Algunas vicisitudes del proceso monitorio en Colombia: una visión desde la academia
Introduction: This article is the result of research carried out by the research incubator of Procedural Law of the Bucaramanga Campus of the Universidad Cooperativa de Colom- bia ( ucc). Methodology : Analysis of certain aspects of the new small claims procedure for declaratory judgment, which...
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| Main Authors: | , , |
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| Format: | Article |
| Language: | Spanish |
| Published: |
2016
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6798808 |
| Source: | DIXI, ISSN 0124-7255, Nº. 24, 2016 |
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| Summary: |
Introduction:
This article is the result of research carried out by the research incubator of
Procedural Law of the Bucaramanga Campus of the Universidad Cooperativa de Colom-
bia (
ucc).
Methodology
: Analysis of certain aspects of the new small claims procedure for
declaratory judgment, which the General Procedure Code (cgp by its Spanish initials)
successfully introduced into the legal system. These aspects are related to type, good faith
of the creditor, exhaustion of procedural requirements, and propriety of interim measures.
The analysis was performed pursuant to Articles 419 to 421 and 590 of the cgp
, Law 640 of
2001, Decision C-726 of 2014 of the Constitutional Court of Colombia, and Calamandrei’s
theory on small claims procedure.
Results:
The legislature has shown the same procedural
treatment to both pure and documentary small claims procedure, contrary to Calaman-
drei’s theory; the admission of pure small claims procedure implies that the judge supports
the requirement of good faith payment to the creditor. In accordance with the norms on
pre-trial conciliation, to initiate a small claims procedure classified as special declaratory,
the plaintiff must prove compliance with the procedural requirements, that is, provide
proof of having exhausted the attempt at conciliation. However, the plaintiff may substitute
this with the request for and, logically, with the propriety of an interim measure, for which
security must be furnished.
Conclusions
: In small claims procedure, the plaintiff must pro-
vide proof of having exhausted procedural requirements. Finding an innominate measure
in the context of small claims procedure with a view to guaranteeing the effectiveness of
the right to credence will be a difficult task. |
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