Unit VI: Actions
Scope Extracontractual
They hold the action of bringing an action tort, ie, those with standing are
1. direct victims or victim: who suffers an injury is susceptible of valuable consideration in matters of ownership or possession, or on their person, their rights or powers.
2. indirect victim: is any person other than the victim because of the wrongful act suffers damage to a legitimate interest, ie, protected by law. (Case of the beggar).
3. affected by the moral outrage: are the people who receive an injury to her feelings as legitimate by the offense inferred by someone. In terms of moral outrage, they only have to claim damages action relevant direct victims. However, when it comes to homicide, opens the action for compensation for moral outrage for indirect victims if they are heirs of the victim.
4. Victims of the crime of murder: regardless of what was said about the moral outrage, they are the responsible action to enforce the relevant compensation for the material, such as indirect victims.
5. Victims of the crime of insult: action the Code grants the husband for the injuries done a la mujer y a los padres por las injurias inferidas a los hijos. En esos casos se actúa en virtud de un derecho propio, independiente del que corresponde al importunado directo.
6. Damnificados por el delito de daño en las cosas: tienen acción para pretender la respectiva indemnización el propietario, el poseedor, el tenedor, el usuario o usufructuario, el acreedor hipotecario y cualquiera que tenga la cosa con obligación de responder de ella (subordinados que tienen cosas en su poder por cuenta del principal).
Bustamante Alsina agrega a esta enumeración de Llambías los acreedores de la víctima putting the action for damages against the offender or the tort by subrogation action or oblique, and assigns .
may happen that a single wrongful act resulting several victims: each and every one of them has a personal right to obtain compensation for the damage they have suffered there who hold their shares, which are independent .
On the other hand, are liable to an action for compensation for damage caused by a wrongful act, ie passive standing have the following:
1. the perpetrator.
2. advisers or accomplices.
3. The accessory to the crime (is responsible for the harmful consequences of concealment).
4. The beneficiary of the result of the offense, up to the amount that would have benefited.
5. The person liable for the act of another, or the harmful result of the things he owned or guardian.
6. universal successors are former mentioned.
When there are several responsible as authors, directors or co accomplices to a crime of a tort partners are jointly responsible.
The case for moral damages
The victim, as a creditor of the obligation to repair the damage he has suffered can, in principle the right to transmit to others through acts between living or deceased persons, their heirs or legatees.
However, if repair is the moral outrage, to the more widely considered not assignable inter vivos to be a inherent credit to the person of the victim, not being able to conceive the negotiation of the credit, because repugnant to the nature of moral interest of the creditor stipulation. Nor is transmissible to heirs repair action for moral outrage, but that had already been filed by the deceased.
Extinction
possible forms of termination of the action are as follows:
· Disclaimer: the action born of a crime is extinguished by the resignation of the persons concerned (1110). As compensation for the injury is a credit interest only to the creditor, can they shed it, because it is of particular interest at stake without affecting public order. However, as stated in Article, renunciation of the directly injured party does not affect the course of action that may belong to the husband or parents.
Regarding the influence of the waiver of civil action for criminal action and vice versa, art. 1097 maintains the independence of two actions: it is not deemed waived the civil action the offended have not tried for his life or having criminal action abandoned her, and neither is expected to renounce the criminal action for not having tried civil action or have given up on it. But if you give up civil action or make agreements on the payment of damages, it shall be waived criminal action. This referred to the crimes of private action, as in the case of crimes against public prosecutor's disposal.
· Transaction: the transaction may be about civil action for compensation for damage caused by the crime, but not criminal action, as she is at stake in public policy.
· Prescription: contractual action prescribes after 10 years and the tort at 2. The requirement is suspended when the victim is promoting a criminal complaint (17 711).
· Other cases: are the dismissal of the action or lapsing instance, when the respective action has been extinguished by prescription and the victim can not sue.
Relations between the civil action and criminal action
According to structured system Vélez civil action and criminal prosecution for the same act should be separately ventilated seat (1096). But raised this separation, independence was not absolute: for now, if the criminal action has preceded the civil action pending or is attempted it, art. 1101 provides that conviction does not fall in the civil trial before the sentencing of the accused in the criminal trial, which meant that although the procedures are independent nevertheless makes the sentencing civilian courts before the Committee of the crime. This subordination
As to sentencing is set aside if the defendant has died before being tried, or in the absence of the accused.
on the principle of independence was bitterly contested by the evidence, and the legislature echoing the criticism found in the art. 29 of the Criminal Code that the conviction in a criminal court could order compensation for material and moral damage caused to the victim, his family or a third party, noting the amount prudently by the judge. With this approach was tacitly repealed in part the art. CC 1096, admitting he could be requested by the victim compensation in criminal court, but not Judge ex officio.
Thus, the injured party may agree to claim compensation for criminal damage, if it were easy to show damage or might claim compensation for moral damage, which requires no proof. You can, however, prefer the civil jurisdiction, in the case of the claim for damages, the proof is complex because the nature of civil process got rid of the criminal matter provides more security for the full recognition of their right to compensation.
When the civil verdict was handed down for not having reported the crime to the criminal justice system, it is not affected by what would later decide on action criminal were to try: res judicata is . Unless this possibility should study what happens when both actions were processed in parallel, in either jurisdiction.
Influence between criminal conviction and civil
Since both processes coexist can be seen operating the principle of independence laid down in Article 1096. The criminal process is, however, a decisive preponderance over the civil process, because of the influence of res judicata in that the decision to be delivered in the latter.
The principle established in Art. 1101: "If the criminal action has preceded the civil action, or was attempted it yet, there is no condemnation in the civil trial before sentencing the defendant in the criminal trial, except the following cases:
1. If the defendant has died before being tried criminal action, in which case the civil action can be attempted or continued against the respective heirs.
2. In the absence of the accused .... "
3. Art. 76 quater of the Criminal Code also provides the assumption of "Probation."
addition, art. Bis 3982 requires that the victim had just deducted complaint to produce the prescription of the civil action.
also
Effect of criminal conviction on civil
If conviction, Article 1102 states that "After the condemnation of the accused in criminal trial can not be answered in the civil trial the existence of the principal fact which constitutes the crime, or contest the guilt of the condemned. "
Consequently, if the criminal court considers that there has been a crime, not after the renewed civil matter by the claim of lack of it. Nor can it be renewed in a civil proceeding the question of the guilt of the perpetrator that was recognized in the criminal process.
Instead, the criminal sentence does not res judicata as to all other matters relating to existence and amount of damages, which are not proper matter of the decision. That is, the author can plead and prove in a civil contributory negligence of the victim, who can reduce their liability for compensation for damages.
of acquittal shop in criminal court, article 1103 provides that "After the acquittal of the accused can not be either in the civil lawsuit alleging the existence of the principal on which the acquittal had fallen."
Thus, the criminal sentence states that the fact of the crime did not exist, which can not be discussed again in the civil case of its existence. For example, if the trial judge stated in the acquittal that the owner of a thing was not deprived of it, it will definitely true that there was no crime of theft. This led for a time he thought that acquitted the accused in criminal headquarters, could no longer plead guilty in civil proceedings.
But the case law held that the acquittal in the criminal courts, not the effect of res judicata in a civil proceeding with respect to the guilt of the accused. Consequently, after the acquittal of the accused in criminal proceedings, may be discussed in the civil trial of guilty and be sentenced as an author of a tort to pay compensation for damages for that fact. This is so because criminal guilt is judged rigorously and is not supported in case of doubt "in dubio pro reo," which is different from civil fault, which is judged with an open, pro-victim.
Llambías understand that a dismissal is equivalent to an acquittal, the record closes on the ground that no sufficient evidentiary items to pass the case to the next stage of criminal proceedings. However, Bustamante Alsina believes that the dismissal does not res judicata in civil, or even if it were based on the absence of the very fact that underlies the action for damages. That is, the dismissal is not equivalent to acquittal, in terms of their effects on civil action.
Influence of the civil verdict on the criminal
Conversely to what occurs with the criminal sentence on the civil process, the one issued in the latter is not exercised, in principle, influence upon it. In general, solving the judge in a civil proceeding is irrelevant to the resolution of the criminal case, with respect to crime, the intervention of the defendant and his criminal responsibility. Exceptionally
the civil verdict in the criminal influence in so-called " questions." Article 1104 provides that "If the criminal action depended on negative issues whose decision falls exclusively to the civil trial, no conviction in the criminal trial before the sentence has been in jeopardy. The questions are only the following:
1. Versare Those on the validity or nullity of marriage (for example if someone is charged with felony bigamy and the defendant alleges the nullity of previous marriage).
2. Versare Those on the classification of the failures of traders. " This course is repealed by art. 234 of the Bankruptcy Law No. 24,522 established a disqualification of the bankrupt is given from the date of bankruptcy.
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