Categories: Banking Law and Financing
This past October 8th, the New Civil Procedural Code (NCPC) came into force, law number 9342, which repeals almost entirely the past code (CPC) and modifies important procedural institutes that adapt to the dynamics of an oral procedural system.
This orality and immediacy characteristic implies one of the pillars of the reform in the civil process, thus promoting compliance with principles such as immediacy, concentration and publicity. The foregoing does not exempt that there will be stages that will be carried out in written or digital form, only those recognized by the same Code and those that, given their nature, must be recorded in such form, must be documented.
Main changes and novelties: The New Civil Procedural Code is divided into two books. Book One regulates everything related to general provisions applicable to all processes< for example: the principles, norms and procedural subjects, the jurisdiction, the parties, the procedural acts, the acts of the parties, the acts of the court, the deadlines, the defective procedural activity and the form of rectification, the suspension of the procedure, the proof, the oral hearings, the extraordinary forms of conclusion of the process, the judicial resolutions, the means of challenge, the economic repercussion of the procedural activity, the precautionary protection and international procedural norms; and in Book Two, all types of processes are established and regulated (Ordinary, Summary, Monitoring, Execution, Third Parties, Inheritance, Non-Contentious Litigation).
Means of challenge: Chapter IV of the New Civil Procedural Code regulates the means to appeal judicial decisions, establishing a list of cases; creating a limited challenge system to avoid the unnecessary lengthening of the judicial processes; other words, actions that are subject to Revocation, Appeal, Cassation or Revision Appeal are limited. The Appeal of Cassation shall be “against judgements rendered in ordinary proceedings of greater or inestimable quantity and in the cases expressly indicated by the law”. (Article 69.1 NCPC)
Additionally, the Knowledge Processes (Ordinary, Summary and Monitoring), the Incidental, the Inheritance process, the Execution process, third parties and Non-contentious processes are regulated, the abbreviated procedure is eliminated.
Both the Law of Judicial Collection and the Eviction Law are repealed with the New Civil Procedural Code (NCPC), as it will be detailed further below.
ORDINARY PROCESS: The Ordinary process is regulated from article 101 of the NCPC, maintaining the same line of the old CPC, where all claims that do not have a procedure expressly indicated by law, must be processed through the Ordinary Process. The response time of the claim and counterclaim remain the same as the old code, which is 30 days.
Once the 30-day period has elapsed, the Judge, at his discretion or by virtue of the nature of the process or because there is no evidence to evacuate, may dispense the convening of a hearing, or go through the process in a single hearing.
If necessary, the Judge must call to a preliminary hearing where he must comply with a series of stages, among which are: report to the parties on the purpose of the process, conciliation, response of the plaintiff or the receiver of the opposing exceptions, fixation of the object of the debate, admission, proof evacuation, among others.
Once the preliminary hearing is over, if possible, due to the nature and circumstances of the process, it will be necessary to call a complimentary hearing and the parties will be given the opportunity to formulate conclusions, and finally, a judgement will be issued.
If necessary, once the preliminary hearing is over, the Judge may call a supplementary hearing within 20 days of the preliminary hearing, unless a longer period is justified.
SUMMARY PROCESS: Unlike the ordinary process, and following the same line as the previous CPC, the NCPC establishes a list of those processes that must be transacted under the provisions of the summary process regulated in article 103.1 of the NCPC, among these processes are Interdicts, demolition, eviction, those derived from a lease (except for non-payment of rent and public services), and others.
For the lawsuit Answer, the same five-day period is maintained as well as the deadline for opposing prior exceptions, which for all the processes regulated by the NCPC must be alleged at the time of answering the lawsuit (article 37.2 NCPC).
Regarding the hearing of the summary process, the Judge, at his discretion and depending on the nature and circumstances of the process, may indicate a single hearing in order to receive and evacuate the respective evidence. Likewise, as in the Ordinary process, the Judge must comply with the stages of the hearing described in article 103.3 of the NCPC.
The above characteristics are some of the general provisions that regulate the Summary process; however, there are specific procedures when the claims are related, for example, to an eviction, injunctions, suspension of new work, demolition, boasting and others.
MONITORING PROCESS: With the entry into force of the NCPC, the current Judicial Collection Law and the Eviction Law were repealed, due to the incorporation of their regulations to the NCPC, so the Monitoring process will be applied for the collection of monetary debts (with executive force or without it), such as the Eviction process, originated form a lease relationship due to the lack of payment of rent, due date, lack of payment of public services and lack of payment of condominium fees, as long as the payment obligation of this last concept corresponds to the tenant as agreed in the lease.
As the main difference with the previous CPC, we can notice that the term conceived in the injunction ordering the party to accept or oppose the claim requested by the plaintiff is now 5 days, and not 15 days as established in the Judicial Collection Law and the Eviction Law, considerably shortening the terms of the process.
PROCESSES OF FORECLOSURE AND MORTGAGE: Foreclosures and pledge foreclosures are regulated in the NCPC from article 166. It practically maintains the basis of the process of foreclosure and pledge that we know with the Law of Judicial Collections. The oppositions, like the Monitoring process for the collection of monetary debts and the eviction for the aforementioned reasons, maintain the limited opposition structure, which are restrictive, for example, for foreclosure, only the lack of enforceability, the proven payment and the prescription of the term shall be admitted and they must be filed within a period of 5 days after being notified.
Regarding the auction of assets in this type of processes, the line of the previous Judicial Collection Law is maintained, only with some changes; for example, article 159 of the NCPC indicates that the auction may be verified after five business days have elapsed from the day following the first publication of the edict and the notification of all parties, unlike the previous law that established a term of 8 business days.
In conclusion, we can affirm that the primary objective of this reform is to achieve a more rapid, timely and transparent justice system.
