Art 231 lec
Article 11.3 of the LOPJ states: «The Courts and Tribunals, in accordance with the principle of effective protection enshrined in Article 24 of the Constitution, must always rule on the claims presented to them and may only reject them on formal grounds when the defect cannot be remedied or is not remedied by the procedure established by law».
Or in other words: does the statement in art. 231 LEC that «the court shall ensure that the procedural defects incurred by the parties can be remedied…» constitute a strict obligation for the court and therefore, is there a correlative right of the parties to demand it?
a) that «the judicial body is obliged to weigh the real entity of the defect detected, in relation to the sanction of closing the process and the access to justice that may derive from it, and also to allow as far as possible the correction of the defect detected» (1) (emphasis added)
c) that the merely procedural judicial decision or of inadmissibility due to the lack of a procedural requirement, is constitutional «as long as the injured party has had the possibility of correcting this requirement»(3).
civil procedure law pdf
The right of all to an effective judicial protection, expressed in the first paragraph of Article 24 of the Constitution, coincides with the desire and the social need for a new civil Justice, characterized precisely by its effectiveness.
Effective civil justice means, as consubstantial to the concept of Justice, full procedural guarantees. But it must mean, at the same time, a more prompt judicial response, much closer in time to the demands for protection, and with greater capacity for real transformation of things. It means, therefore, a set of instruments aimed at achieving a shortening of the time necessary for a definitive determination of what is legal in specific cases, i.e., judgments less distant from the beginning of the process, more affordable and effective precautionary measures, less burdensome enforcement for those who need to promote it and with more chances of success in the actual satisfaction of rights and legitimate interests.
The effectiveness of the civil judicial protection must involve a rapprochement between Justice and the litigant, which does not consist in improving the image of Justice, to make it seem more accessible, but in structuring procedurally the jurisdictional work in such a way that each case has to be better followed and known by the court, both in its initial approach and for the eventual need to purge the existence of obstacles and lack of procedural presuppositions -nothing more ineffective than a trial with an acquittal of the instance-, as well as in the determination of what is truly controversial and in the practice and evaluation of the evidence, with orality, publicity and immediacy. Thus, the reality of the process will dissolve the image of a distant Justice, apparently located at the end of excessive and lengthy procedures, in which it is difficult to perceive the interest and effort of the Courts and Tribunals and of those who are part of them.
law of civil procedure
Article 11.3 of the LOPJ states: «The Courts and Tribunals, in accordance with the principle of effective protection enshrined in Article 24 of the Constitution, must always rule on the claims submitted to them and may only reject them on formal grounds when the defect cannot be remedied or is not remedied by the procedure established by law».
Article 5. Representation, point 6. The lack or insufficient accreditation of the representation shall not prevent the act in question from being deemed to have been carried out, provided that the representation is provided or the defect is remedied within a period of ten days to be granted for this purpose by the administrative body, or within a longer period when the circumstances of the case so require.
Provided that these are not selective or competitive procedures, this term may be prudentially extended, up to five days, at the request of the interested party or at the initiative of the body, when the provision of the required documents presents special difficulties.
lec legal news
In doctrinal headquarters, what has been written has neither been much nor varied, nor, sometimes, what has been written has been anointed by the conclusive success; so I do not renounce to even approach that field.
For the time being, it can be seen that the brand new «reports» – self-integrators, as I say, of the aforementioned «expert opinion» in the current regulation of the LEC – have quite acceptable contours and are quite reliable. If, at times, the LEC reveals its neediness (because there is no «ad hoc» rule), at others, on the contrary, it appears to be overprovided (the LEC has more than one rule for a given case).
In any case, whatever the treatment to which both the «reports prepared by experts appointed by the parties» and the «reports prepared by judicially appointed experts» are subjected, it will always be up to the court to decide which is the valid rule applicable to the matter at stake.