an act of power. So it is correct that res judicata is a category closer to politics than the legal.

But the problem is not that the Board Transitional Civil unaware of the futility of the distinction between formal and material jeopardy. That's almost a story when what led to his reasoning was to give a totally ineffective procedural protection. According to this Court, the demand for NCJF is inadmissible because the applicant can start the process again lost by prescription and win. But hey, what happens if the prescription is clear again? According to the reasoning of the Board could re-start the process because the resolution that ended it only takes formal res judicata, and so the vicious circle would continue. Is this the answer that the highest organ of administration of justice should be given?

It is a great mistake to say that the firm imposed on an order granting an exception of prescription only radiate in the same process that issued (this is the premise of the thing formal trial.) Leaving aside the fact that a decision on the requirement implies, in fact, address the merits, that decision becomes res judicata to the point of allowing the deduction of a double jeopardy if returned to start the same process. Then the poor litigant, heeding the advice of Supreme Court - forfeit the process again, but this time not by prescription, but by res judicata. And unless we now, in honor of the legal myths, you want to distinguish a formal jeopardy and a plea of \u200b\u200bres judicata, we conclude that this time, the Civil Chamber resolvió times.