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Greg canon law year C > Process Law > Flashcards

Flashcards in Process Law Deck (64):
0

Competency

Division of 4: person, object, grade, and territory

1

Moral Certitude

The exclusion of any well-founded or reasonable doubt. This lies between absolute certitude and probability.

2

5 parts or elements of a trial

pars actrix, pars conventa, obiectum (dubium), fundamentum (governing laws), and iudex (judge).

3

6 traditional proofs

declaration of the parties, documents, texts, expert opinions, presumptions, and witnesses

4

Objects of a trial

1: To pursue or vindicate the right of physical or juridical persons, or to declare juridical facts
2: to impose or declare penalties in regard to others

5

Action

Custodian of substantive subjective law. In it, a physical or juridical person defends his inalienable subjective rights by legal action. (ie. controversy outside process)

Distinction between actio in fieri (the possibility of action) and actio in facto esse (action being exercised).

actio in fieri --> actio in actu primo
actio in facto esse --> actio in actu secundo

6

Exception

(An objection or oppostion.) A defense of a subjective right which is impugned within the judicial process itself. (ie. controversy within the process). Exceptions are by nature perpetual.

NB: Different than a counteraction

7

Ways the trial can end

(1) Adjudged matter (res iudicata / res quasi iudicata)
(2) Agreement of Parties
(3) Incompetence of Tribunal
(4) Peremption (ie. the instance dies due to time limits)
(a) Inactivity (b) inactivity of the parties for 6 months (c) unjustified inactivity of the parties
(5) Renunciation

Mnemonic: Trials can end through "apair." [Adjudged matter, peremption, agreement of parties, incompetence of tribunal, and renunciation of parties]

8

Schema for proofs in libellus

i. confession of parties
ii. witnesses
iii. causa simulandi (what forces pushed them to simulate marriage)
iv. causa contraendi (what forces pushed them to marry)
v. circumstances
vi. matrimonial circumstances
vii. post-matrimonial circumstances

9

Diritto Proprio

Constitutions and other laws (such as statutes and norms) proper to an entity

10

Dynamic Process

Libellus (petition) --> citation (summons) --> contestatio litis (joinder of the issue) [states dubium] -->
INSTRUCTIONAL PERIOD: Proofs... Incidental Matters... Publication of Acts... Further Proofs... Conclusion of the Cause -->
DISCURSIVE PERIOD: pleadings and animadversiones... defense/responses -->
DECISIONAL PERIOD: conventus... discussio... dispositivum... sentenza... publication of sentence -->
CHALLENGE OF THE JUDGEMENT: Plaint of nullity (querela nullitatis), appeal -->
RES IUDICATA / RES QUASI IUDICATA --> EXECUTION -->
RESTITUTIO IN INTEGRUM (total reinstatement) / NOVA CAUSAE PROPOSITIO --> EXECUTION OF SETENZA

NB: Nova Causae Propositio will NOT suspend execution UNLESS law says otherwise,or appeal tribunal suspends. Meanwhile, Restitutio in Integrum does suspend unless appeal says not to.

11

Irritante vs Prohibitive Law

An irritante invalidates something whereas a prohibitive law only makes it illicit.

12

Change of dubium

Can 1514. Once dubium is set, it can ONLY be changed:
By a new decree,
for a grave cause,
at the request of a party,
after the other parties have been heard and considered

13

What suspends an instance?

(1) Incidental causes
(2) Request for super rato dissolution (non consumation)
(3) In favorem fidei
(4) Also, the death of a litigant, change in status, or loss of office before "conclusion of the cause"
(5) If guardian or curator leaves from office

(4) and (5) are technically interruptions. They suspend if they happen before the conclusion of the cause. If it occurs after the conclusion of the cause, the case is carried through to completion.

Conversely, recourse to the Holy See (unless the case is reserved by the Holy See or it is part of an appeal) does not suspend the instance, nor does recourse to civil authority.

14

Renunciation

(1) Must be free and chosen by the party able to renounce
(2) Other party (including the promoter of justice and defender of the bond) can intervene and continue to pursue the trial
(3) Judge must accept the renunciation

15

Judging of Evidence

1st: Take personal testimonies (which are given probative value)
2nd: Look for corroboration with other evidence to support their statements
3rd: Look for corroboration with witness statements. Or, at least use witness statements to support their credibility
4th: look at surrounding situations and motives. Did they even have to come forward? etc...
5th: A judge can also infer meanings from silence [can. 1531 para 2]

16

Sanation in Radice

Cannot be a defect in consent, only in form or impediments

Check to see that (1) consent persists (2) impediments have ceased

Valid marriage from that moment, but legal effects are retroactive to the moment of consent OR the moment when impediments ceased (for ex, when the other spouse died, etc...)

Bishops can give sanations in individual cases or when it is not reserved to the Holy See.
Holy See has reserved cases of multiple sanations, impediments of natural or divine law, cases of promises or perpetual vows of chastity, or crime.

NB: A bishop must verify that 1125 has been followed for cases of mixed marriages.

17

3 conditions of peremption

(1) Inactivity in the face of necessary/legitimate actions prescribed by the code
(2) Inactivity of the parties which is unjustified
(3) prolonged inactivity for more than 6 months

ie. unjustified inactivity of te parties for more than 6 months despite legitimate calls to action by the tribunal.

Afterwards, ACTS OF THE PROCESS are extinguished, but ACTAE CAUSAE remain

18

Question Posed to Experts per D.C. Art 209 para 2

In causes of "defectus discretionis iudicii," the judge is to ask what was the effect of the anomaly on the critical and elective faculty for making serious decisions, particularly in freely choosing a state in life.

19

Essential Elements of a libellus

i. tribunal being addressed (coram quo... quo petatur)
ii. issue being raised (quid petatur)
iii. On the basis of what right (quo iure inniantur?)
iv. facts supporting this claim
v. Probationes (general proofs) [Declaration of spouses, witnesses, causa contraendim causa simulandi, pre-mat circum, mat circum, post-mat circum]
vi. Who is being addressed? ie against whom (a quo petatur)
vii. identification of petitioner

Also...
i. signature of petitioner ii. date iii. address of actor
iv. address of respondent vi. any helpful documets

20

Juridical act

a juridical act is a lawful, legitimately manifested human act by which a person intends to produce a juridical effect determined by a known law... as such, it must be: a human act, include those elements which essentially constitute it, and include both the formalities and requisites imposed by law for the validity of the act. Ie. It must be done by those legally able, following the proper elements, and be legitimately manifested.

21

trial (process)

A process is the legitimate instruction, discussion, and definition before an ecclesiastical tribunal about a matter in which the Church has a right to be adjudicated, chiefly for the defense of divine and ecclesiastical law, in order that the judgement may imitate the justice of God.

22

Procedural Law

That part of canon law which deals with the establishing of acts according to the law for the purpose of arriving at a decision or an administrative act.

23

Types of proofs

(1) judicial and extra-judicial. If extra-judicial, is it from suspect time, or non-suspect time?
(2) Direct proofs and indirect proofs
(3) Full proofs and semi-proofs
(4) Principle proofs and subsidiary proofs
(5) Some assumptions have the favor of law. ex. marriage has the favor of law. Consummation assumed if they cohabitated after marriage.
(6) All useful and licit proofs can be brought forward.

Proofs rejected if: requested by the parties and/or the proof is useless for the judge because enough proofs have been gathered already.

NB: To deny a proof, even in an illegitimate way, does not give motive for nullity of sentence.

Not null because:
(1) Right of defense exercised ad normam iuris
(2) Denial of right to defense only occurs when NO proofs are allowed
(3) Publicity of the acts allows more proofs which sanates the right to defense with proofs.

24

Ways to get "res iudicate" or "res quasi iudicata"

(1) Double conformity of sentence
(2) Time for appeal expires
(3) Appeal is abated or renounced
(4) Something cannot be appealed

Can never have an adjudicated matter concerning the status of persons. Instead, you have "res quasi iudicata."

25

Precept

A singular administrative act which is a decree that enjoins a person(s) to do or omit something. It is a penal precept if a penalty is attached.

26

Appeal

No reason needed to appeal. 15 days from the publication of the sentence to appeal to the judge who gave the sentence. After this, there is one month to follow up by choosing court of appeal and transmitting the documents of the sentence and the reasons against it. [If this is a marriage appeal, the appeal to the tribunal of the first instance automatically causes the forwarding of acts ex ufficio]. An appeal suspends the execution of the judgement.

Can you appeal? There is no appeal against:
(1) Judgement of the Pope or the Apostolic Signatura
(2) A null judgement unless the appeal is lodged with a querella di nullitatis
(3) A judgement which has become Res iudicata
(4) A decree of a judge or interlocutory judgement unless appeal lodged with appeal against the entire judgement
(5) A judgement or a decree which was settled "expeditissime"

27

Ius agendi

Ius ageni is the actio in actu secundi.

Substantial subjective right (the right itself)
Adjectival Subjective right (the ability to defend the substantial subjective right)

Actio in actu primo: adjectival subjective right. The ability to act and defend a substantial subjective right (actio in fieri).
Actio in actu secundo: The acting to defend a right, the exercise of the adjectival subjective right (actio in factoesse)

28

Plaint of nullity

Can 1619. For cases concerning private good, acts which are null due to positive law are sanated by the judgement itelf IF the nullity was known to the party making the plaint and was not raised before the judgement.

If judgement is null with irremedial nullity [given by a judge absolutely non-competent, right of defense was denied, judge compelled by force or grace fear to deliver judgement etc...], plaint of nullity can be made in perpetuity as an exception or within 10 years of the date of publication of judgement as an action.

If judgement is null with a remediable nullity [not given by lawful number of judges, lacks signatures, doesn't contain motives or reasons for decision etc..], plaint of nullity must be proposed within 3 months of notification of publication of judgement or it sanates itself. Within this time period, the judge can correct the mistake himself unless a complaint has been lodged.

29

Presumptions

Can be based on "law" or "man"

If based "a hominis":
Must be based on (a) certain and (b) determined facts which are (c) connected with the matter in dispute.

The presumptions can be made using Deductive or Inductive reasoning. Deductive uses major and minor premises (both based on fact) to derive a conclusion. Inductive looks at pieces of evidence on the context of the whole.
(b) it must be based on determined facts

30

Vetitum

They try to keep another null marriage from happening. They are prohibitive, not irritante [ie don't affect validity].

Can be:
"inconsulti tribunali", in which case the tribunal must be consulted before contracting a new marriage, or "inconsulto ordinario."

31

Substantial Conformity

2 different caputs which are essentially the same, which count as 2 affirmative decisions.

3 interpretations:
(1) Restrictive: capi are essentially the same
(2) Extensive-strict interpretation: The two capi are found within each others decisions
(3) Extensive-wide interpretation: Using the same evidence to arrive at different capi.

32

Types of exceptions

(1) Dilatory Exceptions - an exception which can delay the process but not destroy the claim
(a) major dilatory - an exception about a defect that will make the sentence invalid
(b) minor dilatory - an exception about a defect that will not make the sentence invalid
(2) peremptory exception - an exception which destroys the claim
(a) litis finitae - destroys both action and process
(b) litis non-finiatae - destroys the action, but not the process. Ie. it prevents the prosecution of the action for the present time by seeking to declare invalid some essential element of the actio

33

Parties

In this, first name is the acting party and 2nd name is the defending party:

1st Instance: Pars actrix and Pars conventa
2nd Instance: Appellans and Appellatus
Penal Trial (accusatio): Promotor Iustitiae and Accusatus
Administrative Process (recursus): Recurrens and Pars resistens

34

Structure of Pleadings and Observations

Pleadings = defensiones or rescripti iuris et facti
Observations = animadversiones

They have a four-fold structure:
Species Facti [descriptions of facts of the case]; Rationes in iure [laws to be applied]; Rationes in facto [arguments based on laws and facts]; Conclusio

35

Instance

One complete hearing of a case, beginning with the citation and ending with the definitive judgement.

An appeal can cause one process (iudicium) to have two or more instances.

The instance is the actio in actu secundo (actio in facto esse).

36

Definitive Sentence MUST

(1) Define the controversy raised, addressing each point with a response
(2) Determine obligation of the parties (and manner in which they are to be fulfilled)
(3) Set out reasons in law [in iure] and in fact [in facto] upon which the decision was made
(4) apportion expenses of the suit

37

"Restitutio in integrum" can be made...

When a judgement is unjust due to:
1) judgement based on false proofs
2) documents are discovered which demand a contrary decision
3) judgement was given through deceiot of one party to the harm of the other
4) a provision of law which wasn't merely procedural was neglected
5) the judgement runs counter to a preceeding decision which was an adjudicated matter

#s 1-3 must be requested from judge within 3 months of when the reasons or facts were made known
#s 4-5 request must be made to the appeal tribunal within 3 months of notification of judgement
#5 can also be 3 months after the knowledge was obtained
Time limits don't apply if is a minor.

Suspends the execution of a judgement which has not yet begun. The judgement can be executed, if the judge makes sure that indemnities can be made.

38

Citation should include

i. name of convoking judge
ii. ame of actor and pars conventa
iii. petitum [reason for summons]
iv. causa petendi [reason given for action... grounds... etc..]
v. place and time of hearing
vi. invitation to appoint an advocate [required for penal cases]
vii. signature of judge, stamp of notary, etc...

iii and iv can be eliminated by attaching the libellus which has this info

Can ??? says libellus must be attached unless there are grave reasons such as fear of civil recourse, fear of conditioning the respondents response, etc...

You must be able to prove this was sent!

39

Rogatorial commission

Request by a tribunal in a letter form for assistance from another tribunal

40

Counter-actions

Can only validly be proposed within 30 days of the joinder of the issue. Should be dealt with in the same grade of trial and simultaneously with the principal action.

41

Fatalia Legis

Canonical time limits beyond which rights cease in law. They cannot be extended or shortened validly unless at the request of the parties.

42

Acta causae

Those acts which pertain to the merits of the case such as sentences, all types of proof, etc...

43

Acta processus

Acts related to the form of procedure or procedural proceedings such as summons, notifications, formalities of publication of judgements etc...

44

Guardian

One who looks after the interests of minors

45

Curator

One who looks after the interests of someone who is mentally unfit (non sui compos)

46

Procurator

One who by legitimate mandate performs judicial business in the name of someone else

47

Advocate

A person approved by ecclesiastical authority who safeguards the rights of the party in the canonical process by arguments regarding the law and the facts.

48

When can a petition be rejected?

1) judge or tribunal is not legally competent
2) it is established beyond doubt that the plaintiff lacks the right to stand before the court
3) the petition was not introduced properly
4) clear from the petition that the plea lacks any foundation, and there is no possibility that a foundation will emerge during the process

NB: there is a right to draw up a new petition, if the original one was rejected due to defects which can be corrected. There is also recourse within 10 days to the collegiate tribunal, if decision was made by a single judge, or to the tribunal of appeal.

49

Nova causae propositio

In a matter where two conforming decisions have been reached in a situation regarding the status of persons (ie there is a res quasi iudicata), a "new presentation of the case" can be requested at any point to a tribunal higher than the tribunals which issued the decisions if there are "new and serious proofs."

After lodging this challenge, there are 30 days to produce the new arguments. The tribunal has another 30 days (1 month) to decide if the challenge is to be accepted.

This challenge does not suspend the execution of the judgement unless the law provides otherwise or the judge decides that their are sufficient grounds and execution of the judgement would cause irrevocable damage (ie. defender challenges two confirming sentences for the nullity of a marriage and the judge needs to stop someone from remarrying)

50

Restitutio in integrum

A total reinstatement of a case in which there is a res iudicata if it can be shown that the sentence was unjust.

51

Judgement of experts

Judgement of experts is based on internal and external factors:
Internal: Methodology of the expert and coherence of the perizia with other acts of the cause
External: Scientific competence and their philosophical anthropology

52

Iura persequenda

Ius in personam. That which is due to me in order that I might fulfill my rights and obligations, for ex the sacraments, and thus I have a right to pursue it.

53

Iura vindicanda

Ius in rem. That which is mine to which I have rights, for example personal property. Thus, I can vindicate that right which was abused.

54

Juridical facts

Acts or events to which the law attributes special force for acquiring, admitting, changing, increasing, or diminishing a right or obbligation. some are voluntary, in which case it is also a juridical act, such as a contract. other juridical facts, such as age, are involuntary.

55

What can the Church judge?

1) cases which refer to matters which are spiritual or linked with the spiritual
2) the violation of ecclesiastical laws and whatever contains the element of sin, to determine guilt and impose ecclesiastical penalties

56

Res spiritualis

A spiritual thing with a finis Ecclesiae. Thus, it falls under the exclusive competence of the Church.

57

res temporalis

A temporal matter with a temporal nature and a finis status. Thus, it falls under the jurisdiction of the state.

58

Res mixta

A mixed matter with a nature that has an inseparable or separable connection between the spiritual and temporal aspect. It has a finis Ecclesiae statusque. Thus, the competence falls on the Church and state in different ways. Exs. Marriage, education, murder, church...

Some are res mixta seperabiliter which can lose their spiritual nature, such as a Church.

some a res mixta inseperabiliter which can never lose their spiritual nature, such as an autonomous pious foundation.

59

Three grades of culpability

Grave negligence :: lata culpa
Negligence :: Levis culpa
Minimal negligence :: levissima culpa

60

Auditor

A cleric or lay person approved by the bishop who serves in the role of gathering proofs during the period stretching from the contestatio litis to the occlusion of the cause. The auditor has the liberty to decide what proofs are to be collected and the manner of their collection unless the judge decides otherwise. Can also request the parties to swear an oath and resolve incidental matters expeditissime by a decree, but nothing that needs an interlocutory sentence of the judge. Swear an oath on taking office.

61

3 types of time limits (can 1465)

1) Fatalia Legis - legal deadlines established by the code itself
2) Judicial deadlines - established by the judge on his own initiative
3) conventional deadlines - established by the judge with the agreement of the parties.

62

When a procurators or advocates necessary?

1) when the judge considers it necessary
2) accused in a penal trial
3) minors
4) cases dealing with public good

Not required for matrimonial cases, but it is advisable. Per DC 102, the two parties in a marriage case can have a common advocate or procurator. Also, a person living in an irregular union may not serve as an advocate in a case concerning nullity of marriage, also, advocate must be catholic and have a doctorate or be well versed in canon law. Both advocate and procurator must be at least 18 years old and of good repute.

63

What is the end goal of the Publication of the Acts?

1) Right to defense
2) To complete the proofs gathered