Principles and Foundations of Civil Procedure

Constitutional Role of Civil Justice

The state acts as the executioner of the law of nature, following the rule of decretum divi marci by utilizing remedies provided by the state. This notion of the state's duty to provide justice is expressed in Article 8 of the UDHR: everyone has the right to an effective remedy. Providing citizens with an effective justice system allows them to enjoy their rights, ensuring such a system is fair, impartial, and efficient. These specific provisions are further complemented by more general ones. Locke suggests what happens when a government fails. The right of action is a consequence of substantive rights; Savigny suggests that legal protection shall be granted, with the right of action provided by public law.

Historical Perspective

• Original approach: Discouraged any personal contact between the adjudicating body and the parties, with attorneys controlling the conduct of the case.
• Reform: Abolished private jurisdiction.
• Napoleonic Codes: A return to the secrecy of test proof-taking, while creating an expansion of oral elements in procedure. The aim was to create immediacy, free and critical evaluation of evidence, and concentration of the case into one hearing.

The unfolding of litigation is divided into:

1. Pre-empt stages, which produce an excess fragmentation in unfolding litigation.
2. Preparation of the case for trial, concluded by a single judge.
3. After the presentation of a written complaint, there is a stage of preparation for an oral hearing.

Types of Relief

• Damages: Refers to compensation.
• Compensation: Every time there is negligence in the conduct of a party in contract liability, one is entitled to compensation (ubi ius ibi remedium).
• Modification of legal relations (Azione costitutiva): Avoidance of contract.
• Declaratory acts: Nullity; provides answers to more basic questions at the beginning of the trial.

Fundamental Principles of Civil Procedure

1. Adversarial and Inquisitorial Principles

These principles dictate how evidence is collected, either through the contribution of the parties or court investigation.

• Adversarial: Based on orality, public hearings, concentration, equality of parties, contribution by parties to take evidence, and legality.
• Inquisitorial: Secrecy of procedure, written form, no equality between parties, and the court can take evidence ex officio.

These are closely related to the principle of free disposition, though not absolute in cases involving family, capacity, or public interest/minors, where the court is entitled to take as much ex officio evidence as necessary.

2. Hearing of Both Parties (Contradictory Principle)

Parties have the right to allege relevant facts and submit means of proof. In the Spanish legal system, this is not just a procedural principle but a constitutional right (part of the right of defence, Art. 24); violation of any legal principle can lead to invalidity.

3. Principle of Equal Treatment

Ensures the same rights, opportunities, and procedural obligations to protect interests in both declaratory and executive proceedings.

4. Orality

Requires that court decisions be based only on oral proceedings.

5. Publicity

This principle, combined with orality (120 SC), is subject to procedural law exceptions (138 LEC) necessary for the protection of public order.

6. Immediacy

Per 120.2 SC, proceedings must be oral; the same judge who examines the evidence must hear the allegations and final conclusions.

7. Concentration

All oral proceedings should be concentrated in one single session.

8. Documentation

Requires the judge to prepare a written report through mediacy, preclusion, and secrecy.