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Let's analyze the case of a worker who goes to the Courts of Conduct, Mediation and Enforcement of Labor, the purpose of claiming social benefits, compensation for accidents, etc.. First Judicial Procedure stage, once the application filed and exhausted the citation of the employer, is just the preliminary hearing. PURPOSE OF THE PRELIMINARY HEARING? : PRELIMINARY HEARING IN BUSINESS LAWSUITS: Article 163 of the Labour Act, orders opportunity set for holding the public hearing, therefore it must be fixed time and date for the practice of it, with the assistance, in principle, both the actor and the defendant. The preliminary hearing satisfies basically 3 functions or purposes are: 1.) Avoid the trial and we have the Civil Procedure Code regulating the oral proceedings and the preliminary hearing held within it, she urged the trial judge to to seek reconciliation between the parties, namely, that call upon the parties to conciliation in order to avoid prosecution. The resolution of the dispute through alternative means of conflict resolution, by agreement between the contending parties in the process, 2.) Debug the process, ie to state the cause of entering the merit of the case, without there being any obstacle that prevents entering of the merits of the case. From there, the Judges of Conduct, Mediation and Enforcement have the power to make deliveries sanitizers, when he considers necessary, since the beginning of the dispute until just before sending the case to trial in cases in which no been possible mediation between the parties and thus with the office-sanitizer-to state the cause of entering the merit of the case, even though, as noted, obstacles to hearing the merits of , 3.) Establish the terms of the contradictory, equivalent in civil matters to lock "the suit". THE SAME ONCE BEGUN, SHALL BE, 1 .-) Present Written Promotion Test, however, he said, that in practice and depending on the judge to conduct it, that letter may be made in the course of the hearing or at the end of it, even some judges who apply the Statement of Hearing tests in the extension of the Preliminary Hearing (continuation of the same for a later date), remember that the preliminary hearing may last up to 4 months old. However, to facilitate mediation between the disputing parties is necessary that the evidence is presented in installing preliminary hearing, because it allows, among other things, that the judge is fully aware, of course, certain of the facts and may thus mediate the parties to present alternatives and proposed solutions with a view of the evidence that the same have been submitted and thus influence the conviction of the parties to reach a settlement. For this reason is that most of the doctrine and jurisprudence conclude in pointing out that the parties must submit their written test at the beginning of the preliminary hearing, therefore it should be understood as one, regardless of any such extensions have been verified and therefore, it insists, the evidence must necessarily be submitted at the start of the preliminary hearing in order to seek solutions to resolve the dispute through alternative means of conflict resolution. This for 3 reasons, namely : a) Based on the true fact that if the preliminary hearing is one, regardless of any of its extensions, the evidence necessarily must be submitted at such time fixed for the opening preliminary hearing; b) Because the practice of presenting the evidence on the timing of the start of the preliminary hearing, facilitate mediation between the parties, we insist, the full knowledge that it has the court on the facts surrounding the case and allows to induce the parties to the conviction of a solution to the conflict; c) For reasons of procedural fairness and good faith in this particular, is must define, that is why in no way implies a fallacious argument, on the contrary is based on the experience that gives the judiciary, then it is inconceivable that corresponds to the loyalty and good faith, the fact that having after four (04) months in a mediation process in the last phase is intended to surprise both the counterparty and the court by presenting evidence that threaten to undermine the entire event process, especially when, as stated in the new work process the preliminary hearing does not meet the third function assigned to it in the Common Procedural Law, which is setting the terms of contradictory. I SUSPENSION CONTINUATION OF THE HEARING : Articles 130 and 131 of the Labour Procedure Law, ie Judge has the power to suspend and order then it whenever necessary (legal principle ejusdem 132) provided that the duration should not exceed 4 months (last part of the legal rule ejusdem 136), obviously it should be noted with emphasis that the audience in question is a single, undivided stage, regardless of the sessions that integrate , as it is informed by the principle of concentration procedure. FACULTY OF HEARING JUDGE: The judge is the director of process needs to be promoted automatically to completion, thereby ensuring the doctrine that the process once started, is not the exclusive concern of the parties. As an epilogue to the preliminary hearing is fundamental so that the parties in dispute reach an amicable settlement. IF THE DEFENDANT DOES NOT APPEAR : Article 131 of the Labour Procedure Law states the following: "If the defendant fails to appear at the preliminary hearing, is presumed admission of the facts alleged by the plaintiff and the court ruled orally in accordance with that confession, as it is not contrary to law the complainant's request, reducing sentence to a document drawn up by the same day, against which the defendant may appeal to two effects, within a period of five (5) working days from the publication of the ruling. The Labour Court will decide competent oral and immediately after hearing of a party, within five (5) working days counted from the date of receipt of the file can confirm the sentence of First Instance or revoke, when justified and considers that substantial grounds exist for the absence of the defendant by accident or force majeure fully verified at the discretion of the court. The decision reduced to writing and it will be admissible against the appeal, if we reach the amount referred to in Article 167 of this Act, within five (5) business days following that decision. In any case, if the appellant fails to appear at the scheduled hearing to decide the appeal, the appeal will be rejected, tried. " the legal consequence that the Labour Law Litigation granted the non-appearance Respondent's preliminary hearing is the "presumption of acceptance of the facts alleged by the plaintiff" and the immediate decision of the case according to the confession and clarifying that are distinct legal concepts of presumption of acceptance of the facts and confession such as appearance, which does not allow evidence to the contrary that weakens its effects, can not be a confession, and the closest thing that resembles is a tacit admission, appears rare, but, as any admission, given by certain facts of the claim and becomes irreversible recognition thereof, and be at the discretion of the judge to correct legal qualification of the same. This absence (tacit confession), will be of absolute therefore not refuted by evidence to the contrary (presumption juris et de jure). That is, the power of stubborn not represent the possibility of contesting the admission of confession evidence to the contrary, but to deprive this action because they are not covered by the law or to rebut the claim of the actor under the claim that it is contrary to law. SUED IF NOT APPEAR TO EXTENSIONS (CONTINUED) FOR THE PRELIMINARY HEARING : If the absence of the defendant arises in one of the extensions of the preliminary hearing, the admission effect of the facts of that absence to be considered as relative, so rebutted by evidence to the contrary (rebuttable presumption), in which case, the sentencing of conduct, mediation and implementation must include the record of evidence tendered by the parties the purposes of admission and discharge before the trial judge (Article 74 of the Labour Procedure Law), who is to verify, once the probationary period, meeting the requirements for a fictitious confession is declared and have legal effect, ie check whether the applicant's request is not contrary to law and that the defendant has not proved anything he favors. In this case, to have fulfilled the requirements previously outlined, the tacit admission will be declared and the judge decide the case according to the confession. In this case, if the trial decision is appealed, the superior court is competent to decide in the previous chapter (if that were alleged by the defendant in the appeal hearing) the circumstances that prevented him from appearing at the extension of the preliminary hearing, that is, the unforeseeable circumstances or force majeure resulting in the absence of the defendant and if it proves unfounded, the judge will then proceed to decide the case taking into consideration the requirements for being declared impretermitibles tacit confession (which is not contrary to law or the complainant's request the proposed action illegal and the defendant has proven nothing). BOTH: if the chief judge of competent jurisdiction finds that the defendant failed to show that the cause of the failure to attend the preliminary hearing (either the first or the extensions) was due to unforeseeable circumstances or force majeure, shall restore the case to the state to hold a preliminary hearing conciliation and mediation. SI PLAINTIFF NOT ATTEND : Article 129, provides: "The preliminary hearing will be in oral form, private and personally presided over by Justice of Conduct, Mediation and Implementation, with compulsory attendance parties or their attorneys. Article 130 of the Labour Procedure Law, which states: " If the applicant fails to appear at the preliminary hearing will be rejected, the procedure, completing the process by oral statement to be reduced in a report, which be published on the same date.. " Set our legal sanction when the plaintiff does not attend the preliminary hearing, as this initiates the process, through a demand, therefore, the main actor in the process is precisely this, and by virtue of this, it penalized when they attend, as stipulated in Article 130 pre-quoted. Same result occurs when both parties do not attend. IN PRACTICE: In most cases, the preliminary hearing, in comment, is very informal. The judge who leads it, which is usually not the same as has been the major cause, describes the suitability of the agreements in premium face and directs the activities of the parties. First, it gives the floor to the actor, then the defendant, and sometimes, depending on the particular case, the calculations carried out in such event, in communion with the parties. RECONCILIATION: Had come between the parties to an agreement , it is embodied in an Act, which contains every one of the terms of the transaction (payment methods). Failing agreement will be sent on case to the Trial Chamber, in order to evacuate the tests and were promoted at the preliminary hearing and issue the order accordingly. I should add, finally, that the importance of presenting the Promotion Written Test at the beginning of the hearing, the subject of study in this article, is that later, not may, therefore, whether plaintiff or defendant not present , run out of evidence during the trial and the outcome will be fatal losing on it. Dr. HENRY ANDREA. |
