We explain a concept little known outside the world of law and that any citizen should know, since, if a lawsuit is filed against him and, he considers that it has not been filed properly, because he does not agree with the locality where it has been presented or because he does not agree with the court that has considered the other competent party, he may claim the jurisdiction that he considers appropriate to the procedure presented by the plaintiff.
By means of the declination, the defendant and those who may be a legitimate party in the procedure may denounce the lack of jurisdiction of the court before which the claim has been filed, since the knowledge of it corresponds to courts of another type or jurisdictional order or to organs mediation and arbitration collegiate
A declination will also be proposed to denounce the lack of competition of all kinds. If the declination is based on the lack of territorial jurisdiction, the court deemed territorially competent must be indicated in the declination.
The declination will be proposed before the same court that is hearing the lawsuit and which is considered lacking jurisdiction or competence. However, the declination may also be presented to the court of the defendant's domicile, which will forward it to the court before which the claim was filed.
Procedural moment for proposing the declination and immediate effects
The declination must be proposed within the first 10 days of the deadline to answer the claim (ordinary trial), or in the first 5 days after the summons for hearing (oral trial), and will suspend until it is resolved, the term to answer, or the computation for the day of the hearing, and the course of the main proceedings.
The suspension of the main proceedings produced by the previous allegation of dismissal will not prevent the court from practicing, at the request of the party, actions to secure evidence, as well as the precautionary measures whose delay could lead to irreparable damages for the plaintiff (plaintiff), unless the defendant provides sufficient security (bond) to respond for damages and losses arising from the processing of a denial devoid of foundation.
Processing and decision of the refusal
The declination letter must be accompanied by the documents or principles of evidence on which it is based, with copies equal to the number of the remaining litigants, who will have a period of 5 days to allege and contribute what they consider convenient to sustain the jurisdiction or the jurisdiction of the court, which will decide the matter within the 5th day following.
- If the declination were related to the lack of territorial jurisdiction, the plaintiff, when submitting the contested writing the declination, may allege the lack of territorial jurisdiction of the court in favor of which it is intended to decline knowledge of the matter.
- If a declination has been filed relative to territorial jurisdiction and it is not determined by mandatory rules, the court, in order to estimate it, will have to consider competent the body indicated by the promoter of the declination. territorial, will be inhibited in favor of the body to which the jurisdiction corresponds and will agree to send it the files with the summons of the parties so that they appear before it within 10 days.
- The court will proceed in the same way if it deems the decline based on having submitted the matter to arbitration or mediation.
- The same resolution will be issued when the court understands that it lacks objective jurisdiction (due to matter or amount).
