The raison d'être, in the formulation of this essay, is to express the main aspects of the current classification of the procedure in the Colombian civil institution; in accordance with the guidelines of Law 1564 of 2012- New General Process Code (CGP), which completely modified the multiple procedures foreseen for the process, which contemplated, in a scattered way, Law 1395 of 2010 and other concordant norms2.
Likewise, it is worth highlighting the important management carried out by the legislator, in order to update and adapt, in the Colombian civil process, the principle of orality and the system for audiences (art. 3 CGP), therefore, the main objective of This reform is to implement a series or classes of procedure3, which eliminates or reduces judicial congestion, recovers citizens' trust in justice, and resolves late payment and judicial delay at different stages of the process. (Among other).
Thus, the new CGP, in its third book.- Of the processes, which extends from article 368 to article 587, introduced four types of procedures, which stand out, among the contentious ones, the declarative process (from articles 368 to 421), the executive (from articles 422 to 472), and the liquidation (from articles 473 to 576). The last, that is, the fourth, is characterized by not being contentious, and it is the process of voluntary jurisdiction (from articles 577 to 587). For this reason, the basic structure, the elements that characterize it and the procedure of each one of them will be explained.
_________
1 Student of the Faculty of Law and Political Sciences of the Autonomous University of Colombia - Refresher seminar presented in the Procedural Area to opt for the title of LAWYER.
2 Author's Note: With the entry into force of the New General Process Code, through Law 1564 of 2012, the ordinary and abbreviated procedures and the larger and lesser verbal ones, enshrined in the repealed civil procedure code, disappear. See Rodrigo Lara Bonilla Judicial School.- SELF-DIRECTED LEARNING MODULE FORMATION PLAN FOR THE JUDICIAL BRANCH- Orality in civil proceedings- CGP.- Page 21- paragraph 1
3 Author's Note: According to Professor Eduardo Pallares, by concept of classes or types of procedure, it is understood, as the way the process is going to unfold, the procedures to which it is subject, the way to substantiate it, which can be ordinary, summary, very brief, brief or lengthy or verbal, with one or more instances, with or without a trial period, and so on. "
D
However, before going to elucidate the types of declaratory processes, it is necessary to express, that the implementation of the principle of orality and the system by hearings, in the types of civil procedure of the CGP, points out that from now on, the processes declarations are verbally deployed, for this reason, lawyers and judges will understand the concept of declaratory process, as a contest, where the interested party (plaintiff) requests (in oral hearing) the judge, the declaration of the existence or nonexistence of a doubtful right or legal relationship.
Thus, the declaratory process in civil jurisdiction finds its foundation and structure, in article 368 and following, of law 1564 of 2012 (CGP), where it states that it continued to be a bipartite system4, since from it, the declarative process itself and the special declarative process emerge. The first category, that is to say the declarative process itself, two processes were consecrated, the verbal one (articles 368 to 389 of the CGP) and summary verbal (articles 390 to 398 of the CGP), while the second category, that is, the special declarative process, the expropriation process (article 399 of the CGP), the delimitation and marking (article 400 to 405 of the CGP), the division (article 406 to 418 of the CGP) and the order for payment procedure5 (article 419 to 421 of the CGP) stand out..
Of the properly declarative processes
The verbal process, which replaces the ordinary one of the old legislation, is identified by knowing all the controversies that do not have a special procedure indicated, as well as those that do not have patrimonial content and lack their own procedure, as is the case of the resolution of sale, belonging, easements, delivery of trade to the acquirer, payment by consignment, restitution of leased property, annulment of civil marriage, divorce and cessation of civil effects and extra-contractual civil liability lawsuits against magistrates and judges 6 (among others), as announced by article 368 of the CGP.
_______
4 Author's Note: In this work, the author described the declarative process enshrined in the previous legislation, as a bipartite system, since it provided for, two kinds of declarative processes, which are: the declarative ones and the special ones. Ordinary, abbreviated and verbal procedures (of greater and lesser amount and summary) belong to the first category, that is to say, the declarative ones; to the second category, bone, the special declarations, belong the processes of expropriation, demarcation and marking, and divisions.
5 Author's Note: It is well known to the jurists of this country, about the new tool established by the CGP, as a Monitory process, since “it is a procedure of minimal amount, hybrid between the declarative and the executive, foreseen for that a creditor who lacks a title that provides executive merit, may cause his debtor to appear before a judge so that he may recognize and pay the credit. ” In quotation marks and italics, outside the text of the original, then, it was extracted from the article.- Of the new declaratory processes in the General Code of Process, published by the Master Ramiro Bejarano.- page 202.- Colombian Congress of Procedural Law XXXIII.
The other properly declaratory process is the summary verbal process, to which contentious matters of small amount (sole instance) and those of release for de facto occupation in rural estates, of deprivation and restoration of parental authority, provision and relief of guarantees, cancellation and replacement of securities, disputes over horizontal property, food, disputes over copyright, and others provided for in paragraphs 1 to 9 of article 390 of the CGP.
Of the special declarative processes
This type of process is also identified because there is no legal certainty about the law, but the law, the CGP, has provided a special procedure for them, in order for the legal operator to operate in them, such is the case, of the expropriation processes (article 399 n. 2 of the CGP), of demarcation and marking (article 400 to 405 of the CGP), of division (article 406 to 418 of the CGP) and the order for payment procedure (articles 419 to 421 of the CGP).
D
To enter to talk about this topic, it must be remembered that the executive process is a contentious process, which starts from the existence of a clear, express, and currently enforceable obligation (article 422 of the CGP), especially when it is highlights, because the interested party is certain to demand the fulfillment of an obligation (the right), from his debtor, in a judicial instance; For this reason, it differs from the declaratory process, since it does not have to discuss or declare the existence of the obligation7.
In fact, the civil legislator continued with the nature of the executive process contemplated in the previous code, but restructured its operation in order to transform it into a more efficient and effective instrument, for legal operators, since I unify the procedures, " without altering the privileged condition of the creditor with real guarantee and without affecting the prerogatives Challenges of the new regime of the executive process 86 procedural derived from that. And although, in these conditions, the unification seems inconsequential from the executive process, as the document or set of documents that is provided as the executive title, the indication of the obligation in charge of one subject and in favor of another, must appear unequivocally; and the specifications of the object of the obligation must clearly emerge,not only in quality but also in quantity, and the opportunity to fulfill it. In addition, it is necessary that the same title is clear that the obligation is enforceable when formulating the executive demand, that is, that the opportunity to fulfill it has arrived.
______
6 See Ramiro Bejarano, on the formalities of the verbal process in the new General Code of Process,.- page 202.- Colombian Congress of Procedural Law XXXIII.
7 For Professor Rojas Gomez, Miguel Enrique.- Comments to the general code of the process, -, understands from a practical point of view, if it is recognized that the multiplicity of procedural types forces to identify the one that corresponds in each case, it will be necessary to admit that this choice requires some mental activity on the part of the judge and offers a space for sterile discussions on the success of the chosen procedural cord, to the detriment of the efficiency that is demanded of the jurisdictional activity ”.8
In conclusion, it should be noted that the CGP disappears its own activities as provided for in article 489 of the CPC¸, such as the recognition of the document presented, the requirement to make the debtor delinquent, or the notification of the assignment of the credit or from executive titles to heirs 9.
D
The doctrine has defined the liquidation process, as the certainty that there is a right, but uncertainty operates on the partition of who or whom, the assets must be assigned. For Ramón Peladez, the liquidation process is a distributive execution tool, that there is certainty about a right, but uncertainty about what corresponds to each person.10
Taking into account the above, the CGP preserves the traditional processes of the Code of Civil Procedure (CPC), as is the case of the succession (article 473 to 522 of the CGP), the liquidation of a marital or patrimonial company for a reason other than the death (article 523 of the CGP) and the dissolution, nullity and liquidation of companies (article 524 to 530 of the CGP), although, it incorporates into the civil codification, two new modalities of distributive execution or liquidation process, which are: a.) Partition of Patrimony in life11 (paragraph of article 487 of the CGP). b.) The insolvency of a non-commercial natural person (articles 531 to 576 of the CGP).
_______
8 See Rojas Gomez, Miguel Angel.- Challenges of the new regime of the executive process,.- page 85 and 86.- Colombian Congress of Procedural Law XXXIII
9 Hernandez Pelaez, Ramón Antonio, Theoretical elements of the Process.- Volume 2.- Chapter 6, numeral 6.7.2.
10 Hernandez Pelaez, Ramón Antonio, Theoretical elements of the Process.- Volume 1.- Classification of the processes, number 5.3.4.3.
11 Likewise, this provision establishes in the paragraph a novel and convenient legal situation that is the living equity partition, which today is not possible and which consists of a person being able to award all or part of their assets, with or without usufruct reserve. or administration, by public deed, previous judicial license, as long as the forced assignments, the rights of third parties and the community rights are respected. In the latter case, the consent of the spouse or partner is required. See Jesael Antonio Giraldo Castaño.- Partition of heritage in life;,.- page 134.- numeral 12.1.- Colombian Congress of Procedural Law XXXIII
D
Voluntary jurisdiction processes, according to the teacher Aroldo Quiroz12, are those initiated by the parties without a conflict of interest, but rather the need to protect the rights of individuals or request judicial authorization to dispose of the rights of others with whom they You have kinship ties or a legal duty to manage your assets. For Professor Ramón Peláez, the processes of voluntary jurisdiction are characterized by not having an evidentiary debate, the interested party does not file a demand but a request, there is no plaintiff but interested, there may or may not be a dispute, and there is no judgment authorization 13.
Finally, the CGP, consecrated the figure of the process of voluntary jurisdiction in articles 577 to 587, where it is evident that the legislator did not change the substantial aspects of the previous structure, if not limited, in transcribing the precepts contemplated at the CPC; so, the following procedures that are part of it are announced, which are: a) The license requested by the father or mother of the family or the guardians to alienate or encumber assets of their represented, or to carry out other acts that interest them, in cases where the Civil Code or other laws require it, b.) The license for voluntary emancipation, c.) The appointment of guardians, advisers to administrators, d.) The declaration of absence, the declaration presumptive death by disappearance, e.) The interdiction of the person with absolute mental disability or the deaf and dumb who cannot be understood and their rehabilitation and the disqualification of people with relative disabilities and their rehabilitation, f.) The authorization required in case of adoption, g.) The authorization to raise unattachable family assets, h.) Any other matter of voluntary jurisdiction that does not have a different procedure indicated, i.) Divorce, separation of bodies and property by mutual consent, without prejudice to the competence attributed to the notaries. j.) The correction, substitution or addition of items of marital status or name, or annotation of the pseudonym in the record's minutes or folios, and k.) Other matters that the law determines.
________
12 Aroldo Quiroz Monsalvo, NEW MODEL OF MANAGEMENT OF JUDGES AND JUDGES IN THE ORALITY SYSTEM IN THE FAMILY AREA IN COLOMBIA, - concept of Voluntary Jurisdiction,. Page 139 and 140- Rodrigo Lara Bonilla Judicial School.
13 Hernandez Pelaez, Ramón Antonio, Theoretical elements of the Process.- Volume 1.- Classification of the processes, number 5.3.3.1.- page 65
Download the original file
