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Appeal Appeal

Appeal Appeal

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Published by: 4gen_2 on Jul 08, 2010
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11/14/2013

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THE REMEDY OF APPEAL
THE EFFECTS of the appeal are the consequences of the proceedings produced. Thes
e effects are: 1 .- Effect of suspension, and 2 .- Effect devolution.

The appeal may be granted in both effects or purposes of review only. The latter is the transcendent and corresponds to an essential effect, since under it empo wers the High Court for hearing the appeal suspensive effect, however is the nat ure of the appeal and not of the essence, so the legislature may modify, remove and disposal brings the distinction between the appeal granted in both effects a nd granted the sole purposes of review.

When the appeal is granted in both, there is only one court with jurisdiction to continue hearing the case: the Court of Appeals. However, when the appeal is gr anted in the sole purposes of review, there are two competent tribunals to hear the case: a) The Court of first instance can continue sitting until it reaches t he decision appealed against, and / or to the end of the procedure b) The Court of Appeal has jurisdiction that gives the power to hear and determine the appeal

In Chile, the general rule is that the appeal is granted in the sole purposes of

review, that is, the jurisdiction of the Court of first instance remains.
COMPETITION TRIBUNAL OF SECOND INSTANCE: DEGREE OF COMPETITION AND FAILURE
The effect devolution transferred jurisdiction to the Court of Appeal and that c

ompetition includes the power to review both the facts and the law. However, suc
h competition is not always unlimited or unconstrained

a) First grade: "The final judgments only first or second instance and to amend or withdraw as part of other Courts, shall contain: 6th The decision of the cont roversial issue. This decision shall include all the claims and defenses have be en asserted at the trial but may be omitted from the resolution of those which a re incompatible with accepted. "

There are, however, some exceptions to this general rule: 1st. The Court of Appe al can know all the exceptions or defenses rejected in the first instance and on which it has pronounced the sentence pronounced by the lower court hierarchy as incompatible with the welcome. 2nd The Court may make such statements of job th at the law will be binding even if not appealed the ruling contains (art. 209), for example, his absolute incompetence, the absolute invalidity, implication, et c..

3rd Court automatically invalidate the ruling that not all decisions to be conta ined. 4th Court can send, if no decision regarding a claim or defense, the case to the Court of first instance for the judge to complete the decision

b) Second grade is the case referred to in art. 692 of CPC, included in the sect ion devoted to summary trial. This provision extends the purview of the Court of Appeal to the possibility of a ruling on the issues discussed in the first inst ance, but not the failure to understand the appeal.

c) Third Degree (The general rule in civil matters is that the Court of Appeal c an not go beyond what has been appealed, nor can become the second-instance ruli ng against the appellant, unless there is cross appeal ) However, in criminal ma tters may become the ruling against the appellant. This is guaranteed in art. 52 8 C. P. P. enshrining the principle of "Reform in peius" reform or harm: "Even i f the appeal has been deducted by the defendant, the Court of Appeals may modify the decision unfavorably to the appellant

DETAILS OF APPEAL

1 .- In an ordinary appeal, because it comes against the generality of judgments . 2 .- It is the second instance in Chilean law, which means that the Court hear ing it may assess the facts and the right freely, with very few limitations. 3 . - brought before the court that made the decision to always know the superior co urt. 4 .- It applies in cases in non-contentious and contentious, by express pro vision of law

5 .- It is a resource binding since in some cases provides other resources and i n one case prevents the commencement of another. The filing of an appeal preclud es the possibility of an appeal for amparo. On the other hand, allows the filing of other resources as the appeal is the leading resource to prepare the appeal in form;€and is associated with the appeal on the merits, because it must be fi nal for the second-instance judgments

6 .- It is a resource waivable ⢠Anticipate can be expressly waived at the start
of the trial? Art. 7, inc. 2 of C.P.C. Bush said that judicial needs an explici
t reference to "renounce the resources or the legal terms."

b) tacitly waived when the period of time is left to enforce the action. The pos sibility of implied waiver moved the legislature to establish an institution bed . In all cases where public interest is involved and social, if not apparent app eal, should the process of consultation

RESOLUTIONS subject to appeal:

Are appealable final judgments and interlocutory decisions of first instance. In general, orders and decrees are final, unless the substantiation alter regular trial or fall on procedures which are not specifically ordered by law. But in an y case, the appeal is not direct but replacement subsidiary.

EFFECTS OF THE proceedings

As we know, the consequences of the appeal are the effect and the suspension of devolution. The general principle set-now-by the Code is that the appeal should be granted the purposes of review only. This rule is issued in the arts. 193 and 195.

However, so you can understand the appeal granted the sole purposes of review, t he court must expressly so state (art. 193, "contrario" which is a remnant of th e situation before the last modification of resource appeal, in which the effect was vested in both the general rule).

CIVIL SITE IN SECOND INSTANCE

In civil matters the space for the second instance is composed of: a) The issuan ce of the decision granting the application; b) The notification of the resoluti on, and c) The legal deadline to appear in the second instance, a term referred to the art . 200 C.P.C.

In criminal matters the enactment of the resolution granting the appeal and make
the site notice on appeal (Ar. 510 CPP)
TESTING IN SECOND INSTANCE

Without prejudice to the powers conferred by Article 159 (Measures for adjudicat ion), appellate courts may admit evidence that the parties have not produced in the first place: but the testimony only when it was not possible to pay in that instance and about facts that are not on the evidence presented and are strictly necessary in the opinion of the Tribunal for the successful resolution of the t

rial (Art. 207, inc. 2nd)

The Court has interpreted this provision stating that the fishing village Sesimb isntancia second, when appropriate, not automatically but may be ordered at the request of parties The requirements to give evidence as witnesses in the second instance are: 1. That has not been able to pay in the first two. Must rest on f acts not included in the evidence presented, and 3. That is treated as strictly necessary in the opinion of the Court for the verdict of the appeal

On the instrumental testing in accordance with Art. 348, can surrender at any st

age of trial, either at first or second instance.
The confession part is governed by Art. 305 C.P.C.
"A party may require the confession to two times in the first instance and once

in second, but if new facts are alleged during the trial, may be required once a
gain" (art. 385, inc. 3rd)

The inspection staff of the Court may be ordered on appeal when the Court deems it necessary, in accordance with Art. 403. This may commission one or more of it s members (art. 405 inc. 2nd)

The court, optionally, may order the report expert. Refers to the subject on art
. 207 in relation to the arts. 411 and 412 of C.P.C.

According to Art. 228 et seq. CPC, the Court may send you to learn in law, where necessary illustrate in better shape about the laws to be applied to the confli ct.

Cross appeal (Appeal of the appeal)

CONCEPT
Accession is the possibility that the party has not exercised directly appeal to
demand the reform of the party ruling in the appellee deems burdensome This con
cept is ratified by the art. 216, inc. 02 º which conceptualized law: "Joining
the appeal is to seek reform in the original ruling party that the respondent co
nsiders burdensome." Accession is an institution that will play only if a senten
ce has been pronounced mixed, or mixed one that has not fully upheld the claim o
f either party, or has been accepted claims of both parties, rejected other ,€s
o that both parties suffer injury.

BUDGETS FOR THE ACCESSION 1 .- That a party has filed an appeal and the appeal i
s pending, and 2 .- The lower court cause injury to respondent

Regarding the first assumption expresses the art. 217, inc. 2nd that "not yet el igible (membership) from the time the appellant has submitted in writing to with draw from the appeal" Exceptionally, the law has mandated that "in applications for membership and withdrawal will be noted by the secretary of Court time are d elivered "(art. 217, inc. 3rd)

OPPORTUNITY TO JOIN PROCEDURE

We must distinguish: 1 .- Adherence to the appeal at first instance: it is produ ced by filing a brief and before the Court of first instance has raised the orig inal documents or attested copy to the superior court (art. 217, incl 1 º) 2 .- Adherence to the appeal in the second instance: i. - The membership must be sub mitted within the period laid down in Article 200. This period is fatal.

The legal status of cross appeal is usually discuss it are incidental to the mai
n appeal and is independent of the appeal to which it adheres.

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