The complaint appeal is an extraordinary means of challenge available to the parties in a judicial process in the event of inadmissibility of resources.
This remedy is a legal remedy by which the parties try to admit an appeal, which has been rejected by the court before which it is prepared. On the other hand, this court that rejects the appeal is not the one that is going to decide it but its hierarchical superior.
Where is this appeal filed? Who solves it? This appeal is considered non-refundable, that is, it is filed before the same judicial body that issued the inadmissibility of another appeal. Likewise, it is resolved by that body that issued the appealed resolution. Therefore, unlike other resources, such as the appeal, it will not be a higher court who decides this appeal.
On the other hand, the judicial decisions that are appealed through this legal remedy must be inadmissible of repayable resources. For example, a complaint may be lodged if an appeal (return) is inadmissible. On the other hand, a complaint cannot be lodged if what is inadmissible is an appeal for reconsideration (non-refundable).
The procedure for this appeal has three phases.
- Preparation: Before the judicial body that issued the resolution rejecting another appeal.
- Filing: Before the judicial body superior to the court that issued the resolution that we are challenging with the complaint appeal.
- Substantiation: Who resolves this appeal is the higher hierarchical court.
Example of complaint remedy
To better understand this resource, let's see an example:
- "A" files a lawsuit against "B" for "B" to pay a debt that he contracted with "A".
- The court of first instance decides in favor of "B" indicating that there is no debt with "A".
- “A” wants to appeal and files an appeal before the court of first instance.
- The court of first instance rejects this appeal for processing, that is, it will not even be heard by the court of appeal.
- "A" wants to continue with that appeal and, therefore, files the complaint appeal before that court of first instance.
- If the appeal is admitted, the appeal in turn will be admitted, and the appeal court may decide again on the debt of "A".
- If the appeal is not admitted, the appeal will not be admitted, and the decision of the court of first instance cannot be discussed: that "B" has no debt with "A".
The main effects will depend on whether the court's resolution is favorable or unfavorable:
- The complaint is dismissed: The resolution that rejected the main appeal (appeal or cassation) is confirmed and, therefore, you will no longer be able to appeal in that procedure.
- The complaint is upheld: It is confirmed that the resolution that rejected the main appeal (appeal or cassation) was wrongly denied and, therefore, the main appeal must be admitted for processing.
What can be the subject of an appeal for reconsideration?
Not all judicial decisions can be appealed through this resource. The resolutions that may be the subject of this appeal are:
- Inadmissions of appeals.
- Inadmissions of appeal.
- Inadmissions of appeal of procedural infringement.
- The denial of the motion for reconsideration cannot be appealed.
In summary, the resolutions that can be appealed by means of a complaint appeal are exclusively the inadmissions that prevent the higher hierarchical court from hearing an appeal. This means that the complaint resource is a means of instrumental or accessory challenge to another main resource.
Characteristics of the complaint resource
The basic characteristics of this resource are:
- It does not influence the resolution of the lawsuit.
- It is accessory or instrumental in nature. It has a marked procedural character, since it does not allege new rights but simply the erroneous denial of being able to appeal a resolution.
- It can be brought before all jurisdictions: criminal, civil, labor, etc.
- It does not produce suspensive effects in the appealed resolution.
- It can only be used by the parts of the process.
- It has a returning character.
- The regulation of this resource is established in the procedural law.
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