Roman procedural law, the basis of the modern procedure
Roman procedural law was a long evolution system used in the Roman courts, which in its subsequent stages formed the basis of the modern procedure in civil law countries. There were three main and overlapping stages: the Actiolegis, which dates from the Code of Laws of the 5th century.C. known as the twelve tables until the end of the second century to.C. The formal procedure, from the second century to.C. until the end of the classical period (third century to.C.); and extra order cognitive or extraordinary procedure, in operation during the post -classic period.
The procedure under legal actions or Actiolegis was divided into several steps. First, the plaintiff approached the defendant in public and asked him to go to the Court, if he refused, he could be taken there by force. The trial itself was divided into two parts. The first was a preliminary audience held before a magistrate who decided if there was a problem to be disputed and, if so, what was. Each step in this procedure was extremely formal. If any of the parties used the incorrect words, that part could lose the case. After the problems were delineated and the guarantees were established, both parties agreed to a Judoex, who was not a lawyer or magistrate, but a outstanding layman, to judge the case. The procedures before the Judex were more informal: the defenders spoke and gave evidence, and often witnesses appeared. Judex made a decision, but had no power to execute it. If the defendant refused to pay the fine or make a restitution within a certain period of time, he could be taken by force to the magistrate. Then, his property could be seized, or he could make a slave to the plaintiff to resolve the debt or property claim.
During the subsequent republic, as the cases became more complex, it was necessary court; There were still two parts in the trial, but the magistrate had greater power to determine if the case would go to Judex.
Under extraordinary extraordinary procedure or extraordinary procedure a much greater power was placed in the hands of the magistrate and the courts. The Court issued the citation, the trial was held exclusively before the magistrate and the court was responsible for the execution of the sentence. In addition, an appeal system was developed. Therefore, the State was involved in the administration of justice and the application of its legal norms similar to that of modern European states. (Ventura, 2000)
The procedural law specifies the process that each case must pass to its conclusion, which does not necessarily mean that the case goes to trial. Everything, from the investigation of an issue, to the presentation of a civil demand or criminal charges, the collection and the exchange of evidence, and the resolution process, or judgment, must follow a specific procedure described by law.
For example, procedural law in criminal matters follows these basic rules:
- There must be a probable cause to make an arrest.
- A prosecutor must present positions, specifying what the individual accuses.
- The defendant must be prosecuted for those charges.
- The accused must inform the court if he has a lawyer or if he is requesting a lawyer appointed by the court.
- The bond must be established (or in some cases denied by a good cause).
- The notice of the date and time of appearance before the court must be sent to the defendant.
- If you cannot reach a guilt agreement, the case is ready for trial.
- If the defendant is convicted in the trial, he has the right to appeal (for cause).
In European legal systems, Roman law has had a great influence. In ancient times, Roman procedural law applied to many countries. One of the main problems of this has been the actio. In the procedure of the legis actions, the actio included both procedural and nouns. Because during this procedure the praetor had granted, or denied, a litigation granting or denying, respectively, an action. By granting the actio, the praetor at the end created claims. Namely. a procedural act caused the existence of substantive claims. Such priority (substance procedure) is contrary to what we think of the relationship today. But it has not only been a priority issue and if one serves the other. As the act had composed of procedure and substance elements, it was difficult to separate both parties again.
Even the scientific management of the law, which was developed during the medieval era in the new universities of Italy (particularly in Bologna, Mantua), did not reach a complete and clear separation.
Roman procedural law had a marked religious influence, while in the current Ecuadorian procedural law there can be no interference by the Church in legal processes.
Beyond that there are differences derived from the passage of time and the transformations of societies, there are still many lags of what was Roman procedural law in current procedural law, certain elements such as action, jurisdiction and process, which, which They were within the Legis Actionis persist in current procedural law, in addition to what this process contains, which must begin with a litigation, which by means of a procedure results in a sentence, which in turn can be challenged through the Use of judgment appeal resources against a supreme agency. (Miranda, 2016)
Within the formal procedure, the figure is persists that once a sentence is issued, there is a period of time to challenge it, otherwise it would cause execution.
In the same way, in the extra ordinem cognitive, the defendants continue to be notified, the right of each party is still being manifested before the authority and the sentence is issued once the test period has concluded.
Judicial organization in Rome
Initially, Rome was governed by Reyes, who were chosen from each of the most important tribes in Rome. The exact nature of the king’s power is uncertain. He could have had an almost absolute power, or it could also have been simply the executive director of the Senate and the people. At least in military affairs, the King’s authority (Empire) was probably absolute. He was also the head of the state religion. In addition to the King’s authority, there were three administrative assemblies: the Senate, who acted as an advisory body of the king; the Curiata committee, which could support and ratify the laws suggested by the King; And the Calata Commitia, which was an assembly of the Priestly School that could bring people to give testimony of certain acts, listen to proclamations and declare the calendar of parties and holidays for next month.
The class struggles of the Roman Republic resulted in an unusual mixture of democracy and oligarchy. The word republic comes from the Latin res publica, which literally translates as ’public company’. Roman laws traditionally could only be approved by a vote of the Popular Assembly (Tribute Committee). Similarly, candidates for public office had to run for the election of the people. However, the Roman Senate represented an oligarchic institution, which acted as an advisory body.
In the Republic, the Senate had great authority (auctoritas), but no real legislative power; Technically it was just an advisory council. However, since the senators were individually very influential, it was difficult to achieve something against the collective will of the Senate. The new senators were chosen among the patricians most consummated by the censors (censorship), who could also get a senator from his office if he found him ‘morally corrupt’; A position that could include bribery or, as under the old man, hug the wife in public. Later, under the reforms of the dictator Sila, the quaver became automatic members of the Senate, although most of their reforms did not survive.
The Republic did not have a fixed bureaucracy and raised taxes through the practice of fiscal agriculture. Government positions such as Cuestor, Edil or Pretort were financed by the private finances of the office holder. To prevent any citizen from winning too much power, the new magistrates were elected annually and had to share power with a colleague. For example, under normal conditions, the highest authority was in the hands of two consuls. In an emergency, a temporary dictator could be appointed. Throughout the Republic, the administrative system was reviewed several times to meet the new demands. In the end, it was inefficient to control the growing domain of Rome, contributing to the establishment of the Roman Empire.
At the beginning of the empire, the claim in a republican form of government was maintained. The Roman emperor was portrayed only as a princeps, or ‘first citizen’, and the Senate won the Legislative Power and all the legal authority that the popular assemblies previously had. However, the emperors’ government became increasingly autocratic, and the Senate was reduced to an advisory body designated by the emperor. The Empire did not inherit an established bureaucracy of the Republic, since the Republic had no permanent government structure apart from the Senate. The Emperor appointed attendees and advisors, but the State lacked many institutions, as a centrally planned budget. Some historians have cited this as an important reason for the decline of the Roman Empire.
Jurisdiction and competition
They correspond to the authority of a court to address specific issues. Competition refers to the legal ‘capacity’ of a court to exercise jurisdiction on a person or a ‘thing’ (property) that is the subject of a lawsuit. The jurisdiction, which a competent court can exercise, is the power to listen and determine a claim in court. Jurisdiction can also be defined as an authority conferred on a court (so it is competent) to listen and determine cases and causes. The jurisdictional authority is constitutionally determined.
The examples of judicial jurisdiction include the jurisdiction of appeal, in which a superior court is invested with the legal power to correct, if he decides, the legal errors committed in a lower court; Concurrent jurisdiction, in which the jurisdiction can be exercised by two or more courts on the same matter, within the same area, and at the time when the claim can be taken to any of the courts for the original determination; and original jurisdiction, in which the Court celebrates the first trial in a matter.
As a court can also have the authority to handle matters within a certain territory, geographical distinctions are important, especially in cases where a court must decide whether the opposite parties have a sufficient relationship with the geographical area in which the court has jurisdiction (which is competent to listen and determine the case). For example, if a court has an appeal jurisdiction, the case must have gone through the necessary preliminary stages before being eligible for consideration by that court.
For examples, in countries like the United States, jurisdiction is largely personal. If a defendant, whether a person or a corporation (a legal person), receives a summons to appear, the court can be involved in the case. In countries with customary law, if personal jurisdiction is impossible to achieve, then jurisdiction can be based on property possession. In such cases, only the property rights of a person are involved, not their individual freedoms.
When a court exercises its jurisdiction to judge a case with foreign elements, the Court applies its own procedural law to the conduct of procedures before it. With respect to the merits of the case, however, the Court may or may not apply its own substantive law. This is the question of election of law and is answered through the rules of election of the forum law, which can be established legislatively (as in most civil law systems) or by judicial precedents (as in most systems of customary law. These rules can indicate the law of the State of the forum or the law of another State, depending, among other things, on the relevant contacts of each State with the case. For example, in cases of grievance, these rules can point to the State where the grievance (Lex Loci delicoti) was committed or the injury occurred (Lex Loci Damni), in contractual cases to the State where the contract was made (Lex Loci Contractus) and, in cases involving real estate, to the state where the property is located (Lex Rei Sitae). (Martinez, 2006)
Action and exception
An action is a judicial procedure filed on the one hand against another that seeks the repair of an error or for the protection of a right or for the prevention of an error. It can be an ordinary procedure in a court of justice, through which one party processes elsewhere for the execution or protection of a right, the repair or prevention of an error, or the punishment of a public crime. In other words, it is defined as any judicial procedure that, if carried out to a determination, will lead to a trial or decree. It is said that the action ends at the trial.
The exception refers to the statements made by any of the parties in a civil or criminal case. Exceptions are reserved for the right to appeal a judge’s decision on a motion. Exceptions also include, in regulatory cases, objections made by any of the parties to the points made by the other party or the decisions of the agency or one of its hearing officers.
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