Process vs. Procedure: Key Legal Differences
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ScribdTranslationsProcess vs. Procedure: Key Legal Differences
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ScribdTranslationsDifferences between Process and Procedure.
Process: In a broad sense, it equates to judgment, cause, or lawsuit. The sequence, the
development, the succession of moments in which a legal act is performed. In
restricted sense: the file, records or folder in which the acts of a
trial, whatever its nature may be.
Set of ordered and precluded steps in order to obtain a judicial decision
with the quality of res judicata.
Performance of all kinds of tests
Final objective. The aim is to obtain formal truth.
Concludes with the jurisdictional act (sentence)
The sentence cannot be modified by administrative act.
Prevalence of the ruling on any administrative act.
Procedure: Regulatory standards for action before the agencies
jurisdictional whether civil, labor, criminal, administrative contentious, etc.
-Sequence of ordered steps processed by various organizations of
State and which conclude in a decision called resolution or administrative act
about duties, obligations, interests, and rights of the administered.
The administrative act that constitutes a decided matter concludes, which means
what can be reviewed in the jurisdictional process.
Objective: search for material truth.
Probative means according to their nature
Decisions are subject to jurisdictional control through the process
administrative contentious
Interval and Term.
Span: Step or passage, Time between two limits, Fall into a fault or error,
time.
In general limit. End of the term, expiration.
Characteristics and purposes of the Process.
Impartiality
Equality of the parties
Expedite
Efficacy
Legal security and essential formalities (Due process)
Contradiction or hearing
Dynamic and dialectical
Device and contribution of prosecutable elements.
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Purpose of the process Establish the truth of the facts through legal means
justice in the application of the law.
Article 257 of the Constitution of the Bolivarian Republic of Venezuela
the process constitutes a fundamental instrument for the realization of
Justice. The attainment of justice is the immediate goal that justifies the activation.
of the jurisdictional power of the State.
The process has an essential purpose, it boils down to the urgency of
materialize Substantive Law in order to clarify the truth of the facts and
in a mediated way, reach a fair resolution.
Assume:
Rules and principles.
The realization of Substantive Law.
Legal security through a set of formalities that together,
lead to a decision, with expectations of justice and in accordance with the
legal requirements.
Procedural Principles
Speed, immediacy, concentration, procedural economy, and orality.
Concepts of:
Action: It is the legal power to claim the provision of jurisdictional function;
it is a subjective procedural right, and, consequently, autonomous and instrumental,
addressed to the judge, as an organ of the State, to request the initiation of
the judicial activity and obtain a ruling, judgment.
Claim: It is the declaration of will made before the judge and in front of the adversary;
it is the act by which one seeks for the judge to recognize something regarding a certain
legal relationship. It is really a statement of law and to the
claim of the guardianship for the same.
Exception: It is one that the defendant can raise against the claim of the
motion, by which he requests the judge to dismiss or declare the
inadmissibility of the claimant's complaint; it is the right to contradiction in
specific. The right of contradiction, the cause, cannot be confused with the
defense or exception, the effect, since the former always exists even when the latter does not.
formula. The exception is the negative claim.
Elements and classification of the claim.
Elements of the claim:
. The Subjects: represented by the plaintiff, actor or claimant,
active subject and the defendant, acted upon or claimed, passive subject, being
the State, jurisdictional body, an impartial third party, to whom it corresponds the
pronouncement on whether to accept the claim.
. The Object: is constituted by the specific legal effect pursued, the
law or the legal relationship that is intended or the responsibility of
unionized, and consequently the legal protection that is claimed; it is what is
pursue with the exercise of action.
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. The Object of the Claim: will be the matter on which it falls, composed of
one immediate, represented by the material or substantial relationship, and the other
mediated, constituted by the good of life that the claim protects.
. The Reason: It is the foundation granted to the claim, that which is requested.
it is deduced from certain facts that coincide with the actual forecasts of the
legal norm, whose action is requested to obtain legal effects.
The reason for the claim can be factual, containing the foundations.
realities on which it is based, which will contain the abstract assumption of
the norm to produce the desired legal effect; and of law, which is given
by the assertion of its compliance with the law by virtue of certain
substantive law norms.
The reason for the claim is identified with the cause requested in the complaint, and
the facts on which the accusation against the accused is based, the case
imputed.
. The Requested Cause or Title: It is the reason that determines its proposition, and it
they constitute the facts upon which the legal relationship is structured.
. The End: It is the decision or ruling that accepts the claim invoked by the
acting party. In the civil sphere, the end will be the claim or demand; in the
In the criminal sphere, it will be the responsibility of the union or the accused.
Classification of the Claim:
1. For the type of resolution demanded. This type of actions are recognized by
its immediate object, that is to say, by the type of resolution to which they tend:
a. merely declarative actions - are those through which the
the acting party requests the judge for a ruling that eliminates the uncertainty in
return to the existence, non-existence, or modality of a legal relationship,
example of those exercised to request the annulment of a contract, etc.
[Link] actions - are those that create, modify or extinguish
a certain substantive legal relationship. Example: the actions that
they seek a resolution that decrees the divorce, or a sentence that declares
the termination of a contract due to the breach by the other party.
c. Actions of condemnation.- in these, the plaintiff requests the judge for a
sentence in which the counterpart is ordered to carry out a conduct
determined. In civil proceedings, the requested judgment may order the
the defendant's conduct consists of giving, doing, or not doing.
In criminal proceedings, the action is usually the conviction, the behavior that
the sentence can impose the fulfillment of a criminal penalty,
prison, fine, community service, etc.
These three types of actions lead to a process of knowledge, the
The judge becomes aware of the litigation through the statements, the evidence
and the arguments of the parties.
[Link] actions.- are those based on titles of a character
executive, and through which the fulfillment of an obligation is requested.
“Essential budget” the existence of a document that the law
granted the status of an executive title, furthermore, the document must
to contain a liquid, certain, and enforceable credit.
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e. Precautionary actions.- these are those for which the acting party requests from
judge a resolution so that they are protected, provisionally and until
until the final judgment is issued in the knowledge process, the
persons, the goods or the rights that will be the subject of this last one.
The precautionary measures arise from the need to avoid the danger of a
right for the delay implied by the pronouncement of the final judgment,
but it requires that the one requesting it proves at least the one they have
law.
2. For the interest rate that is sought to be protected.
a. Individual actions.- are those that individuals exercise to
protects your individual legal interests. This type of action is the
which corresponds to the traditional conception of litigation as a conflict between
two individual parties competing for their own interest.
b. Collective actions.- are those exercised by organized groups
legally, for the benefit of its members (unions).
[Link] actions.- are those exercised by state bodies in
name of the order or of public safety (criminal action).
[Link] for the protection of diffuse interests.- are those that
they seek the protection of the interests of groups of people that do not
they do not have their own organization or legal personality, but are determined
due to circumstantial or generic factors, often based on data
accidental and mutable. The ruling issued by the judge benefits or
it harms, as a rule, all group members who have not been
excluded from the trial expressly.
4. Procedural Capacity: Article 136 of the Civil Procedure Code,
regulates procedural capacity and establishes: Those who are capable of acting in
trial, the individuals who have the free exercise of their rights, the
which can manage on their own or through representatives, except
the limitations established by law.
The capacity to exercise is called procedural capacity, and it is
the power of every person to act in the process and exercise rights or
procedural possibilities and assume the procedural burdens that arise from the
rules that protect the process and the vicissitudes that occur in it.