introduction
In any process carried out in court, the issue of litigation evidence is indisputably central to the parties participating in it.
With the same, it contributes to the objectivization of the impartation of justice, which ends up in turn resulting in the legitimacy and legal security of the actions of the judiciary and of any solid democratic legal system, which boasts of being such.
This is because if one of the parties manages to demonstrate reliably, via the probative means (s) offered, that the claimed right assists him, he will succeed in his purpose. Contrary sensu, the scenario will be different if any of them does not achieve its objective.
However, there is a third possibility in the premises of the evidentiary issues, that is, the fact that one of the parties or both, rather points to the company that the means (s) of evidence (s) presented (s) by the opponent, not to be taken into account. So, we talk about making use of the legal institution, which offers us our Peruvian adjective civil code, called: the judicial offense.
In addition, the topic becomes especially relevant when it is observed that in many opportunities the use of the tag does not achieve the desired objective.
In this sense, it is the subject of this installment, an analysis in relation to the appellant as a worrying and always in force problem caused by the filing of the document defect, incorrectly. Specifically, with respect to the content of Cassation No. 4296-2011-PUNO, that is, about the strike out against a public deed that serves as title to the owner sued for precarious.
II. About document cross-out
In the first place, we have that the offense constitutes a kind of challenge, the object of which is to invalidate or reduce the effectiveness of a means of evidence, due to the fact that there is some defect or impediment with respect to it. According to Art. 300 of the Civil Procedural Code. The strike can be raised against testimonial evidence, documentary evidence and atypical evidence.
Next, ZAVALETA CARRUITERO affirms that the offense is a procedural recourse that is intended to invalidate an evidentiary means (..). Next, the same author adds: “As the offense will be resolved in the sentence, the questionable evidence is allowed to act. If the offense is declared founded, it deprives the erased evidentiary means, and if it is declared unfounded, such evidentiary means retains its value and effectiveness, imposing on the malicious writer a fine and making him responsible for the costs and costs ”.
But, it is also pertinent to take note that to cross out is to cross out or repair. It is the act of pleading against a witness indicating a reason why it is not to be believed, due to its partiality or for lack of means to know exactly what it declares. It tends to invalidate the witness's statement, or to diminish the person. The strikethrough is the relative prohibition for a person to declare. It turns its sayings into ineffective because the cause that affects it casts doubt on its impartiality, in the event that the offense is proven.
Then PAREDES INFANZÓN, states: "You can file a fault against witnesses and documents (…) the fault must be put in front, clearly stating the grounds on which they are based and accompanying the respective evidence (…)".
On the other hand, it should be seen that the fault is considered in Arts. 242.- and 243.- of the Civil Procedure Code. In this regard, it must be noted that “from such articles it can also be deduced that the causes for which a document can be crossed out are: a) falsehood, and b) the absence of an essential formality that the document prescribes under the sanction of nullity "
However, such criteria was not shared in 1996. Thus, we have that, according to the first considering resolution of November 7, nineteen hundred and twenty-seven, issued by the Civil Chamber of the Supreme Court, in cassation No. 1357-96- LIMA, published on May 3, nineteen hundred and twenty-eight in the official newspaper El Peruano: "(…) the strike-off of documents must refer to the formal defects of the instruments presented, and not to the nullity or falsity of the acts contained in the same ones whose nullity or falsehood must be asserted in action, consequently the flaws proposed by the parties turn out to be inadmissible (…) ”.
In this sense, let's say that this was regularized in what is legalized in foundation 3., in fine, of the Resolution of the Constitutional Court, No. 07422-2006-AA, dated 04/10/07, when it advocated: it is clear from the demand, the appellant questions the lack of motivation of the Qualifying Order because: (i) he has not ruled on the end of his Appeal in which he indicates that a piece of evidence not offered has been assessed, so it has not been able to contradict its assessment in a timely manner, and therefore (ii) there has been an erroneous interpretation of the procedural rules regarding the removal of documents, which has had a decisive impact on the outcome of the process ”.
In addition, the aforementioned resolution continues to point out in the second paragraph of reason 5: “Regarding the criteria followed for not admitting the questioning regarding the estimation of the defect, it is observed that the Court did express the reasons for which said point was inadmissible, since he pointed out that “(…) article 242 of the Civil Procedure Code contemplates the possibility of declaring the proven fault that the document is false (…)”. It means that contrary to what the appellant mentions, this procedural rule consistent with article 301 of the same regulatory body, admits the possibility of alleging and proving the alleged falsehood. The fact that the appellant does not share this criterion and maintains a different interpretation of the rules,his position is not legitimized by a claim to be worthy of a substantive pronouncement. ”
Then, cassatory resolution N ° 2276-99 / LA LIBERTAD, dated 11/10/99, establishes in its foundation Fourth.-: “That, regarding the violation of the norms that guarantee the right to due process, it refers to the non-admission of the exhibition proof, but this refusal has been consented and cannot be used now to substantiate the appeal; that in this order it also alleges that the Judge has not ruled on the line formulated to the debit balance statement presented by the Bank, but this line integrates the arguments set forth in the contradiction and have been resolved by the order denying the contradiction., because the strike refers only to the observations on the calculation of the account statement or settlement, reason why it does not constitute a strike, but rather observations on the calculation made;that finally when it expresses that the appraisal of the property given in guarantee, does not include the third and fourth levels that are under construction, despite which the instances of merit consider it, it lacks a real basis since they expressly pronounce on what is built in the levels, indicating that they are included in the appraisal ”.
III. Sub-Review Resolution Facts
It is the subject of the present appeal, the hearing judgment, issued by the Civil Chamber of the Superior Court of Justice of Puno, which resolves to confirm the appealed first instance judgment, which declares the fault against the sale contract, lacking evidentiary efficacy. Said document, and based on all its extremes, the lawsuit on eviction for precarious occupation.
Thus, we have that the appeal has been declared admissible, for the cause of material normative infraction, denouncing the following: a) The merit instances have described as invalid the title of property of the challenger committing usurpation of functions by invalidating said title to illegally make the appellant precarious, without taking into account that to invalidate a property title, one must resort to another and more thorough way and process and not through a fault; b) The Superior Chamber, attributing powers that the law does not grant it, has qualified in this very summary process the property title of the appellant declaring it perished due to alleged falsehood, powers that can only be exercised by the court in a process where the validity of said act and not in an incident;c) The crossing of documents only refers to formal situations of the document that contains it, but not to the legal act of sale and purchase which subsists and is fully valid as it is not expired, nor is it less void.
However, the plaintiff requests that the defendants restitute her property. The plaintiff refers to owning the property subject to cars and that the defendants have been occupying the property subject to cars without paying any rent, so they have the status of precarious occupants.
Then, the Judge of the First Mixed Court of the Superior Court of Justice of Puno, issues a judgment declaring the offense against the sale contract founded, the evidentiary means being ineffective, and the lawsuit founded, concluding: the precarious condition of the defendants is duly accredited with the line against the Public Deed of Sale for not having correspondence with the parent company that should exist in the notarial protocol, (..) the occupation of the property by the defendants is accredited with the judicial inspection on pages one hundred and twenty-five in which it is stated that there is only one room that is used sporadically (…) ».
The hearing judgment maintains as the main argument the following: (…) regarding that the plaintiff's purchase and sale memorandum lacks evidentiary efficacy, it should have been filed through a line duly supported by immediate evidence, noting that the successive tract of the plaintiff's title was it is supported by the purchase agreement corroborated with the public deed testimony of the sale resolution; said legal acts were not validly questioned by the defendants (..) regarding the title of the defendants, the fault is based on the non-existence of said testimony in the notarial protocol, and in the annotations item, there are disagreements regarding the annotations therein, which renders this document ineffective.
The Merit Chamber has estimated the lawsuit, considering that the sale contract is ineffective as the claim filed against the said evidentiary has been declared founded, due to formal defects in the execution of said legal act; however, the ineffectiveness due to document nullity is configured when the absence of an essential formality is evident; that is, it only refers to aspects circumscribed to the form of the act whose non-compliance is sanctioned with nullity and not as the instances of merit have erroneously concluded; noting the Evidence of Public Deed of Sale that the defendants acquired the property subject of controversy in sale and purchase and the fact that, according to the Superior Collegiate,has served as a basis to declare the offense against the property title of the defendants founded, it is the Certificate issued by the Director of the Regional Archive of Puno, who certifies that the Public Deed of Sale in reference, issued before the Notary Public José Paredes Fernández, is not found in the indicated file; However, it is not noticed of what has been done up to now. that the nullity of the sale contract concluded in favor of the plaintiffs or of the corresponding contract has been declared judicially, not being a manifest nullity, taking into account that the Notarial Report is insufficient to determine the ineffectiveness of the effects of the property title that the defendants hold, even more so if for such declaration, other evidentiary means need to be valued, those that have not been contributed to the process;It is also highlighted that this is not the way to elucidate the validity and effectiveness of the title held by the defendant, therefore the precariousness that requires the absolute absence of any circumstance that justifies the possession of the defendants in the real property is not configured. of controversy.
From the above, it is determined that the cause of material normative infraction that is denounced is configured, so the cassation appeal becomes well-founded. For such considerations and in accordance with the provisions of article 396, subsection 4 of the Civil Procedure Code, they declared: FOUNDED the appeal; consequently, they MARRIED the hearing judgment, which confirming the appealed one declares the demand founded »and acting as the court of appeal: THEY REVOKED the appealed judgment, and reforming it, declared the demand inadmissible.
IV. Analysis
In this cassatory resolution, reference is made to the fact that the plaintiff raised an eviction for precarious occupation, arguing (via documentary evidence) that the contract of sale held by the defendants was ineffective, because it does not keep correspondence with the parent company that should exist in the notarial protocol and that disclosures appear in the entry annotations regarding the annotations therein recorded. In this regard, we can point out that this is not a matter of being elucidated in the process of crossing out.
Then, it is striking that the Chamber of merit manifests itself in the sense that the lawsuit deems, considering that the aforementioned sales contract is ineffective, as the offense against said evidence has been found to be founded, due to formal defects in the celebration in the celebration of said legal act. This is because the decision taken denotes that the iura novit curia principle, contained in Article VII.-, of the Preliminary Title of the Peruvian adjective Code, has been violated, which recommends: “The Judge must apply the right that corresponds to the process, even if it was not invoked by the parties or it was wrongly invoked. However, it cannot go beyond the request or base its decision on events other than those alleged by the parties. ”
Likewise, what happened in the present resolution corrected by the aforementioned collegiate of the supreme court, deserves special care, since it could lead to a possible as a very harmful incentive to traffic in real estate, in order to improperly appeal to the legal figure of the judicial offense.
In addition, we have that SAGÁSTEGUI URTEAGA affirms: “The strike is based on the following general principles of judicial evidence: 1) Principle of public interest of the function of evidence (…), 2) Principle of legality and probability or veracity of the evidence (…), 3) Principle of contradiction of evidence (…), and 4) Principle of preclusion of evidence (…) ”. In this sense, it is clear that the party that improperly filed the offense has violated the first two principles cited.
Separate mention deserves that related to procedural recklessness, because the plaintiff did not legally substantiate her fault because she certainly had no way to do it. In this sense, said conduct clearly reflects that what it intended was to achieve, albeit without foundation, a variation (in its favor) in the substance of the decision (however, the objection filed accrued and effectively became iniquitous, for that purpose).
The First Mixed Court of the Superior Court of Justice of Puno suffered the same fate (by incurring in procedural recklessness), for having declared the offense against the aforementioned purchase agreement.
And it is that the conscience of not having reason or knowing oneself acting without possessing a legal reason, is what conditions recklessness. The reckless behavior is reflected before the magistrate, through all the action in the process by the absurd, capricious, etc., of the claims or defenses.
In this sense, taking as a premise that all parts of the judicial process are liable to incur recklessness and procedural malice, we consider that the Supreme Chamber of the case should have proceeded with applying the fine to the plaintiff and to the Judge of the First Mixed Court of the aforementioned Court, for having acted with procedural recklessness against the defendant, as established by Inc. 1, ab initio, of Article 53.-, of the Peruvian Civil Procedural Code, which deals with coercive powers of the judge and that in merit to them it can: "impose a compulsory and progressive fine destined so that the party or whoever corresponds, fulfills its mandates according to the content of its decision".
Furthermore, it should be noted that procedural recklessness and malice are identified with farce, with fraud in the process, with illegality, with abuse of law. Consequently, they are totally contrary to the procedural principles that safeguard the rights of the parties and third parties, principles that can be understood at a generic, or specific level, that is, either at the level of a constitutional or ordinary process.
However, secondly, we have to respect the procedural principles: DAVIS ECHANDÍA apostrophies the importance of the principles of good faith and procedural loyalty (the latter, also called the principle of morality and the principle of procedural conduct), when teaching: " The procedural law must sanction the bad faith of the parties or their proxies, establishing for this purpose severe measures, among them joint and several liability, and the judge must have unofficial powers to prevent, investigate and sanction both that and fraud. procedural".
Consequently, it is clear that acting in this way purposely feasts on the true nature of judicial evidence, distorting it as a prerequisite for the long-awaited and due impartation of justice.
It is very healthy to corroborate, to say the least, the correct action of the Transitional Civil Chamber of the Supreme Court of Justice, by correcting the provisions of the First Mixed Court of the Superior Court of Justice of Puno, revoking it. Ergo, we are answers with what is decided.
Definitely, the Peruvian judiciary needs many more rulings, such as the resolution in comment, for the purposes of acting as real guarantors of the legitimacy of the legal system and legality.
Finally, it is necessary to record that if the plaintiff (as long as his right assists him) had any objection about the validity of the aforementioned sales contract, improperly crossed out, what corresponded to him (and in his case, as regards the Judge of the First Mixed Court of the Superior Court of Justice of Puno), was to initiate -legal, legitimately and constitutionally-, a process of nullity of said legal act, in the corresponding way, which is understood not to be the procedure of fault filed. And in the event of being victorious in such a company, subsequently, file the precarious claim.
V. As a colophon
A judicial offense that stands apart from its quintessence, that is, unfairly winning the case, openly violates the due process of the parties that participate in it, in turn challenging the majesty of the judge's investiture as director of the process.
So, we are of the opinion that although it is true that the fact that not a few parties use the offense in a different way than that provided by the current regulations, in itself it is, the less dangerous, it is more if we verify some magistrates consent when corroborating the mentioned action.
Needless to say, the responsibility for the erroneous filing and acceptance of the offense, not only turns out to be attributable to not a few litigants (that is, to their lawyers), but also, to a similar extent, to the judges, respectively.
In addition, what is indicated inevitably ends up passing the corresponding invoice, in a very damaging way. Decreasing the credibility of the judiciary, in addition to raising transaction costs.
On the other hand, it is worrisome that in order to obtain a right that certainly does not assist him, he chooses to start the judicial apparatus recklessly. Furthermore, if we consider that the procedural burden turns out to be more burdensome and that it delays the processes in the fiscal and judicial headquarters.
Footnotes
- See HINOSTROZA MINGUEZ, Alberto. Comments to the Civil Procedural Code. Article by article analysis. Editorial Legal Gazette. Volume I. Lima. 2006, p. 545.Cfr. ZAVALETA CARRUITERO, Wilvelder. Civil Procedural Code. Volume I. Rhodas Editorial. Lime. 2006. P. 397.Vide ZAVALETA CARRUITERO. Ob. cit., p. 398. Veni ARAGON, Luis Ángel. Legal dictionary of civil procedural law. Editors Idea. Cusco. 1975, p. 281.Cfr. CHILDREN'S WALLS, Jelio. Dictionary of Peruvian civil procedural law. Editorial San Marcos. Lime. 1999, p. 323. “If the offense of a document is declared founded because its falsity has been proven, it will have no evidentiary efficacy. If the falsification of a document is established in criminal proceedings, it lacks evidentiary efficacy in any civil proceeding. ”"When a document shows the absence of an essential formality that the law prescribes under penalty of nullity, it lacks evidentiary efficacy. This declaration of ineffectiveness may be ex officio or as a consequence of an established fault. ”See ESQUIVEL OVIEDO, Juan Carlos. Issues to consider in crossing out a document. Online: Retrieved on 04/09/13, from Blog.pucp.edu.pe http://blog.pucp.edu.pe/blog/seminariotallerdpc/tag/documentos, Lima. 2009. p. 01.See SAGÁSTEGUI URTEAGA, Pedro. Exegesis and systematics of the civil procedural code. Volume I. Editorial Grijley. Lime. 2003, pp. 563- 564. Article 112.- of the Peruvian Civil Code, legalizes: “It is considered that there has been recklessness or bad faith in the following cases: 1. When the lack of legal basis for the claim is manifest,answer or contesting means; 2. When facts contrary to reality are allegedly alleged; 3. When any part of the file is stolen, mutilated or rendered useless; 4. When the process or procedural act is used for clearly illegal purposes or for malicious or fraudulent purposes; 5. When the performance of evidentiary means is obstructed; and 6. When by any means the normal development of the process is repeatedly hindered; "7. When for unjustified reasons the parties do not attend the hearing, generating delay. ”Recklessness is evident insofar as it is related to the procedural act or proceeding on the merits and malice is identified rather with the form, using what is regulated, abusing it. However,We must not lose sight of the fact that both the recklessness and the malice-bad faith- (demonstrated) in which the litigator incurs must be summarily and exemplary sanctioned by the judge of the process. (Cfr. TORRES MANRIQUE, Jorge I. Procedural recklessness and malice in the Peruvian legal system. In: Revista Jurídica del Perú. Editora Legal Rules. Lima. 2009, p. 305) In this sense, we consider it necessary to record that the The fact of being in the absence of reason does not mean that one is in a situation of recklessness, because if this were the case, any litigator losing a case would be liable to sanction; neither is error, nor the absence or poverty of the foundation of the claims; Neither is negligence, much less the existence of compulsory jurisprudence contrary to the claim invoked. DEVIS ECHANDÍA, Hernando. General theory of the process.University Editorial. Buenos Aires. 1984, p. 46.Vide MORALES GODO, Juan. Institutions of procedural law. Palestra Editores. Lime. 2005, p. 44. Veni ESPINOZA ZEVALLOS, Rodolfo J. The specific procedural principles of the Peruvian Constitutional Procedural Code (Art. III of the TP), in Peruvian constitutional procedural law. Legal Editor Grijley. Lime. 2005, p. 396.
