For Enrique M. Falcon
Published in: Journal of Procedural Law 2007-1, Rubinzal Culzoni, Santa Fe, 2007
1. Intoduction. On several occasions I have pointed out that the General Systems Theory is explanatory of the Litigation Process in general and in particular advantage over other theories as the most common example is that of the legal relationship ( ). The system of procedural nullity is a very suitable to demonstrate this assertion.
2. The system and process. recall that a system is a set of interlinked elements intended to solve a conflict, in our case law. Hence, based on a target and having the media of the system under (Buildings and elements, competent judges, etc..) Process is performed where a massed against pretensional jurígenos founded on facts is put forward (or not) defense ( in the broad sense) which, based on the test leads to the statement. In this way it is when may appear invalid. The system consists of five basic elements, inputs, process, output, control and feedback. Annulments are control subsystem in the case of relevant results in a proper feedback. And the processor is basically that in the course of the process, which takes effect annulments.
By developing a system like the one with the CPCCN, with stadiums and estoppel, it must be noted that each of the elements that are placed sequentially in the processing system has to be compared with the previous and the basis of the following, taking into account that the line of development does not have to be cut, altered or diverted, thereby resulting from this anomaly helplessness, or prevent it achieving the target (above).
3. Requirements. Of the various elements that must review the control , some of them are defects that lead to the sanction of nullity. But these vices on the one hand, should have given entity to cause this effect and the other is not definitive and that repair the system altered. It is therefore necessary to review two things:
- If vice is covered by the law as to produce the effect annulling, or even in the case of a defect is not covered by the law, it is manifest so that it appears as preventing attacks continue the process or the validity of an act because it does not achieve the purpose of the system.
- If vice is the entity to produce the effect of annulling. This is where the irregularity affects the purpose of the act or produce helplessness, (meaning the existence of a legal interest) and there is no guilt in the petitioner.
- Those requirements may nevertheless be ineffective if the act is consensual, or vice does not prevent the act to fulfill its purpose or the process to continue properly (ie without violating the right of defense).
This situation is as if we were on a train passing through a railway line in which at one time we took a detour was not planned for this trip and take us to a different destination or truncate the possibility of any destination by road be blocked. So if there are any of the conditions mentioned in the path then the process must be retraced to reach the area where the defect occurred (ie where the train was diverted). But if he agrees to take the detour and it does not adequately prevented from reaching the goal or perform the act, you do not roll back actions.
4. Manifestations of nullity. exposure of the conditions mentioned above appears in the nullity provided by the Code is manifested in two ways: 1) by criminality (expressly provided by law), 2) via purpose (if the act lacks the prerequisites for obtaining the object .) We also include within this classification a variant that includes general annulments and annulments particular (such as invalid (such as the annulment of the notification, art. 149 CPCCN, or nullity the auction as the arts. 592 and 2CPCCN). However, the nullity provided by these two routes it is not appropriate: a) if the act, notwithstanding its irregularity, has achieved the purpose it was intended, b) has been agreed, provided that the situation is not described in item 3) of the above. These are the rules of the arts. CPCCN 169 and 172.
is interesting in this respect the distinction made in Colombo, who distributes the nullity proceedings into two groups. He says: "The term 'judicial nullification" in the way it is commonly used, includes several categories of ciphers to fall into two main groups: own procedural nullity nullity proceedings and improper. belong to the first class the irregularity arising from the purely formal the event and whose source is the lack or distortion of the requirements rituals related to the mode of action of the judge and parties merely look procedirnental are on and validated while not belong at the same time, the scope of procedural nullity inappropriate. Are the ones that are configured when the procedural act is not illegal in itself but only by reflection, because its content violates any rules hierarchically superior to the procedural (Const. Nac, art. 31). That provision may be higher than its nature belongs to the realm of the Constitution (national or provincial) or a law background. For example, the procedural act that nevertheless meet the formal requirements that are inherent violates the guarantee of the inviolability of legal defense. Procedural acts would be null, in this case, rather than making them as such, that have provided the means to violate the security constitutional "( ).
5. Types of invalidity. Whatever the way in which invalidity is attempted (either generic or specific, incident, emergency, appeal), it is always relative , so that it can be confirmed. Confirmation can be made by consent or by rolling back the system at the time the deviation occurred, or by replacing the corrupt act. The absolute nullity is a foreign concept to the process.
course, the system can be complex and contain various contemporary way, or have given rise to acts that are appropriate in the period of invalidity. The law aims to reduce the void to the minimum consistent with the rights of defense, so that the independence of events or part of them does not compromise the valid forms such acts or proceedings are, as the legal principle is the validity and invalidity in any case is an exception to protect the helpless and the equal rights established by the contradiction embodied in the Constitution.
From the viewpoint of systems it is clear that the motion for dismissal is to rebuild the sector arising from the flawed and the act which serves the same livelihood, but they do not have previous service or those who are not related as a derivation of the act required within the system flawed, as is the art. CPCCN 174.
A second classification of the types shown in the diagram nullity nullity gross and flagrant not . The criterion was in the Civil Code (art. 1038), albeit in a confused about their relationship with the acts null and voidable . In fact an act is invalid if you do not need any research done . Here we find a void that does not require states to produce a transfer for his statement (art. 172 CPCCN last paragraph).
If research is required in fact the act is voidable and if necessary deal with the incident with relevant evidence, but also a plus in requirements: is necessary to indicate the injury from which derives the interest in obtaining the statement and include, where appropriate, the defenses that have been able to oppose (it is in general the criterion of art. 172 CPCCN second paragraph), although it is not necessary when the injury or the interest becomes apparent .
This is because if the system - however the vice-can achieve the goal without violating the legal defense request for annulment is unfounded, since the nullity of the void itself is not appropriate. Since the invalidation must respond to a practical purpose, it is incompatible with their nature null and void by the invalidity thereof or to satisfy a mere theoretical interest, not mere irregularities which do not deny the essence of the act that contains or was issued in Consequently, they are likely to cause that result.
6. The substantial void in the process. While substantial invalidity can not be taken in the process system, there may be legal acts which affect the process invalid. Normally
substantially void that is attacking the legal acts, referred to the documentation included in the proceedings as proof, as it could be a public document . The path of falsehood redargución incidentally seeks a substantial void and refers to an external document relapsing process the result of that void, not the procedure but the validity of the act for the purposes of the test. But neither any public document incorporated in the process handled by that lane.
But there are some cases where the act is attacked by way of substantial void, as when he calls redargución of falsity of the official notice. This document is part of the process, but is a legal substance, incorporated into the trial, where a public official acts. But what is the difference with a substantial measure that is not integrating the sequence of procedures?. We have seen that in the previous case, the attack an act substantially related to the claim affects the validity of proof of that act with consequence in the decision regarding the granting or otherwise of the claim.
When a significant event is part of the procedure, although the absolute invalidity is even, or be a non-existent act, its effects are produced in the annulment process and the damage to that process is equally on, because the substantive invalidity of the act itself just causes a retrograde system of procedure a fin de que se cumpla el acto de manera adecuada. El acto sustancial declarado nulo constituye la base para que se decrete la nulidad procesal, siempre relativa, independientemente que la nulidad del documento incorporado, que es de otra naturaleza.
El ataque por nulidad sustancial en el proceso judicial o arbitral siempre tiene una referencia a situaciones que no se vinculan con el procedimiento en sí mismo como hemos visto, aunque existan actos de nulidad sustancial que integren dicho procedimiento.
The same applies to an action for annulment. This has two tracks. In the trial of conciliators may proceed against the decision (not been issued or committed no points, and if found not consented (art. 771 CPCCN). In independent action to void the final decision void the process. As we see, in both cases, the process is complete and both the ruling and the sentence are the procedural legal act that leads to external legal reality the issue before the process system.
7. The principle of transcendence. The word significance (also used as transcendence) and its derivative terms have been used in different ways in different contexts. In CPCCN the term is used both in the vulgar language in the second sense of the Academy (Fig.) as "result", the breaking boundaries as in the philosophical sense, meaning that the service has crossed the coherence of the system and prevents a fair trial ( ). This "principle" of transcendence, means that no one is void without any significant deviations that affect the defense at trial and that there is legal interest in the statement derived for the damage he has caused the allegedly unlawful act.
national civil procedural system but provides two fields from which to pursue the invalidity (the previously established by the encoder and the judge can take), both require that the defect results in the revocation must transcendent being, in line with the fact that the nullity proceedings are restrictive ( ).
However there is a pending issue that is fundamental. As the relative nullity and validation of the instrument or trial proceedings, one of the basic parameters, the question to be considered is how to play the tacit recognition that the act can not fulfill its purpose? Certainly, the nullity may be requested by the party or ordered by the judge ex officio. Should then the judge will act on its own when a blockage or damage in the process or act by a defect that leads to the annulment? The outline
System device, which is the premium on our Procedure Codes that can only occur in extraordinary situations. For example, assuming more common, if a person has been wrongly notified of the claim or has not been directly notified and presented to the process without showing anything tainted consent to the act because its charge is to be a challenge, which is totally available to him. On the other hand if he interests of minors or incompetent, we should consider the situation in another way, for then it address the judge's role is in the field of justice accompanying ( ), as jurisdiction can not disregard the protection of the weak, regardless of whether they are assisted by legal representatives or by the prosecution.
8. Colophon. The scheme of nullification, considered from the point of view of systems theory allows us to immediately understand why simple and void on the process and why the principle of trasncendencia.
The invalidity should amend absent an actual loss that will make the guarantee of due process. This is so-called "principle of significance", derived from the ancient maxim nullité pas sans grief (no nullity without damage), and forbidding the annulment by the invalidity thereof. (C. Civ. And Com. Rosario, room 2 ª, 7/2/1992, "Arderin, S. Williams c / Garaicochea, Reuben) JA 1993-IV, synthesis).
The nullification process must be interpreted strictly, reserving as a last resort against the existence of a efectiva indefensión. Ello así, por cuanto el derecho procesal esta dominado por ciertas exigencias de firmeza y efectividad en los actos, de donde se sigue que, frente a la necesidad de obtener actos procesales válidos, se halla la de obtener actos procesales firmes sobre los cuales se pueda consolidar el derecho (conf. Sala 1ª, causa 16155/94 del 17/8/1995). Dichas nulidades no responden a un mero prurito formal, sino que imponen como requisito esencial que promedie un interés jurídico propio lesionado por el acto que se impugna, pues resulta inconciliable con el objeto del proceso la nulidad por la nulidad misma, o para satisfacción de un interés meramente teórico; y es por esto que el principio de trascendencia requiere that those who invoke the penalty claims and show that the alleged defect caused her certain and irreparable damage (C. Nac. Civ and Com. Fed. room, 2 ª, 20/12/2000, "AMERICAN RESOURCE CORPORATION c / RADE SA Protective measures. CAUSE N. 1744/98.).
Berizonce notes that conflicts covered by this concept tend to offset the inequalities of the opponents especially strong interest in social conflicts such as those arising from situations of family and children, lasting relationships and labor, pension and social security, food substance generally of small causes. (Berizonce, Roberto, Derecho Procesal Civil Actual, Abeledo -Perrot, Buenos Aires, 1999, p. 368, nº 5
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