Oral proceedings following the reform of the Civil Procedure Act

Written on 19 Jan 2016

Act 42/2015, of 5 October, reforms the Civil Procedure Act 1/2000, definitely defining and structuring the evolution of the rules and regulations undergone by oral proceedings over recent years, thus managing to solve the lack of balance that existed between the parties in the process. 

The first of the characteristics of the new regulation of oral proceedings lies specifically in the written reply to the lawsuit. In this sense, article 437 of the new Civil Procedure Act sets out that the oral proceedings shall start per lawsuit, with the contents and form typical of ordinary proceedings, the allegations and on-going lawsuits prepared for such proceedings also being applicable. On the other hand, article 438 of the aforementioned legal text clearly states that the Court Clerk, once the lawsuit is examined and if it is admitted, will transfer it to the defendant so he may provide his answer in writing within a period of ten days.

Therefore, under the new regulation of the Civil Procedure Act, the defendant now has twenty days to answer the ordinary proceedings lawsuit, but if he does the equivalent in oral proceedings, he will only have ten days. The Statement of Reasons of the new Civil Procedure Act attempts to justify the granting of this brief period of time because it associates oral proceedings to certain special procedures.

Another main innovation appears in point 4 of article 438 of the Civil Procedure Act, which includes the possibility of not holding the hearing. In this respect, in the defendant’s answer, he will necessarily have to pronounce on the pertinence of holding the hearing. In addition, the defendant shall declare his viewpoint within the term of three days from the transfer of the written answer. With this regulation, the Judge may pronounce his sentence with no kind of orality, with a written lawsuit and answer. Notwithstanding this, only one of the two parties has to request an oral hearing for it to be held.

Regarding the development of the hearing, regulated by article 443 of the Civil Procedure Act, it differs little from that of the ordinary proceedings (with the exception of a preliminary hearing, non-existing in oral proceedings). Therefore, firstly and once an agreement between the parties has been attempted, the questions and allegations that may prevent the valid prosecution of the procedure will be resolved. Once the resolution of the procedural questions is overcome, the in-depth matter of settling controversial facts and proposing proof of the same is dealt with.

In relation to the proposal of proof, the Civil Procedure Act includes and regulates the “written proposal” that reflects the proposed proof in writing as well as any questions that may help the party to convince the Judge of its pertinence. Although the notice of written proposals being presented was already common, the new regulation expressly includes the parties’ obligation to submit written proposals of proof. However, neglect to submit written proposals will not lead to the non-admission of the proof, this being conditioned to it being submitted within the period of two working days.

Finally, worthy of mention is the possibility foreseen of including the formality of conclusions. Although the former regulations of the Civil Procedure Act did not specifically foresee this formality, the fact is that some judges ended up granting a few minutes for the valuation of the proof. However, the new oral proceedings definitively include this possibility, although it must be the Judge who considers it necessary whether it is granted or not.