THE PROBATORY VALUE IN THE CIVIL PROCESS
INTRODUCTION
The end of the probative value in the Guatemalan civil process is to convince the judge on the certainty of the facts that support the claims of the parties, all within the framework of a process with the indispensable guarantees, in that sense in article 126 of the CPCyMestablishes that the person who intends something must prove all the constitutive facts of his claim and who contradicts the claim of the adversary must also prove the extinguishing facts of the same.
The probative procedure consists of the set of norms that regulate the probative activity in the process, the test is a very important fear in the process, there is a forensic adage that indicates that “it is so not worth not having a right, as well as having it and not being able to prove it
The means of evidence in two ways serve us either for the parties to demonstrate their de fact
This issue is so great and vast, that the appreciation or assessment of the evidence is useful is the operation carried out by the judge in order to determine the probative force of each of the means practiced in the process
The probative value in the Guatemalan civil process
The proof:
The proof is the justification of the veracity of the facts on which the claims and rights of the parties are founded in a process established before an organ that will perform a jurisdictional function from the material point of view. Through the test, the demonstration of something is intended, the verification of the veracity of the sustained;for which the law indicates a period in which the means of evidence proposed by the parties will have to be completed, indicating the law which are the means of evidence accepted in a process.
The assessment of the evidence: it is an intellectual operation carried out by the judge according to the evidence he has received, which in order to evaluate them and then give a decision based on their verdict, in that it is clarified within the process. This assessment is inclined to determine what its true utility is for the purposes of reconstruction of the event or historical fact whose affirmation gave rise to the process.
The appreciation or assessment of the evidence is the operation carried out by the judge to determine the probative force of each of the means practiced within the Guatemalan process.
The evidence already received during the trial is valued, which has to be noticeable its efficiency for the conviction and accurate conviction to be able to condemn or are not suitable enough or because the claims lack foundation according to the interest made by the allegation.
Proof assessment systems exist multiple, working or asserting themselves to the interpretation expressly determined in the doctrine made by the judge so that they can be applied. These systems are methods that guide us to appreciate the results we want or that the law sets us. Three are the main proof assessment systems that are known: the legal proof, intimate conviction and free conviction or healthy rational criticism.
Test assessment systems or models
- Legal evidence: It is based on the distrust that the law has to the judge there.
In this model of the assessment of the evidence it does not depend on what the judge says but by the assessment of each of the evidence are regulated by law and the judge has to apply it, ignoring his personal criteria.
The judge in this system exposes the result of the practice of the evidence, the applicable legal text in relation to it, be it the conviction that the judge obtains from the result of the evidence, does not prevail if it does not coincide with the legal assessment set inthe law.
- Free conviction: it is based on the confidence to the judge, they are those cases in which the law entrusts the judge enough to be the one who assigns the probative value, this means that it is a free or independent assessment of the mediaevidence.
This system is the opposite of the legal or appraised evidence, so that in this system the judge is not subject to any established rule, so it is adhere to the analysis which determines its value of course that is subject to themeans of evidence that were presented that at the end of all causes his conviction, so this system gives the judge the total freedom for the estimation of the evidence.
Free conviction has no need to stick to the facts that are already proven, but can be based or stick to the events consisting of the judge. In Guatemalan civil procedural legislation, this probative valuation system is notIt is adequate for the corruption that exists because many times it does not agree to the law, so it does not adapt to the existing society regime;although the civil evidence in his work;Page 37, recognizes that the free appreciation of the evidence is, without a doubt, at least when a good judge makes it, the best means to achieve the truth;But he adds that, however, he has its inconveniences. The main inconvenience, citing an opinion regarding this car, is that this freedom is a serious obstacle to the result of the process;If this freedom, he says, is limited, knowing the probable result of the process for the legal effective.
- SANA CRITICA: It is the system of assessment of the proof that uses the experience and psychology that is typical of civil law.
It is the art of judging in a correct way, of analyzing and reflecting on a specific case and the proof produced in the process, is to try to understand.
Healthy critic establishes a category between the legal evidence and the free conviction that has been an intermediate type
The healthy criticism according to jurisprudence is what leads to the discovery of truth by the media that establishes reason and rational criteria, put in trial.
The healthy criticism according to the legislation: seeing the evidence with the rules of healthy criticism, the Court must publicize the legal and logical reasons, in terms of assigning value or dismissal.
Test assessment. The judges will appreciate the evidence according to the rules of healthy criticism. Consequently, the principles of logic, the maxims of experience and scientifically consolidated knowledge cannot contradict
Motivation of the assessment
It is a guarantee of truth of the statements of facts of the sentence to the extent that it allows a control over that space of discretion that is the scope of free assessment, it is also the motivation of a kind of justification embodied in the sentence document, so the judge cannot discover a truth that is not in a position to justify through rationality patterns.
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