Precautionary measures (civil process)

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Precautionary measures are provisional resolutions that serve to guarantee and ensure the claim of one of the parties to the trial.

In this case, the precautionary measures in the civil process are studied since they differ from the precautionary measures in the criminal process.

The main function of these precautionary measures is to prevent the opposing party of the trial from hindering the execution of the final resolution of the trial, that is, the sentence.

Characteristics

The main characteristics of the precautionary measures are the following:

  • Instrumentality: Precautionary measures are an instrument. That is, a means to achieve the purpose of the judicial process, which is to enforce the sentence. They are accessory to the process.
  • Homogeneity: Measurements must be homogeneous to the main process. In other words, they must be exclusively adequate for the assurance of what is intended to be achieved in court.
  • Proportionality: The precautionary measures must be correlated with what is intended in the judicial process, it must be proportional to the result sought, thus avoiding unnecessary limitation of rights to the opposing party.
  • Validity of the operative principle: This means that the precautionary measures are adopted by the judge, but because they have been requested by the party. They are not adopted at the request of the judge, except those of special processes.
  • Provisionality: The precautionary measures are temporary, provisional and subject to modification.
  • Numerus apertus: This Latin word means that there is no closed number of precautionary measures, but rather that it has an open character and can be any action that ensures the execution of the sentence.

Requirements for precautionary measures in civil proceedings

There must be three assumptions for the precautionary measures to be agreed:

  • Danger due to procedural delay: This means the actual risk that the duration of the process will cause the sentence not to be executed. It must be a danger justified by the applicant claiming specific situations.
  • Appearance of good law: Whoever requests the precautionary measure has to justify the probability of success of his claim that is the origin of the trial. This means that the applicant must show that his claim is likely to win the trial by sufficient evidence.
  • Surety: Requires the applicant for the precautionary measure to provide a bond to guarantee compensation for damages to the person who supports that precautionary measure if the applicant's claim is finally rejected in court.

Types of precautionary measures

Although the precautionary measures are not fixed, we can highlight the most used are the following:

  1. Lien of assets.
  2. Intervention or judicial administration of productive assets.
  3. Judicial deposit: It is usually used when the object of the trial is a movable thing and it remains at the disposal of the judicial dependencies until it is resolved.
  4. Inventory of goods.
  5. Annotation in the Registry to advertise.
  6. Court orders of cessation, abstention or prohibition.
  7. Suspension of corporate agreements.

Example

Lawsuit for non-payment of debt. Party A requests payment of the debt and Party B does not want to pay the debt.

In this case, a precautionary measure would be for Party A to request the seizure of some property of Party B to ensure that in the event that the judge dictates a judgment in their favor, that debt that they have with B can be paid, thus avoiding that B can sell that good by making it disappear.

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