Civil Procedural Reform in matter of abatement of the instance and sua sponte
It is well known among Mexicans that, throughout its history, the judicial system of our country has not been fortunate enough to be characterized by these qualities further than theory. In practice, litigation has always been synonymous with a long and overwhelming contest, which has led the population to devote years – or even decades – to the task of concluding a dispute, and sometimes to choose not to exercise an action or right in order to save themselves time, effort and money.
And although the population may find this circumstance frustrating, for lawyers it is all in a day’s work. From the inevitable pressure exerted by the client, to the frustration due to the lack of significant progress in a case, the gradual nature of the Mexican judicial process makes advocacy in our country one of the most demanding jobs.
Generally, the population attributes this problem to the inexperience or idleness of the authorities. However, the problem goes beyond, since one of the main and most significant causes is the lack of a mechanism to expedite cases, especially those which last for months or years without any proceeding, and which not only mean a greater workload for the courts, but also a legal and economic uncertainty for the people subject to them, since the issues remain open indefinitely even if a long period without proceedings elapses.
Fortunately, on May 24th, 2016, a series of amendments to the Code on Civil Procedures in the State was published in the Official Gazette of the Government of the State of San Luis Potosi, which seeks to achieve promptness in the processes which each year clutter the shelves of our courts.
It is important to emphasized two figures in this reform: the abatement of the instance, which enables the possibility to conclude of a process due to lack of activity attributable to the parties, and the ex officio actions by the authority, which allow the authority to proceed in several procedural moments where previously the request of one of the parties was needed for its continuity.
It is important to note the difference between limitation (prescripción) and abatement (caducidad) in Mexico. Unlike limitation, which means the termination of the opportunity to claim a subjective right, the abatement only concludes an action that has been sought to be enforced but that over time has been left without any activity, however preserving the right of the plaintiff to be able to submit a claim for such right in a new instance. In short, rights lapse due to limitation and the instances abate.
Among the peculiarities of this reform, one of the most interesting is the possibility for the defendant’s pleas and defenses which were accredited in an outdated process to persist and to be enforced in a subsequent process, regarding the same subjective right of the plaintiff which exercises it in a new instance. This allows a quicker reply to the claim and statement of defense phase, significantly shortening the duration of the new instance, since the defenses which are of “prior and special pronouncement” (excepciones de previo y especial pronunciamiento) require the procedure to stop until its resolution.
Another notable feature of this reform is the granting of power to the courts of appeal to restore a trial to remedy a violation of fundamental laws of procedure which are noticed when a final judgment is appealed. Previously, even when such violations were evident, the courts of appeal were not authorized to restore the trial and the interested party had to resort to the writ of Amparo to enforce their rights, which was biased, tedious and added a couple of months to the process.
These reforms are an important step towards a prompt and expeditious justice, since they not only serve as a way to abate hundreds of procedures that are open for years, but also forces both parties and their lawyers to be committed to giving fluency and urgency in each case, achieving its conclusion in an adequate and efficient time, and allowing the courts a more optimal work.
EAB.
