In July this year, the editorial Law Gazette will launch a new subscription to Dialogue with the Court which, among many useful materials, is a collection entitled "Library of evidence." One of the books constituting the library is on civil law and civil procedure, and the development of the issues is, I think, quite innovative: it is focusing situations of law (such as adverse possession or divorce) from the problem offered by probanza in a judicial proceeding. I ordered the presentation of this book, and these were my thoughts.
"One of the insistent demands of contemporary civil procedure is that I can not think of himself as end, but in the thing which has been wrought: the effective realization of legal norms material. This is based on the advent of State Constitutional Law and, more specifically, a powerful phenomenon that revolutionized the way of understanding the procedural law, known that with the successful completion of the process instrumentality (understood as a procedural system) .
methodological separation of the planes of substantive and procedural law that occurred in the stage of the process (opened in Germany in the nineteenth century and reinforced by Chiovenda systematic school) was so great that the science of the process fell in absolute indolence meet the needs of the substantive law to be clamoring for effectively supervised, and everything to achieve its long-awaited legal autonomy as a discipline. But that is history. At present, there is no way to think about the process behind the great influence of the material right in your own settings and goals to achieve as a means of social pacification. Thus, in the words of Cândido Denmark, is a relativization binomial-process rights.
is why its institutions, categories and their operation, from setting the object in dispute, to disability and challenge, to the performance of the decisions (in short, the whole procedure), are conditioned to be constructed and implemented from a teleological perspective, so that the process becomes an ideal mechanism to resolve the crisis of law material. And, as is evident, an aspect that can not be ignored is the issue of probanza of the facts alleged by the parties, that is nothing but an uphill battle to assert their rights.
Significantly, the conception of the process as seen through the prism of the right material limited to regulatory benefits (creation of appropriate legislation by the legislature) or factual benefits (its ideal application by the court) it should also be a methodological model in the work of the jurist. Indeed, follow doing process from conceptual castles lack the perspective and instrumentality are futile attempts, a priori, fruitless. It should consider the process and the right-of-legal planes as two distinct and independent elements, yet inseparable and interdependent, connected by a link teleological.
This thought is present in all the works that make up the collective work that we present. The authors involved (these doctors Günther Beltrán and Jorge Gonzales Barron Pacheco, Marianella doctors and Ledesma Narvaez, Maria Elena Guerra, and Emilia Bustamante Cerrón Oyague) have shown their deep concern at the way various situations that occur in the tangible law are ventilated in the court process, from the perspective of the right concrete evidence.
It is no stranger to the test judicial causes great hardships in the day to day, both for judges and the parties. Certainly, it escapes the relevant constitutional right to prove as a manifestation of the right to a fair trial and, of course, the procedural rules that regulate the matter. Here the complexities come into play when testing the facts and, in the case of-court conviction obtained the evidence that are submitted to it, which is closely related to the difficulties in the exercise of rights materials of the parties in the process. Therefore, addressing these particular difficulties for the student of law can not mean anything a contribution to find a light at the end of the tunnel that is this world beyond the manuals and treaties, but inherent in the true experience of procedural phenomenon.
The themes from this concern by the authors mentioned are the adverse possession, the invalidity of the act, eviction, medical liability and divorce, respectively . In his analysis, as well as his deep knowledge on the subject, making use of a vast body of precedent and, of course, his own personal experience, allowing them to provide an overview illustration major trouble spots of the items developed, always from the perspective of the complex rules of evidence.
We are confident that this work will be of great use to the reader, who will find not only a clear statement on how to test, how contraprobar or prevented the problems that may arise in the different processes, but also an effort designed to reconcile the process with the protection of substantive rights. "
0 comments:
Post a Comment