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 â ¢ 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.
The rationale for holding that membership is ancillary to the appeal are mainly:
1 .- The very name indicates that the institution is subject to a major issue (
adhere is added to a main thing.) 2 .- The same rationale that the legislature h
as had to set the accession (equal parts), as is always conditioned by the attit
ude of the person who has won in the first instance. If you can appeal it makes
up the lost. If not satisfied that the other appeals pending, as is the appeal o
f the appeal.
Those who argue that membership is independent of the appeal, argue as follows:
1.-That the definition of cross appeal that gives the art. 216 is consistent wit
h the definition of appeal that gives the art. 186. Are regulated by law as sepa
rate institutions with their own legal nature. 2 .- It is independent because sh
e was not filed in conjunction with the appeal, but has a separate procedure. 3
.- If the art. 217, inc. 2 calls for an hour in the writings of membership and w
ithdrawal of the appeal means that you need to establish beforehand that the app
eal is pending. The rule would have no purpose if membership is not independent,
because the withdrawal always end with accession.
MODE OF TERMINATION OF APPEAL OF APPEAL
The ordinary is that the appeal ruling done by the resource. However, there are
other ways to terminate the appeal. These are: 1 .- The defection of the appeal.
2 .- The limitation of the resource, and 3 .- The abandonment of it.
In addition, there are indirect means to terminate the appeal and are indirect b
ecause they are intended to terminate the procedure, which leads to the conclusi
on of the appeal: a) The abandonment of the procedure; b) The abandonment of the
claim, and c) the transaction.
THE VOID OF APPEAL OF APPEAL
Punishment of a procedural nature CONCEPT causing the end of the appeal filed by
the appellant not having complied with the obligations imposed by the legislatu
re. This penalty is none other than the loss of appeal.
THE WITHDRAWAL OF THE APPEAL is for a voluntary basis to rescind the appeal. The
re is no express provision to regulate it, not being either an act intended by t
he law, nor could be. That is why it should be considered as a secondary questio
n in the appeal and this leads us to say that is handled as an incident in the a
ppeal Do you need special powers?
APPEALS FROM THE PRESCRIPTION Prescription is the procedural penalty consisting
in the disappearance of the appeal put inactivity of the parties during the peri
od established by law. It is not a form of estoppel, but is an institution equiv
alent to the prescription of the Civil Code.
REQUIREMENTS To be able to plead the limitation of the appeal is necessary to me
et the following requirements: 1 .- inactivity of the parties; 2 .- compliance w
ith a given period, and 3 .- must be claimed or alleged by one party (normalment
elo make the respondent).