Flashcards in Processes - Vocabulary (Prepared: Hastings) Deck (158)
law which is statutory or substantive. This is the type of law which defines rights and duties. It is opposed to formal law, which is procedural.
law which instructs one on how to proceed in applying material law; book VII. This describes the rules to be followed in processes.
Bonum publicum – common good
the sum total of the conditions of social life that enable groups and individuals to realize their ends
the respondent in a penal trial; the petitioner is the Promoter of Justice.
an action by one having ordinary or delegated executive power within the scope of their munus. (Note liberty here; should be directed to good of community and purposes of office.)
a lawful, legitimately manifested human act by which a person intends to produce a juridical effect determined by known law.
1. Must be a human act performed by someone legally able (habilis)
2. Must be contain essential elements
3. Must fulfill requirements and formalities established by law. (So always licit.)
actio in actu primo
the first part of an action; the possibility of acting; an adjectival subjective right that may or may not be exercised.
actio in actu secundo
an instance; the actual exercise of an actio in actu primo by bringing it before a judge.
a means to protect a subjective right by which a party approaches the judicial forum to defend a right impugned outside of the judicial forum, e.g. you refuse to pay me money I am owed and I go to court asking them to defend and promote my right to receive the money.
an action directed to the prevention of the violation of a law (1496-98).
action, condemnatory declarative
not sure what this is. Maybe the declaration of a fact that to which a penaly is attached? Is this the same a “declarative penal action”?
action, constituative declarative
an declarative action that creates a new judicial state by its decision, like the grant of restitutio in integro
an action directed to the vindication of rights of physical or juridic persons, or to the declaration of facts. Can concern the public or private good.
an action directed to the declaration of a judicial fact (e.g., was a judicial act valid: 124p1, 125, 126, 128, or reviewing an act of the R.P. with by his mandate 1405p2, or that matter that is res iudicata be restitutio in integro: 1646-7).
action, merely declarative
a declarative action that does not declare a penalty and does create a new judicial state, like the declaration that a judicial fact was not valid.
an action directed to the imposition or declaration of penalties for offences committed. Always concerns the public good.
an action that seeks a right in personam, arising from another persons obligation; e.g. a transitional deacon seeking orders withheld without canonical cause, 1037, or the transfer of rights, or the repayment of damages.
an action directed to the vindication of an matter or a object, or the pursuance of a right, e.g., I want the court to declare that something belongs to me but I’m not necessarily seeking its actual return to me.
an action directed to gaining possession of an object, to protecting a possession, or to the quasi-possession of a right (1496p2), e.g., I want the court to declare something belongs to me and I want this returned to me.
an action directed to the vindication of a right in rem, arising from my ownership of a material thing.
actions, conjunction of
strictly speaking, this is when one person brings several actions against another person in a single process (1493); for example, a person accusing a marriage of nullity on several grounds at once. Speaking loosely, we also use this for interconnection, when several cases with the same object or right are handled by one tribunal (1414).
the collection of all the documents, both regarding procedures and proofs, that apply to a case and that the judge will consult to make his decision.
acts of the case
acts which regard proofs submitted for the instruction of a case.
acts which regard the steps in the process, decisions made by the judge, and actions posted by the parties.
acts, publication of the
the stage of an instance where all the proofs collected during the instruction of the case are made available so the parties can examine them. This concludes when the parties have no more proofs to add and the judge publishes a decree stating this is the case.
a person approved by ecclesiastical authority who safeguards the right of a party by arguments regarding the law and facts. Like everyone in the process, “the advocate has to search for truth.” (Notes 6.5.2, cf. Pius XII to Rota, 1944).
1. Required in penal cases
2. Required in cases involving the minors and the public good, except marriage. Strongly recommended for marriage cases by DC 101.
3. Required in other cases when the judge deems it necessary.
the party appealing; acts as petitioner for the appeal
the party appealed against; acts as respondent for the appeal
the supreme tribunal of the Church.
1. The Apostolic Signatura gives final rulings on judicial matters. It does not receive appeals. However, it does:
a. Decide petitions for restitutio in integro, plaints of nullity, and other recourses against Rotal sentences.
b. Hear exceptions of suspicions Rotal judges and other accusations related to their duties.
c. Hear recourses related to the state of a person where the Rota has refused to grant a new hearing.
d. Conflicts of competence when the tribunals are not subject to the same appellate tribunal.
2. In its administrative section the Apostolic Signatura is the Church’s only administrative tribunal and is the final place for recourse against an administrative act. It also decides conflicts of competence between dicasteries.
3. The Apostolic Signatura also oversees the administration of justice in the church.
a. It supervises the activity of all tribunals and can discipline advocates and procurators.
b. It prorogates the competence of lower tribunals.
c. It grants judicial favors and decides if the Holy Father will accept cases submitted to his judgement.
d. It grants approval for interdiocesen tribunals and tribunals for cases reserved to the Apostolic See.
an expert advisor appointed by the judge to help him decide a case. An assessor is like an advocate for the judge. There can be one or two assessors, they are usually optional (except when a single judge is filling in for a case that should be heard by an collegial tribunal) and they can be lay people or clerics, and need not hold a canon law degree.
(1) a judge of the Roman Rota. (2) a lay person or cleric approved by the bishop and appointed by the judge to help him instruct a case.
bonum fundamentum iuris
a right recognized by law that is challenged, violated, or is in danger of being violated
the ability to act in law; at its most basic level this is nearly synonymous with “juridic personality”.
capacity, juridical in general
the ability to act in law granted by juridic personality, combined with maturity in age and mind.
1. Lack may be absolute: not of age, habitual lack of use of reason, juridic person
2. Lack may be relative: quasi-emancipated minors in spiritual matter, adults barred from administration of temporal goods, the infirm of mind
3. Lack may be supplied by parents, gaurdians (tutors) or curators.
4. Non-baptized may impugn their marriages even though they lack juridic personality granted by baptism, if they have maturity of age and mind.
capacity, juridical in particular
the ability in law to perform a specific juridic act. A judge has this to decide a case; an instructor does not. Unlike juridic capcity in general, this is only needed for validity so specified by law (some disagreement on this point. Not talked about a lot in law. See Notes 6.1.2).
physical capacity; i.e. for marriage, not impotent and having psychic capacity.
a trial whose object is the prosecution or vindication of a right of a person or the declaration of a judicial fact.
a trial whose object is the imposition of a penalty
the action of the judge when he calls the respondent to defend himself in response to the petitioner’s action. This action “closes the circuit” of the trial and begins the instance.
(1) the share of jurisdiction (judicial power) given to one judge (2) jurisdiction in the concrete; the concrete application of a judge’s jurisdiction to some case.
any trial that is public and subject to proofs.
contestatio litis (joinder of the issue)
the stage in an instance following the citation. In this stage, the petitioner presents his action and the respondent responds briefly. This stage concludes when the judge defines the question. Strictly speaking, the contestatio litis occurs in the moment when the judge defines the question by decree.
an action made by the respondent against the petitioner within 30 days of the contestatio litis, for the purpose of reducing the claim of the petitioner or because the cases are connected. The subjective elements are the same but reversed and the object may be different.
this is includes negligence in ecclesial law, but it must be grave to be punished. Lack of due discretion is normally not punished unless law says otherwise.
Astigueta: Intending the act, but not intending the effect.
like a guardian (tutor), but given for an adult with diminished mental capacity. A minor acting in a spiritual matter without the consent of a parent or guardian (1478p2) has a curator, not a guardian, appointed for the case when they are between 7 and 14 or over 14 with diminished mental capacity. (Some civil laws gives emancipated minors these as well.
direct, personal, actual interest at least indirectly protected by law
minimum needed for validly seeking vindication of rights.
a deadline established by the parties. The general rule is that these are simple deadlines unless the parties explicitly agree that they are fatalia legis.
a deadline established by the judge. The general rule is that these are simple deadlines unless the law or the judge explicity states them to be fatalia legis.
a deadline established by the law itself. The general rule is that deadlines for the tribunal are simple while deadlines for the parties are fatalia legis.
deadline with simple effect (simple terms)
deadlines that do not extinguish the right to act when they expire.
deadline with peremptory effect (peremptory terms)
see fatalia legis. fatalia legis—a period of time in which a party may act, after which the right to act is extinguished.
Defender of the Bond
an office mandated for every tribunal which intervenes in marriage and ordination cases to propose everything that can reasonably argued against the nullity or dissolution of the bond.
an advocate when required by law for a penal case, or a contentious case involving a minor or the public good.
define a question
the action of the judge at the end of the contestatio litis in which he issues a decree stating the precise question (about law and facts?) that the trial will seek to answer. His decree is based on the action of the petitioner and the respondent’s brief reply in the contestatio litis.
a means by which a person defends a subjective right impunged within the judicial process itself. Or, from the NCCCL: “a claim or complaint (strictly speaking a complaint made by the defendant) which either modifies the procedure in some way or quashes the action altoghether.” E.g., you take me to court for the non-payment for a contract and I ask the judge to recognize that you didn’t fulfill the contract. The general sense includes the initial rejection of the petitioner’s claim by the respondent; it is presupposed by a trial. The proper sense is for specific means to defend rights impugned in the process (?).
an exception which can delay the process but cannot destroy the claim. E.g., “the judge is the cousin of the petitioners”—even if you are right, we will change judges and keep going.
an exception about a defect that will not make the sentence invalid.
exception, major dilatory
an exception about a defect that will make the sentence invalid.
an exception which destroys the claim
exception, procedural (exceptio ab extrinscico)
an exception proposed by the respondent (or petitioner?) to defend himself against the people involved in the trial or the trial’s manner of proceeding.
exception, substantiative (exceptio ab intrinsico)
an exception proposed by the repondent to defend himself against the petitioner’s claim itself.
an event or act with juridic effects; one that can change legal relationships. Juridic facts need not be voluntary or licit, e.g. death or murder.
a period of time in which a party may act, after which the right to act is extinguished.
a penalty established in law that does not automatically follow from the commission of the offense; these must be imposed.
form (of a trial)
the procedures or solemnities that are followed in the adjudication of certain matters.
the place (used in wide sense) where judicial power is exercised according to law
a founded conviction that I have a right to something and that I am not harming the rights of others by my exercises of this right. Good faith must be positive, based on some reason, and not merely negative, based on the absence of problems.
(1) of a tribunal: this is the rank of the tribunal in the hierarchy of appeal tribunals in general. (2) of an instance: this is the stage which the process has reached in the hierarchy of appeals; it is one more than the number of times this process has been appealed. Note that the grade of an instance is not always the same as the grade of tribunal which is hearing it, because some processes have their first instance at a higher grade.
the person appointed to look after the interest of a minor; normally appointed by civil authority; can be appointed by the judge in a case before his tribunal if this person is absent or not admissible; bishop can appoint one different than that of civil law for a just cause.
legal capacity; i.e. for marriage, having with no impediments.
an inability to hear a case by reason of the grade of the tribunal, the dignity of the parties, the quality of the issue, or the fact that the case is already legitimately pending before another tribunal. Absolute incompetence makes the sentence irredeemably null; the judge acts invalidly and illicitly. Thus, exceptions against absolute incompetence may be posed at any time and the judge must declare it as soon as he is aware of it. Absolute incompetence is generally not prorogated (but see 1683).
an inability to hear a case by reason of a territorial defect. Relative incompetence is sanated by the contestatio litis; the judge acts illicitly in accepting the case but the sentence is valid. Thus, exceptions against relative incompetence must be posed before the contestatio litis and the judge need not declare it after the contestatio litis. The law itself prorogates relative incompetence in some cases (e.g. 1414 on interconnected issues).
a temporary prohibition of exercising a disputed right because of probable infringement on the prevailing right of someone else.
one complete hearing of a case, beginning with citation and ending with definitive judgment. An appeal can cause one process (iudicium) to have two or more instances.
instruct a case
to conduct the procedures needed to gather all the proofs necessary to decide a case. This takes place after the definition of the question.
a title of competence which gives an otherwise relatively incompetent judge competence to judge a case that is connected to a case he is already judging, when the two cases are connected by the same material or formal object.
one who pronounces on law by their office.
a judge qualified only to judge part of a case, and under the delegation of a principle judge; this is one way of looking at auditors and assessors.
a public person who by their ecclesial jurisdiction instructs and decides a controversy according to canon law.
a lay person appointed by the bishop and permitted to serve as one of the judges in a collegial tribunal. This option is only available with the approval of the conference of bishops; they must have a canon law degree and cannot be the presiding judge.
a judge who judges alone as opposed to collegially with other judges. This is exceptional in canon law as important cases must usually be judged by a college of three.
judge, presiding (praeses)
the judge selected by the judicial vicar from the judges of a collegial tribunal to direct the development of the case and lead the collegial tribunal
a judge qualified to judge the whole case.
the power to define authoritatively which actions of the faithful are or are not in accordance with the law and the effects of those actions.
an office mandated by the code for every diocese. The judicial vicar has ordinary power to hear all cases in a diocese not reserved by the bishop and oversees the day-to-day operations of the diocesan tribunal.
judicial vicar, adjutant
an office which to assists the judicial vicar. The adjutant judicial vicar shares the judicial vicar’s power to judge but is subordinate to him.
a penalty established in law that automatically follows from the commission of the offense; these are declared, not imposed, because they have already taken hold of the person. The authority is just making this fact public.
law that establishes or declares a adjectival right
law that establishes or declares a substantial right.
an exception which not only destroys the claim but also ends the process; e.g. “this matter has already been judged by another court.”
an exception which destroys the claim but requires the process continue to declare that the claim was empty; e.g. “the contract they want me to fulfill was never valid.”
an official whose role is to authenticate documents.
object, material (of a trial)
the matter to be decided by the court.
object, formal (of a trial)
the precise claim or counterclaim made by the parties in a particular hearing. (I think this is related to the foundation in law)
‘an externally or morally imputable violation of the law, to which a canonical sanction is attached’ (ex-c 2195).
the petitioner in the first instance
the respondent in the first instance
the party analogous to the respondent in administrative recourse.
a physical or juridic person who, before a tribunal, petitions in his own name or is petitioned against, for the protection of a right which has been challenged
‘the deprivation of some good for the correction of the culprit and the punishment of the offence, inflicted by lawful authority’ (ex-c 2215); a penalty can only be given to someone who has committed an offence.
an aggregate of persons or of things which is subject of rights and duties and ordered to the purpose of the church. They can be established by the law itself or by decree by competent authority. They can act in law through their representatives.
non-physical person constituted by divine will.
1. The Catholic Church
2. The Apostolic See
3. The College of Bishops
a baptized person (can. 96). But procedural law doesn’t distinguish between the baptized and non-baptized (can. 1476). Thus, any human being.
person, public juridic
a juridic person that acts in the name of the Church.
person, private juridic
a juridic person that acts in its own name.
a person (physical, moral or juridic) recognized as having rights and duties from a legal point of view.
the party whose petition is admitted by the judge
a means or acquiring or losing rights, or of freeing oneself from obligations, by the passage of time under the conditions prescribed by law. Prescription in canon law requires good faith not only at start but for whole time (except for penal prescription).
simply a way of proceeding (modus procedendi); it can be either judicial or extra-judicial
(1) a person designated by mandate to act in the place of another. The procurator is unable to act outside of the scope of his mandate; otherwise he is seen as the person’s alter ego. Procurators are either ad lites if they are deputed to act in a trial or ad negotia if they are deputed to act in other matters. (2) the legitimately designate representative of a juridic person who acts in its behalf in judgment.
Promoter of Justice
an office mandated for every tribunal which intervenes in contentious and penal cases to provide for the public good.
1. The bishop judges when in a contentions case the public good calls for his intervention.
2. But the law itself calls for his intervention sometimes (all separation with bond remaining marriage cases).
3. Sometimes the nature of the case makes it clear the public good is involved.
4. Public good is involved in every penal case; he initiates them.
5. Public good is involved in every case alleging the nullity of marriage, but the promoter of justice is involved only when he accuses the marriage of nullity or when his intervention is important to safeguard the procedures of the trial.
a complex of acts or solemnities, prescribed by law and to be observed by public authority, for solving problems or settling business.
the old name for a penal process.
an process directed to the pursuit of a right in persona, a “something” (an action, a permission, etc.) owed to me.
a process directed to the vindication of a right in rem, a claim that something belongs to me.
a number given to each case as it is presented to the tribunal so that they can be processed in order of submission.
usually used with a technical sense. Doesn’t mean “open to the public”, but “done by public persons for the common good”, or “made available to those with an a right to be involved.”
a term of art used for judicial actions that seek rights in personam, that is, “something” (not an object) that someone else owes to me, e.g., the sacrament of marriage or the right of defense.
questions that arise during a trial which need to be resolved before the primary question can be answered, e.g., “is this document a forgery?”
an ecclesially disruptive action where judgment in the external forum is appropriate. Can be subjective: violation of natural law that is also grave, external and culpable. Can be objective: a law or judgment that is unjust and cannot be obeyed without sin. Can be an occasion of sin: a public person does something that leads others to grave sin.
the party analogous to the petitioner in administrative recourse.
the place where cases are inscribe as they arrive at the tribunal
the relationship created between two people already related by a relatio substantiva when one seeks to vindicate their rights before a judge. It has five elements, four of which are identical to the relatio substantiva while the fifth is the judge.
the relationship created among two people where a right is violated. It has four elements: the two parties, the object of the controversy, and the right the controversy is based on. In the beginning, the violation is a dubium that must be proven.
one judge of a collegial tribunal designated by the presiding judge to report about the case when the tribunal meets to decide it and to write the sentence of the tribunal.
things which are both spiritual and temporal, either by reason of their end or their nature. Examples: (by end) marriage, education of children, and murder; (by nature) a chalice or a consecrated church. The church and state both have competence over res mixta, according to the aspect under which they are considered.
res mixta inseparabilis
a rex mixta that cannot lose its spiritual character, e.g., a pious foundation.
res mixta separabilis
a res mixta that can loose its spiritual character, e.g., a church building.
things which are temporal by their end (traffic laws) or nature (a table). The state has exclusive competence over what is temporal by end, but see res mixta.
things which are spiritual by their end (a petition for an indulgence) or nature (the sacraments). The church has exclusive competence over what is spiritual by end, but see res mixta
the party cited by the judge to respond to the petition admitted by the judge.
a right that presupposed, depends on or protects another right, e.g., the right to seek redress with temporal goods are misused by the moderator of a pious foundation. Such rights are mediate and indirect.
a right conceded by natural or positive law
right, subjective (ius subjectivum)
a moral and inviolable faculty to do or not do something
a right that stands on its own and doesn't rely on another right, e.g., to life, or to have donations used in accord with the intent of the donor. Such rights are immediate and direct.
a request from one tribunal asking another tribunal to take the testimony of a person in their jurisdiction, to communicate acts to that person, or to otherwise instruct a case.
the means of making a rogatorial commission
the ordinary tribunal established by the Holy Father to receive appeals.
1. In the second instance, the Rota hears cases decided by ordinary tribunals of the first instance and brought to the Holy See by legitimate appeal.
2. In the third and further, instance the Rota hears cases that the Rota or other tribunals have decided unless the matter has become res iudicata.
3. In the first instance, the Rota hears:
a. Bishops in contentious matters (unless representing a he is juridic person subject to him).
b. Supreme moderators of religious institutes of pontifical right.
c. Abbot primate or abbot superior of a monanstic congregation
d. Cases involving dioceses and physical and juridic persons who do not have a superior below the Roman Pontiff.
e. Cases entrusted which the Roman Pontiff has called to himself moto proprio or at the request of a party. (And will do second instance as well unless rescript says otherwise.
4. Not competent for things that deal with faith (CDF), administrative matters, or acts confirmed in forma specifica by the pope.
Sanctitatis sacraementorum tutela
a moto proprio of 18 May 2001 which gave the CDF competence over serious crimes, and the ability at the request of a bishop to derogate from the prescription that normally occurs after 10 years.
1. Desecration of the Blessed Sacrament
2. Simulation of the celebration of the Mass
3. Communicatio in sacris
4. Sacrilegious consecration (against 927)
5. Absolution of an accomplice in a sin against the 6th Commandment.
6. Solicitation against 6th Commandment within or without pretext of confession
7. Direct violation of the sacramental seal (indirect added on 7 Feb 2003)
8. Offenses against the 6th Commandment committed by a cleric against a person under 18 years of age.
the temporary entrustment to a third party of a disputed object.
the temporary entrustment to a third party of assets owned by a debtor as security for a creditor.
subject, active (of a trial)
the judge or tribunal before whom the case is tried.
subject, passive (of a trial)
the petitioner or respondent whose case is being heard.
for competence, the law or canon that gives the judge jurisdiction for the case.
must be done by an interpreter appointed by judge and sworn to act rightly. Must be accompanied by written copy in original language.
a hearing, discussion, and settlement by a judge of a legal controversy which arises between a plaintiff (petitioner) and a respondent.
(1) a discussion and definition (settlement) by an ecclesiastical tribunal of a controversy in a matter in which the Church enjoys competence (NCCCL based on ex-1552p2). (2) “A process is the legitimate instruction, discussion and definition before an ecclesiastical tribunal about a matter in which the Church has the right to adjudicate, chiefly for the defense of divine and ecclesiastical law, in order that the judgment may imitate the justice of God.” (From Fathers Gordon and Hilbert).
an organ of judgment, either the judge himself or judges themselves, or more commonly, the judge together with the personnel who assist him: the notary, defender of the bond, the advocate, etc.
the Sacred Penitentiary, the Apostolic Signatura, the Roman Rota. The CDF handles serious crimes (e.g., those with sanctions reserved to the Holy See) and delicts against faith.
not competent for the privilege forum.
a tribunal with three or more judges who hear and decided the case collegially.
1. Required for contentious cases regarding the bond of Holy Orders
2. Required for contentious cases regarding the bond of Matrimony
3. Required for penal cases whose penalty can include dismissal from the clerical state.
4. Required for penal cases concerning the imposition or declaration of excommunication.
5. Some exceptions are permitted: when it is impossible to form a collegial tribunal at the diocesan level; when a documentary process is used in a marriage case.
6. Bishop may entrust more difficult and important cases to 3 or 5 judge tribunals.
competent for all cases, or for all cases not assigned to special tribunals.
a tribunal with a single judge who decides the case
competent for the privilege forum enjoyed by certain persons
competent for a certain material, e.g., marriage.
the system of rotation by which judges are assigned. Also, a give assignment according to the system.