Derecho Procesal II (GED70101)

General information

Type:	OB	Curs:	3	Period:	S semester
ECTS Credits:	3 ECTS

Teaching Staff:

Group	Teacher	Department	Language
Ed: 1	Francisco Peláez Sanz	Derecho	ESP

Group	Teacher	Department	Language
Ed: 2	Francisco Peláez Sanz	Derecho	ESP

The content of the Procedural Law I course.

Workload distribution:
- In-class activities: 50% of total credits
- Guided activities: 20% of credits
- Independent study: 30% of credits

- Learn the principal characteristics of the different declaratory procedures and how they are organised according to regulations, diferentiating between general and special declaratory proceedings.
- Know how to determine and choose the most suitable proceedign for a specific conflict.
- Gain an in-depth knowledge of ordinary and oral trials.
- Become familiar with the guidelines for arbitrations as an alternative solution to declaratory procedures.
- Learn how enforcement functions within the framework of a civil procedure and know how it proceeds from the request for enforcement, its guarantee measures and then up to the embargo of goods, with a special focus on the function of judicial auctions.

21. To acquire values and ethic principles

3. Taking decisions / making judgments

1. The second court and extraordinary appeals The aim is to become familiar with the proceedings after the decision made by the first court, duly analysing the second court and proceedings resulting from extraordinary appeals if necessary. Thematic blocks (the course syllabus details the specific content).

2. Effects of declarative proceedings The aim is for students to basically understand the legally settled matter as the first effect of a firm sentence ending declarative proceedings. In addition, we will analyse the cancellation or revocation of the legally settled matter. Thematic blocks (the course syllabus details the specific content).

3. Crisis in the declarative proceedings The aim is to understand the primary issues which arise in the normal development of these proceedings: prejudicial questions, incidental questions and the possibility of suspending the proceedings. Thematic blocks (the course syllabus details the specific content).

4. Declarative proceedings The aim is to understand the different proceedings established by law, how they're structured and how the best proceeding is determined, further exploring general proceedings in particular (ordinary and oral trials). Thematic blocks (the course syllabus details the specific content).

5. Alternative conflict solution methods The aim is to become familiar with the laws governing arbitration and mediation as alternative solutions to conflicts and the use of declarative proceedings. Thematic blocks (the course syllabus details the specific content).

6. Implementation proceedings The aim is to understand the assumptions regarding sentence implementation and how the latter works. Provisional implementation and functioning. Differentiation between the different executive activities depending on if monetary or non-monetary. At the same time, we will give special attention to the execution of mortgaged or encumbered assets and precautionary measures. Thematic blocks (the course syllabus details the specific content).

7. Course syllabus 1. CIVIL PROCEEDINGS Chapter 1: SECOND COURT LESSON 1. SECOND COURT. I. Appeals and the second court. II. General dispositions: A) Appealable decisions; appeals; cases for preferential processing. B) The competent court. C) Area and effects of appeals. III. Substantiation of the appeal: A) Preparing the appeal; B) Presenting the appeal: 1. Allegations regarding the basis; 2. Allegations based on a violation of norms or procedural guarantees; 3. Documents that can be attached and request for evidence; C) Opposition to appeals and recurring the sentence (the so-called ¿adhesion to the appeal¿); D) Remission of legal acts and testimony for the provisional execution; summons; E) Admission of evidence and setting the hearing date; possibility of holding the hearing without any proposed evidence: F) Appeal decision: 1. Its content depending on decisions regarding the basis of the question or procedural violations; 2. Sentence congruity; prohibition of "reformatio in peius". Chapter 2: EXTRAORDINARY APPEALS LESSON 2. THE SYSTEM OF EXTRAORDINARY APPEALS. I. General considerations. II. Extraordinary appeals due to procedural violations: A) concept and function; B) Competent court, appealable decisions and motives; C) proceedings; D) Sentence and its effects; E) Appeals against the sentence dictated by the Provincial Course after determining the extraordinary appeal for procedural violations. III. Cassation: A) Concept and function; B) Competent court; simultaneous appeals against the same sentence before the Supreme Court and the Superior Court of Justice; C) Appealable decisions and the motive on which cassation should be based; ¿cassation interest¿; D) Proceedings; E) The sentence and its effects; IV. Simultaneously lodging an appeal against a sentence with a different extraordinary appeal; V. Appeal in the interest of the law: A) Finality concept and nature; B) Competent court; C) Appealable decisions; D) Legitimation to appeal; E) Proceedings; F) The sentence and its effects. Chapter 3: EFFECTS OF THE PROCEEDINGS LESSON 3. LEGALLY SETTLED MATTERS (¿RES JUDICATA¿) I. Firmness and non-variability of the decisions. II. Court decisions and legally settled matters: formal and material ¿res judicata¿ III. Formal ¿res judicata¿ IV. Material ¿res judicata¿: A) Concept and legal nature; B) Negative or excluding function and positive or prejudicial function of the legally-settled matter; C) Limits of the legally settled matter: 1. Subjective; 2. Objective; 3. Temporary; D) Proceedings: 1. Negative function; 2. Positive function. V. Firm sentences without the authority of ¿res judicata¿: A) Sentences on the basis of summary proceedings; B) Resolutions on procedural matters; C) ¿Res judicata¿ in collection proceedings. LESSON 4. CANCELLATION OR REVOCATION OF ¿RES JUDICATA¿ I. General considerations; nature of the instruments to cancel or revoke. II. Hearing for guilty in contempt of court: A) Concept; B) Suppositions; C) Proceedings, sentence and effects III. Review of firm sentences: A) Concept and nature; b) Area of applications and motives for review; C) Competent court; D) Legitimation; E) Deadlines to present recourse; F) Lodging recourse, proceedings, sentence and effects. IV. The "incident" of annulled actions: A) Concept, nature and purpose; B) Area of application and motive for annulment; C) Competent court; D) Deadline; E) Proceedings, sentence and effects. Chapter 4: PROCEDURAL CRISES LESSON 5. PROCEDURAL CRISES I. Concept of procedural crises. II. Pre-trial questions: A) Questions subject to remand or not subject to remand; B) Criminal pre-trial issues in civil proceedings; C) Pre-trial questions in non-criminal proceedings: administrative or social disputes; D) Pre-trial questions in civil proceedings; E) Contitutional pre-trial questions: the issue of unconstitutionality; F) Pre-trial questions regarding European Community Law. III. Incidental questions: A) Concept; B) Types of incidental questions: 1. Incidental questions requiring special pronouncement; 2. Incidental questions requiring prior pronouncement; suppositions and cases; C) Incidental proceedings: 1. Approach; 2. Admission; 3. Substantiation; 4. Decision. IV. Suspension of proceedings through mutual agreement between the parties. DECLARATORY PROCEEDINGS Chapter 1: NORMS REGARDING DECLARATORY PROCEEDINGS AND DETERMINING THE APPROPRIATE PROCEEDINGS LESSON 6. NORMS REGARDING DECLARATORY PROCEEDINGS IN THE LAW ON CIVIL PROCEEDINGS I. Fundamental prior concepts II. General declaratory processes and special processes. III. General declaratory proceedings; norms IV. Special declaratory proceedings; norms: A) Proceedings expressly identified as ¿special¿ by the Law on Civil Proceedings; B) Other special declaratory proceedings regulated by the Law on Civil Proccdedings. V. Quick civil trials: Offices of Immediate Designation. LESSON 7. DETERMINING THE APPROPRIATE PROCEEDING I. The amount as general criterion; determining the amount: 1. General rules; 2. Special rules in case of proceedings with multiple objects or parties. II. Matter as the special criterion. III. Procedural treatment of determining proceedings; A) Ex oficio control; B) Contestation by one of the parties. Chapter 2: GENERAL DECLARATORY PROCEDURES LESSON 8. ORDINARY TRIALS I. General considerations. II. Common ordinary trial: A) Initial allegations; B) Pre-trial hearing; C) The trial; D) Final procedures and sentence. III. Ordinary trials with specialisations; primary traits. LESSON 9. ORAL TRIALS I. General considerations. II. Common oral trials: A) Initial actions; B) Summons for hearings and hearing proceedings; C) Sentence; D) Summary oral trials: absences of ¿res judicata¿ in special cases. III. Oral trials with specialisations; primary traits. Chapter 3: SPECIAL DECLARATORY PROCESSES LESSON 10. PROCEEDINGS NOT SUBJECT TO REMAND: COMPETENCY, FILIATION AND MARRIAGE I. General considerations. II. Proceedings on people¿s competency: A) Determining incompetency; B) Prodigality; C) Reinstatement of competency and modifying the scope of incompetency; D) Involuntary reclusion due to psychological disorders. III. Filiation, paternity and maternity proceedings. IV. Marital proceedings: A) Marriage annulment, separation and divorce; B) Provisional and definitive measures: their adoption and modification; C) Proceedings to recognise religious determinations or decisions regarding marriage. V. Proceedings to protect minors: A) Proceedings regarding guardianship and custody of minors or regarding child support presented by one parent on behalf of minor children; B) Proceedings aiming to contest administrative decisions affecting minors. VI. Proceedings addressing the need for consent in adoption. LESSON 11. PROCEEDINGS FOR THE LEGAL DIVISION OF ASSETS I. Proceeding for the legal division of inherited assets: A) Declaration of intestate heirs; B) Proceedings for the division of inheritance; C) Intercession and administration of inherited assets or patrimony. II. Proceeding to settle marital economic regime. LESSON 12. PRIVILEGED GUARDIANSHIP OF CREDIT I. General considerations. II. Monitory proceedings: A) Concept and nature; B) Competency; C) Initial petition, admission and obligation to pay; D) Possible actions by the accused party; E) Opposition by the debtor and transformation of the proceeding; F) Monitory proceedings and ¿res judicata¿. III. Monitory trials: A) Suppositions: cases when required; B) Competency; C) Proceeding; D) Sentence and effectiveness. ALTERNATIVE MEANS OF CONFLICT RESOLUTION LESSON 13. EL ARBITRATION I. General questions: A) Concept; B) Nature; C) Types: 1. Legal arbitration and equity arbitration; 2. Internal arbitration and international arbitration; D) General norms. II. The arbitration agreement and its effects. III. The arbiters and their competency. IV. Arbitration proceedings. V. Arbitration decision and end of proceedings. VI. Legal intervention in arbitration proceedings. VII. Annulment and review of arbitration decisions. IX. Request for execution of foreign judgements. LESSON 14. MEDIATION I. General considerations: A) Concept; B) Area; C) Mediation and determination and termination deadlines. II. Guiding principles of mediation. III. The parties. IV. Statute of the mediator V. Mediation proceedings. VI. Execution of agreements. SENTENCE EXECUTION PROCEEDINGS Chapter 1: ASSUMPTIONS AND OBJECT OF OBLIGATORY EXECUTION LESSON 15. THE FUNCTION OF SENTENCE EXECUTION PROCEEDINGS I. The need to ensure the effectiveness or practical application of the law: A) Execution and declaration; B) Execution and responsibility. II. Nature of the execution activity. III: Execution assumptions: executive action and executory title. IV. Singular execution and collective or universal execution. V. Execution objective. VI. Execution proceeding legal sources. LESSON 16. EXECUTORY TITLES I. The executory title as a standard document. II. Types of executory titles: A) Judicial and scalable executory titles; special consideration for the firm sentence; B) Non judicial or contractual executory titles. III. Foreign executory titles: standardisation and execution of foreign executory titles: A) Foreign sentences; special consideration for the Brussels Pact; B) Foreign sentences; C) Standardisation of canonical resolutions. IV. Improper executions: merely declaratory sentences and constitutive sentences. Chapter 2: PROVISIONAL EXECUTION LESSON 17. PROVISIONAL EXECUTION I. Concept and legal nature. II. Provisional execution assumptions: A) Provisional execution title; B) Competent court; C) Legitimation; D) Distrainer¿s not needing to provide a deposit. III. Substantiation: A) Provisional execution of sentences dictated by the court of first instance: 1. Petition; 2. Execution office; 3. Opposition to the provisional execution; 4. Suspension of the provisional execution; 5. Confirmation of sentences executed provisionally; 6. Annulment of sentences executed provisionally; B) Provisional execution of sentences issued by the court of second instance: 1. Applicable cases; 2. Remission to regulations on provisional execution of sentences dictated by the court of first instance and procedural specialisations; C) Execution of arbitration decisions during annulment proceedings. Chapter 3: GENERAL REGULATIONS GOVERNING EXECUTION LESSON 18. EXECUTION PROCESS SUBJECTS I. The competent court: A) Criteria to attribute competency; B Procedural handling: 1. Ex oficio appraisal; 2. Contestation by a party; C) Means to resolve obligatory execution. II. Deputy Clerk. III. Execution parties: A) Concept; B) Ordinary legitimation; C) Legitimation in special cases: 1. Succession; 2. Joint property; 3. Joint and solidary debtor; 4. Execution of temporary associations or entities; 5. Execution of non-legal entities; IV. Third parties: A) Concept; B) Executions aimed at third-party property: 1. Licit executive actions; 2. Illicit executive actions; 3. Third-party claim to ownership; C) Execution aimed at property over which third-parties have a preferential claim; paramount rights. V. Representation and defence. VI. Execution costs. LESSON 19. THE UNITARY EXECUTION SYSTEM AND DIFFERENT MEANS OF EXECUTION I. The unitary execution system: historical precedents and comparative law. II. Specialities or unique traits depending on the legal nature (or not) of the title. III. Different means of execution: monetary and non-monetary execution. IV. Particular traits regarding the execution of mortgaged or encumbered property. LESSON 20. PROCEEDING COMMENCEMENT: EXECUTIVE APPLICATION AND EXECUTION OFFICE I. Executive application: A) Content; B) Documents to include in the application. II. Execution office: A) Assumptions or requirements, expiry and wait; B) Execution office: 1) Writ initiating the execution: its content; 2. Decree by the Deputy Clerk; Execution Office notification; 4. Measures to adopt immediately after the writ to initiate execution. III. Rejection by the Execution office. Abusive clauses. Appeals. IV. Accumulation of execution proceedings. LESSON 21. OPPOSITION TO EXECUTION, CONTESTATION OF EXECUTION ACTS, EXECUTION SUSPENSION AND TERMINATION I. Opposition to execution: A) Concept and nature; B) Single execution and corresponding opposition system; C) Types of opposition: 1. Opposition based on formal errors or causes; 2. Oppositions based on motives related to the cause: a) Opposition to legal titles and assimilated titles; b) Opposition to non-legal titles; c) Opposition to writs regarding maximum amounts in traffic accidents; D) Substantiation of opposition due to form and basis; E) Resolution of opposition due to form and basis and its effects II. Contestation of specific execution actions: A) Concept and nature; B) Types of contestation: 1. Violation of norms governing execution proceeding actions; 2. Contradiction of that included in the executive title. III. Legal defence based on facts and acts not included in the causes of opposition. IV. Execution suspension: A) Concept and nature; B) Causes of suspension: 1. General norms; 2. Special cases. V. Execution termination. Chapter 4: DIFFERENT EXECUTION ACTIONS SECTION ONE: MONETARY EXECUTION LESSON 22. GENERAL CONSIDERATIONS AND PRELIMINARY ACTIONS I. Monetary execution object or area. II. Situations in which monetary execution is applicable. III. Monetary execution structure. IV. Embargo assumptions; amount of cash; settlement of monetary sentences: A) Amount of cash; B) Determining the amount and execution office; C) Cases of monetary sentence settlement: 1. Sentences requiring ¿direct¿ payment of an amount of money without the latter being cash; 2. Sentences requiring ¿indirect¿ payment of money in cash; 3. Determining the money equivalent when impossible to provide a non-monetary compensation; 4. Determining to dismiss or broaden the execution. V. Payment requirements: A) Need for payment requirement; B) Place of payment requirement; C) Debtor¿s behaviour regarding the payment requirement; its effects. LESSON 23. EMBARGO OF ASSETS I. Concept, nature and function of embargoes. II. Embargo structure. III. Avoiding an embargo: Allocation of the amount for which the embargo was executed. IV. Object of the embargo: debtor¿s patrimony; assets that can be embargoed: A) Debtor¿s property or ownership of assets; B) Singular or multiple-creditor execution; C) Assets that cannot be embargoed: 1. Absolutely inembargable assets; 2. Relatively inembargable assets. V. Location of assets to be embargoed: A) Means to search for assets when the creditor has not found patrimony or it is insufficient: 1. Debtor¿s declaration of assets; 2. Legal investigation of assets; 3. The obligation to collaborate; B) Reintegration of the debtor¿s patrimony. VI. Asset obstacles or defects: A) Concept; B) Requirements to validate the obstacle or defect; embargo order; C) The re-embargo; D) Embargo of surplus. VII. Different means to guarantee the obstacle o defect; B) Legal deposit; C) The Order to retain; D) Preventative notice of embargo; E) Legal administration. VIII. Effects of the embargo on the debtor¿s assets. LESSON 24. PROBLEMS IN THE EMBARGO OF ASSETS I. Third-party claim to ownership. II. Assets over which third parties have preferential claim. III. Embargo broadening, reduction and modification. LESSON 25. ENFORCEMENT PROCEEDINGS: PAYMENT AND DIFFERENT MEANS OF EXECUTION. I. General considerations: Enforcement proceeding object and purpose. II. Payment or direct delivery of the embargoed assets. III. Different means of execution: A) General criteria to embargo assets; B) Means of execution: regulations. IV. Execution agreement. V. Legal means of execution: A) Obligatory transfer of title: 1. Transfer of shares and other stocks; 2. Auction: a) appraisal of embargoed assets; b) Carried out by expert individual or entity; c) Legal auction; B) Adjudication in payment of chattel and real estate; C) Payment administration. LESSON 26. ENFORCEMENT PROCEEDINGS: LEGAL AUCTION I. The legal auction as an ordinary system or means of enforcement. II. Auction of real estate property: A) Preparing the auction; B) Auction announcement: obligatory; C) Auction publicity: 1. Means to publicise; 2. Ad content; D) Bidding requirements: 1. Bidders; 2. Creditor and bidder; E) The auction process and finalisation: 1. Means of bidding; 2. Auctions without any bidders; 3. End and approval of the auction; 4. Interruption of the auction; 5. Estimation of the deposits auctions; 6. Creditor payment and distribution of surplus. III. Auction of chattel: A) Area of application for this auction; B) Regulation of auctions of chattel; C) No requirement to publicise auction; D) Legal situation of the assets: 1. Claim to ownership and encumbrances; 2. Presentation of ownership deeds; 3. Renters and de facto occupants; E) Charge subsistence and termination system; F) Specialities in appraising chattel for auction; establishing the auction rate; G) Announcement, ad and publicity; H) Special conditions to participate in the auction; I) Specialisations in the auction itself: 1. Approval of sale; 2. Auction without bidders; 3. Destination of amounts earned from the auction; 4. Simultaneous auction; J) Acquisition title; cancellation of encumbrances; K) Delivery of possession and the occupants of the property. LESSON 27. EXECUTION OF MORTGAGED AND ENCUMBERED ASSETS I. Protection of the mortgage creditor¿s credit. II. Unique traits of legal execution of mortgage proceedings, their area of application and regulations. III. Assumptions of legal mortgage execution. IV. Competency and legitimation. V. Executive application and documents to be provided. VI. Substantiation of mortgage execution proceedings: A) Execution process: 1. Obligation to pay; 2. Order to deposit motorised vehicles and encumbered assets; B) Certification of ownership and encumbrance; C) Communication of proceedings to the registered owner and posterior creditors; D) Possibility of requesting the property or mortgage asset be administered; E) Announcement and publicity of auction of mortgaged assets; F) Auction and its specialities; G) Payment of credit and distribution of surplus. VII. Opposition and suspension of legal mortgage execution proceedings: A) Opposition to the legal mortgage execution: 1. Formal or procedural objection; 2. Opposition due to basis; B) Suspension of the legal mortgage execution: 1. Third-party claim to ownership; 2. Third-party preferential claim; C) Other demands by debtors not included in the causes for opposition and suspension. VIII. Extrajudicial sale of the mortgaged asset by means of a Notary Public. IX. Specialisation in the execution of encumbered assets. SECTION TWO: NON-MONETARY EXECUTION LESSON 28. TYPES OF NON-MONETARY EXECUTION I. General considerations: A) Interest in sentences being met according to their terms; B) Execution office and the reception of personal warnings and economic fines; C) Measures to guarantee the execution of non-monetary sentences; D) Types of non-monetary execution. II. Execution of sentences to ¿give¿ or ¿deliver¿: A) Delivery of specific chattel; B) Deliver of generic or indeterminate things; C) Delivery of real estate property. III. Execution of sentences to ¿do¿: A) Obligation and deadline to complete the action required; B) Actions to take if said obligation is not fulfilled; assumptions: 1. Non personal order to do; Sentence to publish the complete or partial sentence in communications media; 3. Sentence to issue a declaration of will; 4. Personal order to do. IV. Execution of sentences to ¿not do¿. V. Settlement of damages and losses, profits and income and accountability. Chapter 5: EXECUTION ASSURANCE LESSON 29. PRECAUTIONARY MEASURES: SUPPOSITIONS AND TYPES I. Concept, nature and purpose. II. Precautionary measure traits; special consideration for accessories; provisional execution and precautionary measures. III. Assumptions to adopt and ensure the effectiveness of precautionary measures: A) Assumptions to adopt precautionary measures: 1. Danger of procedural delay; 2. ¿Fumus boni iuris¿; B) Assumption regarding the effectiveness or precautionary measures: Bond. IV. Types of precautionary measures: A) Open regime of precautionary measures; B) Assurance, conservative and anticipatory precautionary measures; C) Specific precautionary measures; D) Generic precautionary measures. LESSON 30. PRECAUTIONARY MEASURES: PROCEEDINGS FOR THEIR ADOPTION I. Jurisdiction and competency: A) Competent court: 1. General competency; 2. Competency in special cases; B) Procedural handling: 1. Ex oficio appraisal; precautionary prevention measures. 2. Contestation by one of the parties. II. Request for precautionary measures; A) Necessary party request as a general norm; B) Precautionary measures agreed on ex oficio in special proceedings; C) Request for precautionary measures in arbitration procedures and foreign suits; D) Importance of agreeing on more burdensome precautionary measures than those requested; E) Time to request precautionary measures; F) The writ requesting precautionary measures; its content. III. Hearing for the sued party: A) Hearing for the sued party as a general norm to adopt precautionary measures; B) The hearing as means to hear the parties. IV. Adopting precautionary measures without a hearing for the sued party: A) Its special characteristics and reasons justifying precautionary measures without first hearing the sued party; B) Opposition to the precautionary measure without a prior hearing for the sued party. V. Writ agreeing (or not) on the requested precautionary measures: A) Writ agreeing on the precautionary measures; B) Writ denying the precautionary measures. The possibility of presenting the request again should the situation change. VI. Bond. VII. Execution of precautionary measures. VIII. Modification and elevation of precautionary measures. IX. Possibility of substituting precautionary measures with a bond.

ASSESSMENT BREAKDOWN

Short bibliography

Due to frequent modifications to the Law on Civil Proceedings, the editions of the recommended textbooks should be those that have been adapted to the most recent legal reforms, ensuring that said particular edition is up to date.These texts can serve as a complement and help regarding the explanations provided in lectures and legal content, in no way substituting the lectures, however. Amongst others, we suggest the following texts:

- ORTELLS RAMOS, M., Derecho Procesal Civil.
- ROBLES GARZÓN, J. A., "Conceptos básicos de Derecho Procesal Civil".
- RIFÁ SOLER, et al., "Derecho Procesal Civil", Volumen II.
- ARMENTA DEU, T., Lecciones de Derecho Procesal Civil (Proceso de Declaración, Proceso de Ejecución y Procesos Especiales).
- MONTERO AROCA, et al., "Derecho Jurisdiccional II Proceso Civil".
- GIMENO SENDRA, "Derecho Procesal Civil II".


Without prejudice to the above, faculty will duly indicate new bibliographic references as they arise.

Legislation
It is essential that students have and use the laws indicated below, in particular the Law on Civil Proceedings to correctly stay abreast adn take advantage of the lectures and study of the material.
- Law on Civil Proceedings 1/2000 with the complementary legislation
- 1985 Organic Law on the Judicial Power

Group	Teacher	Department
Ed: 1	Francisco Peláez Sanz	Derecho

Group	Teacher	Department
Ed: 2	Francisco Peláez Sanz	Derecho