Wednesday, March 18, 2009

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2.10 Assumptions:

According Hernán Pagan Town, in civil proceedings, the presumption is the result of reasoning by which a known fact (evidence) we conclude logically another fact unknown or unproven. The presumption is a mental operation that consists of three elements: a prior event known or proven to be the antecedent (evidence), reasoning (legal or judicial) and a conclusion, that is, a fact that is presumed true. The presumption is to replace the lack of direct evidence. It is of great importance in cases of simulation and fraud.


The assumptions are tested when we had the character to be serious, precise and consistent and have a connection with the fact that it comes out. So what are the assumptions that are tested and meet the characters mentioned? To answer this question we must mention that there are two kinds of assumptions: one determined by the law, which called legal presumption or law and another that is the judge, on the circumstances, background, simultaneous with or subsequent to the main fact under consideration, and is called the presumption of man ( judicial presumption ). The first (legal presumption) is of two kinds, it has that degree of force against it is not supported test, and then called presumption juris et de jure , law and right, or only considered certain until proven otherwise, and in this case is called rebuttable presumption ( Dian Albrecht "Basic Legal Dictionary - Partly Referenced" ).


judicial presumptions:

are

which the judge states, according to the rules of sound criticism.


Legal Presumptions:

are those established by law. Some of them are presented in the following cases:

- not answer the complaint. (Assumption: it presumes that the facts mentioned in the application and, therefore, are recognized as true those facts).

- Answer the complaint but presenting silent or evasive about some facts of the case. (Assumption: the silence and evasive answer on facts of the case are recognized as true by the defendant).

- not attend the hearing of Interrogatories and not justified. (Results Presumption: it had to confess).

- not appear for the hearing of collation of documents or refuse to sign. (Results Presumption: it is recognized the document).

- not appear and not leave questioning a witness who gave oral evidence. (Results Presumption: it is withdrawing the test. Art. 325 CPC).

- No go (the control) without just cause and the hearing of witnesses when the load of your citation has taken part. (Outcome Presumption of : it shall be given up to the offeror. Article 322 CPC).


Source:

- ALBRECHT, Dian (2008), "Ordinary Knowledge Process. Manual " . Ed Marben, Asuncion - Paraguay.

- ALBRECHT, Dian (2008), "Basic Legal Dictionary. Referenced in part " . Ed Marben, Asuncion - Paraguay.

- CASCO PAGANO, Hernán (2000), "Code of Civil Procedure. Reviewed " . Ed Paraguayan Law , Asuncion - Paraguay.




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Saturday, February 28, 2009

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3. DECISION-PHASE - CONCLUSION OF THE CASE FOR FINAL

This is the last phase of the "ordinary knowledge process (one that has no special regulation, such as eviction, a court order or marital dissolution than are judgments that are processed by specific" special procedures "). At this stage the tests are added to the file, then the parties present their respective arguments or, failing that, have the power to request the suspension of the deadline for claiming, after the judge made the call statement to cars, finally, conclude with the final decision.


Source: ALBRECHT, Dian (2008), "Ordinary Knowledge Process. Manual " . Ed Marben, Asuncion - Paraguay.


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3.1 Proceedings after the opening of the case to trial:

How the process continues once the probation period? Under Article 379 provides that a after the conclusion of the evidentiary phase will complete the following steps before concluding the cause:


- notebooks will be added to the main file of evidence, and


- The parties may argue the merits of the evidence produced.


Source: ALBRECHT, Dian (2008), "Process Regular Knowledge. Manual " . Ed Marben, Asuncion - Paraguay.


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3.2 Aggregation of evidence. Allegations:


Once the trial period, Article 379 of the CPC requires the judge and the secretary obren automatically for his own personal initiative. The Secretary shall prepare a report on the evidence that has occurred, and the judge shall make an order, ordering the aggregation test the notebooks of the parties and the related report of the secretary to the original file.


Article 379 .- Aggregation of evidence. Allegations. If proof was produced, the judge, without any management of stakeholders, or without substances if it is done, order in a single ruling to be added to the file test booklets with the certificate of the secretary on which has occurred .

this is done, the secretary submit the case to the lawyers, by order and for a period of six days each, without written request and under his responsibility, to submit if they think proper, a brief arguing the merits of the test. Be considered as a single party to those acting under joint representation. The deadline for submitting claim is individual. The representative may request that it be kept confidential until all parties have submitted theirs.


The allegations are the writings conclusion in which the lawyers of the respective parties make the reasons that underlie the claim and right of the grantor, challenging to the party. Once the process of aggregation of evidence with the report of the secretary, he delivered the dossier to the lawyers without written request and under the responsibility of the same by order and for a period of six days so that if they deem should submit their letter of allegation


Source: ALBRECHT, Dian (2008), "Ordinary Knowledge Process. Manual " . Ed Marben, Asuncion - Paraguay.


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3.3 Suspension of time to argue:

The suspension of the deadline for claiming the parties may apply as long as "the party who applied for meets the regulations of Section 267 (having demonstrated diligence in offering and production of evidence). Order being transferred to the other party, for a period of three days. Is governed by Section 380 of CPC.


Source: ALBRECHT, Dian (2008), "Ordinary Knowledge Process. Manual " . Ed Marben, Asuncion - Paraguay.


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