The demand is the procedural act by which a person, who considers himself affected in his rights, initiates an action against another in order to obtain effective judicial protection. It is the procedure that initiates a legal action and must meet certain characteristics.
Demand
The demand is the document through which a legal process is initiated, in which the parties will face each other.
The lawsuit ends with a pronouncement by the judge or court. Every citizen has the right to initiate legal proceedings, however, this capacity must exist, in order to determine if they can present themselves or require representation. On the other hand, claims must be based on facts and legal norms that support the claim.
Demand requirements
The lawsuit is made up of several parts that contribute to clarifying the facts for which the petition is filed.
These are: the subjective requirements, that is, data of the plaintiff and defendant, the facts for which the claim is established, the legal grounds on which the claim is based and finally the petition.
More in detail:
subjective requirements
- Determination of the judicial body. The plaintiff must carry out an assessment to determine in which field the claim should be filed, for example, social, commercial, civil, administrative.
- Identification of the plaintiff. Your personal data, the designated attorney and the attorney involved.
- The data that is known about your identification and address where you can be summoned and summoned.
Acts
The plaintiff must detail the facts for which he seeks the judicial resolution or sentence in defense of his interests. You must also indicate in an orderly manner, the documents or instruments that you provide in relation to the facts that serve to support your claims.
In fact, it is obligatory for the plaintiff to report the facts that will be analyzed by the judge or court.
Fundamentals of law
The claim must be based on legal grounds. These can be of two kinds:
- Strictly procedural. They are the ones that explain the jurisdiction, compliance with the requirements, the type of claim that is filed and the reason for which, if possible, resolutions are requested regarding the costs of the trial.
- They are the norms or legal precepts that give the reason to the plaintiff.
Petition
Finally, the demand must clearly explain what the plaintiff is asking for. That is, what decision is expected from the judge or court, based on the law. It is a central element, since it delimits what is called the object of the process. You can include the amount of the claim.
Necessity of presentation of the demand
Prior to the presentation of the claim, that is, the implementation of the judicial apparatus, the victims have other resources that can shorten the processes and obtain satisfaction to their requirements.
They are called extrajudicial procedures. In some cases they are mandatory, such as in labor disputes, in which a mediation instance is required. In most legislations, these conciliation procedures are regulated by law and carried out by mediators registered with judicial bodies.
If the out-of-court efforts do not lead to a satisfactory result, the process begins by filing the lawsuit.
Expansion of demand
The general principle is that all the facts known at the time of filing must be alleged in the lawsuit. In some cases, the laws allow at times after the initiation, the addition of additional information or new facts.
However, the presentation and answer of the claim are those that determine the allegation of the facts and those that were not included, although they could be relevant, can no longer be alleged at a later time.
Inadmissibility of the claim
A filed claim can be rejected “in limine”, that is, at the beginning of the judicial act. However, the reasons for the rejection must be provided for by law, for example, as mentioned above, cases in which the law expressly requires prior conciliation or claims to be made.
Another cause may be when it is warned from the beginning that the claim will be rejected, to avoid a long and expensive legal process. Not to be confused with rejection for lack of items or defects.
Defects can be rectifiable or incurable. For example, irremediable defects are the lack of capacity of the parties or lack of competence. These prevent the continuation of the process.
On the other hand, those that can be corrected are defects that, once corrected, allow the procedure to continue. Among these are lack of some documents, lack of copies of the lawsuit, lack of payment of legal fees, among others.
