the evidence 
Law and Social Change
ARTIFICIAL MEANS THE PROOF
Pedro Donaires
Sanchez *
INTRODUCTION
SENTIS Melendes said the teacher [1], which is full proof that a full conviction of the judge, convinced that it is necessary to resolve definitively. But it is not always possible to have conclusive proof. If so, will the judge to administer justice? No, the judge can not help but sentence. Must exhaust all possibilities of evidential activity. One such possibility is the use of substitutes for evidence.
In our environment, the teacher PALACIOS WALLS [2], part of the idea that the evidence is direct and indirect. Is straightforward, where the means of evidence shows the judge made the same test. Is indirect, when you display a different fact but provides data or materials from which the judge makes an argument, a critical-to infer the existence or occurrence actually tested. Substitutes under the latter.
The term 'non liquet' [3], the Roman judge apologized to resolve a particular dispute. The contemporary judge can not do that, you have to exhaust all possible means to resolve the conflict, otherwise it would cease to be a judge.
The sentence combines factual and legal elements. The legal the need to know in advance: iura novit curia, the facts are provided by the parties, but the judge must set them using the evidence direct or indirect, full and / or not full.
Ideally, the facts are established with the assistance of the evidence, but if they are missing, should be made use of substitutes.
With the evidence the judge finds the truth of the facts and based on this result, acquired the conviction that will support your decision. When this is not possible, must comply with the certainty that provide substitutes and thus achieve some degree of conviction. By analogy, the teacher SENTIS Melendes says in his cited work that the truth is like the coffee that you take with satisfaction, while perhaps not certain transformation from chicory (used to make a concoction that somehow makes up the bar).
substitutes, with which we console ourselves in the absence of full or direct forms of evidence are also forms of evidence in some way, because if it were not so, would not support a judicial decision. Hence the importance of the evidence and substitutes.
regard, the teacher wrote TRAZEGNIES GRANDA [4], highlighting the importance of testing as a cornerstone of legal reasoning. The proof, he says, is an aspect fundamental law because it is their connection with reality. The law would not be without evidence but a sort of abstract mathematics or a fictional story. The test does earthly law, gives him a share of the world of men. But it does so directly, because a perfectly consistent and ideal law, but applied blindly or no correlation with reality, it would be unjust.
WHAT IS ARTIFICIAL? Substitute
, Carnelutti concept established by [5], as distinct piece of evidence. According to the classical author, was the German doctrine that developed the concept of surrogate testing in antithesis to the concept of environment test. In his view, there is no such antithesis, therefore, argues that only these two concepts of the test.
In the Larousse [6], we find the following: Describes a substance that can replace or substitute for another, and is generally of lower quality. For the teacher
SENTIS Melendes [7]: "For proof substitute procedural understand those manifestations, the absence of proof or publicizing them, give us the possibility of imposing or as the basis for the sentence, not a factual are the result of a test but, more accurately, lack thereof or a special manifestation of it. "
in the Code of Civil Procedure [8], is expressed as follows:
'aid substitutes are established by law or assumed by the court to achieve the purpose of the evidence, confirming, complementing or replacing the value or extent of these '.
Of these contributions, by way of summary, we conclude that 'the substitutes are those manifestations of proceedings provided by law or assumed by the court to supply the evidence and reach their goal. "
WHAT ARE THE SUBSTITUTES?
Civil Procedure Code [9], that are substitutes for the evidence the following:
1. The evidence.
2.La legal presumption and judicial and legal fiction
3.La
. Professor WALLS
PALACIOS [10], disagrees with the approach of considering the evidence only as a substitute, for him, is a real evidence. This author provides elements that allow substitutes to group into two groups: 1) The statutory presumptions, within which fit perfectly legal fiction as a form of legal presumption, 2) The judicial presumptions that in turn include the indication element that allows them to be possible (it's hard to imagine a legal presumption that dispenses with the evidence).
indicia
To CARRIÓN LUGO [11], the evidence is all trail, trace, track, circumstance and in general all known that by way of inference leads us to knowledge of another fact unknown.
Master of TRAZEGNIES GRANDA [12], testing a current notion of circumstantial evidence, first quoted the test CABANELLES defines as "the result of evidence, conjecture, assumptions signs or more or less vehement and decisive, accepted by Judge as a logical conclusion and referral or chain of events. "This test is also called, he says, according to this author," of evidence, conjecture, circumstantial and indirect
...". He reports that this type of test is known in common law under the name of Circumstantial Evidence, that is, evidence (in the sense of evidence) circumstantial. It is not easy to define by what it is, leading often to be defined by what is not: the U.S. doctrine states that it is direct evidence provided by a document or even a witness who saw or heard something. The circumstantial evidence is circumstantial or a fact that can be used to infer another fact. In the indirect test, but testing a fact that is not to be tested but ultimately it is to prove the existence of the "final" with proof of a fact through . In Somehow, it comes to proving a chain of events and circumstances that are projected beyond the limits of what is tested, he says.
then quoted our Code of Civil Procedure that Article 276 º defines evidence as "The act, circumstance or sign adequately supported by the evidence, they gain significance as a whole when they lead the judge to certainty about a material fact related to the dispute. "
then concludes that "circumstantial evidence is, above all, a true test. This means not only that their results should be accepted as valid by the law but also -And as a condition for the former, which is necessary to have the characteristics of reliability, accuracy, consistency, that any evidence must be in the field of law if it is to be used. " For Professor
WALLS PALACIOS [13], the sign is a means of indirect evidence.
Procedure in Labour Law, we find the following rule:
Article 41 .- .- SIGNS acts, circumstances or signs adequately supported by the evidence, they gain significance as a whole when they lead the judge to certainty or conviction around an event related to the dispute. In the work process, evidence may be, inter alia, the circumstances in which the facts regarding the dispute and the history of the conduct of both parties.
DEEMED "It is critical that logical reasoning from one or more events leading indicators to judge the accuracy of the offense under investigation" (Article 277 º CPC).
the reasoning is based on a known fact we know another unknown (presumed). Thus, its elements are: 1) Made investigated (unknown), 2) Made indicator (known), 3) critical Logical Reasoning (opinion or inference) and, 4) Certainty of outcome studied (concluded).
In the following rule: "The declaration of default Because legal presumption on the truth of the facts stated in the application "[14], if the judicial process is given default of appearance (made known indicator), we infer (logical reasoning), that the allegation by the plaintiff, For example, non-payment of social benefits by the employer defendant (made known), it is true relatively (concluded).
The assumptions under our procedural rules in turn are of two kinds: legal and judicial presumptions presumptions (or simple assumptions, hominis).
should also be noted that in special cases, the law prohibits the use of the presumption: "Neither the dismissal and the reason given is deducted or boast, who accuses must prove "(Art. 37 º Act Productivity and Competitiveness).
Legal presumptions are presumptions established by law. This, orders have indeed a specific event provided the first indication of other fact has been sufficiently established in the process. The recipient of the presumption only has to prove the reality of the fact that she serves as a base or budget.
Legal presumptions are of two types: absolute and relative. Absolute
: No rebuttable (irrefutable), the judge is obliged to accept the presumed fact in some As it is shown by the fact that the 'background.
Example: 'That every person has knowledge of the contents of the inscriptions of the Public Records' (Art. 2012 of the Civil Code). In this case the entry should be credited only in those records to assume that all citizens know the contents of the register even if it is materially impossible. You can not prove otherwise by operation of law.
Relative: rebuttable (rebuttable) that is mandated by law or is presumed by the way a particular event once it has cleared the history or indicator element, however, the law allows test in contrary
Example: "In any benefits paid staff and subordinate services presumes the existence of an employment contract for an indefinite period" (Article 4 of the Act of productivity and competitiveness). But it is a presumption of relative value, then the employer can prove that defendant is a contract duly authorized temporary use, with what may be rebutted that presumption. This assumption leads to a reversal of the burden of proof.
Procedure in Labour Law, the legislature has spent the following article in this substitute:
Article 40 .- ASSUMPTIONS ON LEGAL .- It is presumed certain data and time remunerative services that contains the application, if the defendant:
1. Do not accompany your response, the documents required by article 35 (exhibition of books and worksheets).
2. Fails to exhibit their returns and pay stubs if you have been requested.
3. Not registered on the payroll or pay stubs given to workers who credits his relationship.
For its part, also the draft Labour Procedure Law [15] has predicted this figure:
SUBCHAPTER VI ARTIFICIAL
the evidence
Article 47 .- Legal presumption is presumed to be true .- remunerative and data services while containing the complaint, if the defendant:
1. Do not accompany your answer documents as required in paragraph 3 of Article 21 ° and Article 41 of this Law
2. Has not explicitly denied the assertions of the applicant from the date of entry and removal, last payment received or claims regarding the benefits claimed.
3. Fails to exhibit their returns and pay stubs if you have been requested.
4. Not registered on the payroll or pay stubs given to workers who credits his relationship.
5. If the employee stating employment relationship, the amount of compensation will be received by a server to perform their same or similar activities. Not possible, fix the minimum living wage in force on the date on which the right asserted arose.
On the basis of legal presumptions, that is, reasons or reasons why a legal system take place certain legal presumptions, Professor WALLS PALACIOS [16], argues that there are four: a) facilitating demonstrating the status of legal subjects, especially the individual, as both extra-and within the respective process, labor law, given the protective nature of it, facilitates the accreditation status of workers (first pro operator), b) are technical legislative mechanisms necessary for the functioning of the legal order in the workplace, discourages frequent failures to comply with requirements as enrollment forms, health and safety measures, from the employer; c) facilitates the judicial work of assessing the evidence viewed as a whole by inhibiting the discretion of the consequences that may arise from certain events foreshadowed by reasons legal security, public order or simple practicality, d) in the dynamics of the process, as in cases anteriores, el instrumento presuntivo resulta idóneo para facilitar la prueba de determinado supuesto de hecho del cual dependen las consecuencias jurídicas esperadas por el beneficiario de la presunción.
Las presunciones judiciales
Presunciones hominis. Son las presunciones establecidas por el juzgador mediante el examen de los indicios o rasgos sintomáticos recurriendo a las reglas de la lógica y/o de la experiencia. Igual que en el caso anterior, también se necesita de un presupuesto debidamente acreditado a partir del cual, mediante la inferencia, se arribará a una conclusión o convicción sobre el hecho investigado no conocido. A diferencia de la anterior presunción, donde la ley establece la presumption, here, this is made by the judge.
The formulation of these kinds of assumptions, are vital signs, ie, conjugation with other kind of breast. Signs lead to the formation of a presumption by the judge. Presumptions are rebuttable.
The conduct of the parties to the process indicator is a fact that serves well for the judge to arrive at certain conclusions on incidents under investigation for which no sufficient means full or direct evidence. For example, the conduct for which that part has been ordered to surrender statement by the act of hearing, personal way and it does not.
The assumptions in comparative law
In an interesting essay [17] BUENO GARCIA, Cuban judge said the regulation of the presumptions in some neighboring countries, based on what happens in their own country, noting that the assumptions and the sign are matched, at least legislatively, to the evidence.
In Cuba, the Civil Procedure Law, Administrative and Labor, is responsible for regulating the assumptions concerning, from a projection essentially procedural and pre-receptive as it makes it clear the role they play in cleaning the substantive rules . The
Article 351 °, in its first paragraph states: the presumptions established by law may be destroyed by evidence to the contrary, except in cases where it expressly prohibited. For his part, Article 353 º reinforces the character of true form of evidence that gives his own Cuban law when it states: For the assumptions are not established by law are significant as evidence, it is essential that between the fact proved and the one who you try to deduce precise and direct bond under the rules of rational criteria, and in this sense, the wording of Article 261 [18] that in the sixth and final section govern in strict numerus clausus, the presumptions part of the evidence.
Similar to above, the Civil Procedure Code of Bolivia, not so-what assumptions explicitly envisaged as a legal means test [19] but extended the legal framework to enact a general sense that "all me" Legal god and the morally legitimate but not specified in this Code shall be working to prove the truth of the facts in that fun-dare the action or defense "(Article 373 º). Thus, the assumptions are not only as evidence, but also as a test method or argument. Meanwhile
Procedure Code Civil de Costa Rica, among the evidence, under the same clause that makes the aforementioned Bolivian law, the presumptions and evidence [20], thus adding to the latter under the same heading which leaves related to two terms. Often arise in this direction that the sign is one of the essential elements for establishing a presumption, which does not mean that only manifest in the assumptions.
Civil Procedure Code of Costa Rica, offers special room for assumptions and makes it under the classification of: legal presumptions, which in turn differs in absolute and relative human assumptions. In both cases shall be accredited fact base from which it follows the presumption.
On the other hand it presents the Code of Civil Procedure of Chile, which hosts the presumptions as evidence [21], even in its article 426 °, second paragraph, states that: "One assumption may be full proof when opinion of the court, has characters of gravity and accurately enough to be convinced [22].
addition, Chilean law, like the Costa Rican reserves a space for other assumptions within the means of evidence, so that, during confession, provided in Article 398 º: "The extrajudicial confession base is only a legal presumption and without taking into account whether it is purely verbal, but in cases where it would be admissible evidence from witnesses, (...). Extrajudicial confession has been given in the presence of the party asserting jurisdiction or to the judge, but exercising jurisdiction, is always deemed as a serious presumption to establish facts confessed. The same rule applies to confessions made in another case different, but whether it has taken between the same parties now litigating, to receive a full test the merit of having compelling reasons to rectify that. "
For its part, Co-di-go Colombia's Civil Procedure, Title thirteenth dedicated to the regulation of Probation, by stating in its provisions on the means test, Article 175 º, in its first paragraph, states: "Means testing. Serve as evidence, the statement by the oath, the testimony of others, the expert, judicial inspection, documents, evidence and any other means that are useful for the formation of convincing the judge. "
procedural codes so far mentioned, only in Costa Rica decided to host, in the same paragraph the figure of the evidence by the assumptions, however Colombian law goes further by providing, among the mass of evidence, the evidence and set on a subsequent provision called 'presumptions established by law', that: The presumptions established by law shall be admissible if the facts relied fuse are properly tested, the fact shall be legally presumed to be sure, but allowed evidence to the contrary when authorized by law.
Costa Rican law is tilted only by statutory presumptions, among those not explicitly distinguish the well-known name in law and juris et de jure presumption, but if it loses the fact that base set will be "duly established" and also makes a distinction between rebutted and the other does not. LEGAL FICTION
That is but a legal presumption is not rebutted by mandate of the law itself.
LUGO CARRIÓN tells us [23], while the presumption that allows for a legal consequence from an event that is existing or false, fiction based on fact exist consciously. IHERING quoted as defining fiction honored techniques lies in the need of law.
An example of this fiction we have in the Civil Code, when are property requires that ships and aircraft [24], although it is very Clearly the nature of them as furniture. CONCLUSIONS
1. The substitutes are manifestations of proceedings provided by law or assumed by the judge to supply the evidence, when they are absent or insufficient.
2. With the evidence you reach the truth of the facts, while the substitutes only certainty about them.
3. Are substitutes for the evidence: The assumptions (legal and judicial), the legal fiction and the indication.
4. The law has established substitutes the evidence to prevent the judge ceases to resolve conflicts by the failure or inability of the evidence (pro principle operator). This means that business should not limit the evidence to check the work contributed by the parties, but the judge may also be immersed in that activity. BIBLIOGRAPHY
CARRIÓN Lu, Jorge. Treaty of civil procedure. Volume II. GRIJLEY editor. First edition. Lima, 2000.
DE SANTO, Victor. The evidence in court. Theory and practice. Editorial Universidad. Buenos Aires, 1992.
Ovalle Favela, José. Civil Litigation. National Autonomous University of Mexico. Editor Harlan - Harper & Row Latinoamericana. Second Edition. Mexico, 1985. WALLS
PALACIOS, Paul. "The assumptions as substitutes for the evidence," essay published in Contributions to the Peruvian labor reform process. Peruvian Society for Labour and Social Security (various authors). First edition. Lima, 2005.
SENTIS Melendes, Santiago. Testing. The major issues of evidence law. American-European legal issues. Buenos Aires, 1979. Electronic Resources
GRANDA TRAZEGNIES
OF Fernando. The theory of circumstantial evidence. [Online]. Lima. . Accessed: July 2007.
BUENO GARCIA, Diansy. Presumptions as evidence. [Online] THIRD INTERNATIONAL - JUSTICE AND LAW 2006. Matanzas, Cuba. . Accessed: July 2007.
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NOTES:
[1] SENTIS Melendes, Santiago. Testing. The major issues of evidence law. American-European legal issues. Buenos Aires, 1979, p. 112.
[2] WALLS PALACIOS, Paul. "The assumptions as substitutes for the evidence," essay published in Contributions to the Peruvian labor reform process. Peruvian Society for Labour and Social Security (various authors). First edition. Lima, 2005, p. 180.
[3] Something like 'it is not clear to dispense justice. "
[4] DE TRAZEGNIES Granda, Fernando. The theory of circumstantial evidence. [Online]. Lima. . Accessed: July 2007.
[5] Quoted by SENTIS Melendes in his work already referred to, p. 115.
[6] 1998 edition, printed in Colombia.
[7] Op cit.
[8] Article 275 º.
[9] Arts. 276 º to 283 º
[10] Op cit.
[11] CARRIÓN Lu, Jorge. Treaty of civil procedure. Volume II. GRIJLEY editor. First edition. Lima, 2000, p. 123.
[12] Op cit.
[13] Op cit.
[14] Article 24 of the Labour Procedure Act.
[15] CONGRESS OF THE REPUBLIC - SPECIAL COMMITTEE ON PREPARING THE DRAFT COMPREHENSIVE LAW AMENDMENT PROCEDURE OF WORK, which consisted of distinguished academics, including Doctors: Fernando Elias Mantero, Beatriz Alva Hart Francisco Gómez Valdez, Francisco Romero Montes and Sandro Núñez Paz. In the Technical Secretariat was appointed in July Haro Doctors Zamata Carranza and Carlos Torres. This conformation was adopted at the Sixteenth Ordinary Session of the Working Committee held on March 15, 2005.
[16] Op cit. 212.
[17] GARCIA BUENO, Diansy. Presumptions as evidence. [Online] THIRD INTERNATIONAL - JUSTICE AND LAW 2006. Matanzas, Cuba. . Accessed: July 2007.
[18] Article 261 .- The evidence that may make use of the process are:
1) judicial confession;
2) documents and books;
3) expert opinion;
4 ) judicial and reproductions;
5) witnesses;
6) assumptions;
[19] Article 374 º .- (Legal Means Test).
are legal means of evidence:
1) Documents.
2) A confession.
3) The judicial inspection.
4) The expertise.
5) The witnessing.
6) The presumptions.
[20] Article 318.-Means Test.
means test are the following:
1) Declaration of the parties.
2) Statement of witnesses.
3) Records and reports.
4) Opinions of experts.
5) judicial recognition.
6) scientists.
7) Presumptions and evidence.
[21] Article 341 .- The evidence that can be used in trials are:
· Instruments;
° Witness;
· Confession part;
· Inspection court staff;
· Reports of experts, and
· Presumption;
[22] should be added that this Act, regarding testimonial evidence, provides that courts appreciate the probative value of the witness statements conform to the following rules (Article 384 º):
1 ª witness statement unbiased and truthful is a legal presumption which evidentiary value will be assessed in accordance Article 426;
2 ª two or more witnesses to answer in fact and in essential circumstances, without blemish, legally reviewed and give reason for his statements may constitute full proof it has not been contradicted by other evidence to the contrary;
3 rd When the statements of witnesses of one party to be conflict with those of other witnesses, it certainly will declare those who, though in smaller numbers, seem to tell the truth to be better educated of the facts, or be of better reputation, more impartial and truthful, or be more consistent in their statements with other evidence in the proceeding;
4 th When witnesses on both sides of the same qualifications of science, of impartiality and accuracy, will indeed what state the greatest number;
5 th when the witnesses on both sides are equal in circumstances in number, so that sound reason can not be inclined to give more credence to the ones that others, have also not proven the fact, and
6 th when they are contradictory statements by witnesses of the same hand, that favor the opposing party shall be deemed made by it, to appreciate the evidentiary value of all of them pursuant to the preceding rules.
[23] Op cit.
[24] Article 885 º, inc.4.
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* Mixed Court Judge La Molina. Master student of the Litigation Unit of the University Graduate Nacional Mayor de San Marcos. Lima, Peru.
E-mail: donairess@gmail.com
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