Commentario al codice di procedura civile - vol. 5 (Italian Edition)

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Engelmann , A History , op. Marcus containing various source materials on Roman cross-examination. Cappelletti , op. Modern European studies on the psychology of witnesses, for example, F. See 8. Party statements so rendered must be credited by the court even if the party is subsequently convicted of perjury. In classic Roman procedure, such oaths had been used only as private means of settlements and not as proof devices. Many civil law systems of procedure, including those of Italy, France, Spain, and Holland, still adhere to the rule that a party may not testify but that the court must accept his statement under oath as conclusive proof.

The illogical nature of these archaic rules is all the more striking, since the party who takes the oath is advised of the content of the oath well in advance. On the historical evolution of party oaths, see E. Greenidge , op.

In this guide

On the origin of the jus praetorium , which was fully developed by the middle of the second century B. Arangio-Ruiz , Storia , op. Pringsheim , op. Buckland , Praetor and Chancellor , 13 Tul. See also 2 J. Campbell Arangio-Ruiz , Istituzioni di diritto romano 3, —35 Napoli, Jovene 14th ed. Austin , op. No action could be brought unless the claim could be expressed in the terms of one of the formulae set out in the Edict, except indeed that the Praetor could and did allow formulae not quite covered by existing writs by allowing formulae which may be described as in consimili casu.

The gradual accretions to the Edict in the end of the Republic, and to some extent later, till the crystallization of the Edict by Julian, correspond to the steady enlargement of the Registrum. But see G. As to the Alice-in-Wonderland nature of the pleadings in ejectment, which the Romans might well have understood, see B. Shipman , Common Law Pleadings —75 St. Paul, West, 3d ed. Ballantine See also R.

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Millar , Civil Procedure , op. Brunyate Scialoja , Procedura civile romana 69 et seq. Roma, Anonima Romana Editoriale For similarities in this regard between the Roman and common law systems see H. Perhaps the first to understand the importance of the dissimilarity in this regard between modern civil law and Roman law was B. For a similar analysis of the common law, see F. Article 24, para. See also W. Schulz , op. The same might be said of the common law. Schulz , supra , at Maitland , op. Calamandrei , Processo e democrazia 39 [Padova, Cedam, ], translated into English sub tit.

Procedure and Democracy 16—17 [] , is not attributable to a lack of interest in procedure, but to the fact that substantive law is studied in terms of rights of action. See also G. Baratta trans. With particular reference to the resemblance between modern Italian and post-classic Roman procedures, see B. For a study of the libellary procedure, the last stage in the development of the extraordinaria cognitio at the time of Justinian , see P. Clark , op. Maitland, Equity , op. Compare the abolition of the forms of action in common law jurisdictions in the 19th and 20th centuries. Maitland, The Forms of Action , op.

The merger of law and equity in the 19th and 20th centuries was an equivalent development. See W. Costa , Profilo storico del processo civile romano et seq. Munchen, Hueber , translated into Italian sub tit. Istituzioni di procedura civile romana et seq. Institutes of the Roman Law of Civil Procedure et seq. Among the more recent studies are G. Rivista internazionale di diritto romano e antico 1 ; M. Chiovenda , Istituzioni di diritto processuale civile 95—96 Napoli, Jovene 2d ed. Engelman , op. The studies of Chiovenda, from Romanesimo e Germanesimo nel processo civile , written in republished in 1 G.

For a general study of procedure in Italy from the sixth to the twelfth centuries, see 1 G. See also A. See id. When the cities of Lombardy, under the protection of the imperial rule, came to free themselves from their feudal overlords and attain municipal independence, when trade and commerce grew again to a flourishing condition and brought to these cities and their industrious burghers riches, power, and esteem, the Germanic law, emanating, as it had from the simple social relations of a primitive people, proved wholly inadequate to meet the new order of things, and the need was for a legal system of advanced development.

Chiovenda , Istituzioni , op. For the history of procedure in Italy from the 13th to the 19th century, see 2 G. Classic Roman substantive law and procedure were rediscovered only in the nineteenth and twentieth centuries. Their sensitivity to the needs of the day is easily explained. Among the most important scholars in the field of procedure were: in the twelfth century Bulgarus, Placentinus, Johannes Bassianus, Otto Papiensis and Pillius Medicinensis; in the thirteenth century, Azo, Tancredus, Gratia, Damasus, Innocentius IV, Hostiensis and particularly Wilhelmus Durantis; and in the fourteenth century, the commentators Bartolus and Baldus.

On the jus commune , see F. The last important systematic study of the jus commune procedure, as it was in effect in Germany until , is G. Wetzell , System des ordentlichen Civil-processes Leipzig, Tauchnitz 3d ed. Goldschmidt and E. Kern quoted in M. For a criticisn of archaic relics of this system in modern procedure, with particular emphasis on the testimony of parties and interested third persons, see M. The duel was generally fought by sword between freemen and by club between serfs.

On the transformation of the concept of testimony, especially under the impact of the legislation of Italian city-states 13th—14th century , see H. Himstedt , Die neuen Rechts-gedanken im Zeugenbeweis des oberitalienischen Stadtrechtprozesses des For the most part, peremptory stages were established without regard to the exigencies of particular cases, often creating snares for the unwary. Chiovenda, Istituzioni , op. Fifteen of these terms, on an average, were requisite Any deviation on the part of the judge from this sequence of terms, even the consolidation of two or more of them, was a ground of nullity affecting the whole proceeding.

Even in this respect, the departure from classic Roman procedure was radical. Decretals of Gregory IX, lib. II, tit.

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XX de testibus et attestationibus, cap. The rule with its exception was reaffirmed, for example, in France by Jacobus Cujacius in the 16th century in his commentary on the decretals, and once again by Pothier on the eve of the French Revolution. Thus, a husband was unable to obtain a divorce on the ground of adultery, even though he discovered his wife in the very act, because he only had one witness with him — the maid. On some occasions, five witnesses are required. At one time, seven eye witnesses were needed to prove the unchastity of a cardinal.

Greenleaf justly refuses to import such principles into the United States as contrary to the genius of American institutions. In the Speculum juris of Wilhelmus Durantis written , 2d. Speculi Gulielmi Durandi Pars Prima , lib. IV de teste —32 Venezia Damasus summarized the requisities of a witness in a couplet: conditio, sexus, aetas, discretio, fama et fortuna, fides; in testibus ista requiras.

See also E. Couture , Estudios de derecho procesal civil —98 Buenos Aires, Ediar Contrast the rescript of the Emperor Hadrian — A. The principle of documentation is explained in a decretal of Pope Innocent III as a means of protecting the innocens litigator against the iniquity, arbitrariness, and partiality of judges.

See Decretals of Gregory IX, lib. XIX de probationibus, cap. In classic Roman law, the judex could consider hearsay and was free to evaluate evidence as he saw fit. He could also refuse to come to a decision if he could not form a conviction as to the facts in issue. Pugliese , La prova nel processo romano classico , XI Jus Even at the time of Arcadius circa A. Digesta Chiovenda, Romanesimo e Germanesimo, op. Scialoja , op. Morrison, op. Fundamental to the study of the summary procedure of the era is H. The Clementine Saepe dispensed with the libel, the formalities of the litis contestatio and, most importantly, the rigid succession of stages.

It looked towards a more concentrated proceeding, encouraging orality, and direct contact between judge and parties. Sella , Il procedimento civile nellalegislazione statut aria italiana Milano, Hoepli Himstedt , op. The Prussian legislation of Frederick the Great, who had secured the services of brilliant jurists such as Samuel von Cocceji, introduced major innovations.

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However, this legislation did not endure for long. Until the nineteenth century, few significant contributions to procedural scholarship emanated from Italy. One great exception was F. Barbacovi whose proposed code of , adopted by the Principality of Trent in , contained some of the ideas that were to be the basis of the Austrian Code which was drafted primarily by Franz Klein, and probably still is the most modern code in Europe.

In , the more backward Austrian allgemeine Gerichtsordnung of was imposed in Trent, as it had been in Lombardy and Venetia Before the revolution, judicial office was often a property right. Feudal judgeships were hereditary; royal judgeships, formerly sold to the highest bidder, had also become hereditary. Judges were among the more rabid opponents of the revolution and many paid for their opposition at the guillotine. The abolition was not complete.

For example, the decisory oath remains in force in France, and numerous exclusionary rules continue to affect testimonial evidence. Only recently by the law of , confirmed in has the interrogatoire sur faits et articles , derived from the interrogatio per positiones of the Romano-canonical procedure, been a-bolished.

Diritto processuale civile - Video Lezione n.1: L'attività giurisdizionale

The antiquated system of disqualifying witnesses for reasons such as relationship to a party or prior criminal record against which Voltaire had f utilely inveighed, was partially eliminated by the law of Pothier Nos. Dupin ; M. For further illustrations and references, see 2 M. Much more radical innovations had been introduced by revolutionary legislation. The trend followed by the legislators extending the procedure in chambers to contentious matters has not been well received by scholars, who have emphasized the dangers this choice could bring about in the judicial enforcement of the right of action and its procedural applications, either enshrined in the Constitution or implied by the constitutional rules on the guarantee of due process.

Defense is an inviolable right at every stage and instance of legal proceedings. The poor are entitled by law to proper means for action or defense in all courts. The law shall define the conditions and forms of reparation in case of judicial errors. All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party position.

The law provides for the reasonable duration of trials.

This rule can only be waived in cases of sentences by military tribunals in time of war. Appeals to the Court of Cassation against decisions of the Council of State and the Court of Accounts are permitted only for reasons of jurisdiction. Among the most significant and recent contributions to the debate, see Carratta, A. The idea underlying the statute was to reduce the special proceedings to only three procedural models already existing in the Code of Civil Procedure, that is, the ordinary proceeding, the proceeding in labor cases, and the summary proceeding.

Unfortunately, not all special proceedings were taken into consideration, but only the ones regarding contentious matters and governed by specific statutes; other exceptions were contemplated, for instance as regards family law, consumer law, and intellectual property IP law. It seems superfluous to elaborate any further on the absurdity and uselessness of such an effort, whose positive outcomes have yet to be proven. Even though the statute on simplification has affected some proceedings that originally took place in chambers for instance, the ones concerning immigration law , nothing has changed in the arrangement of Book Four of the Code of Civil Procedure, in which a disparate variety of special proceedings continue to coexist as strange bedfellows.


It is difficult to foresee whether in the near future more attention will be devoted by Italian legislators to non-contentious jurisdiction so as to lay down rules that are uniform and consistent. In recent decades, Italian civil procedure has been re-written again and again in the attempt to solve the most serious and enduring problem of the justice system, namely, the excessive length of proceedings.

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The uncertainties of the political landscape and the continuing serious economic crisis affecting the country make it unlikely that the spotlight will shine again on non-contentious matters any time soon, since the situation is much more dramatic in other aspects of civil justice, that is, in ordinary proceedings and in enforcement proceedings. In the meantime, Italian scholars, who are often more interested in strictly theoretical issues than in the daily problems of judicial administration, will keep on chasing the 16 The statute referred to in the text is statute no.

For an extensive commentary, see Carratta, A. Drawing inspiration from this thought, this author thinks that both scholars and legislators should set aside any concerns about the true nature of non- contentious jurisdiction and address a more mundane issue: whether or not, in light of the present situation of Italian courts, overloaded with cases and lacking human and material resources, it still makes sense to entrust the judiciary with duties that — where the conflict between private individuals is over matters devoid of any public interest — could be discharged hopefully in a more efficient and less time-consuming way by administrative authorities.

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