THE CONDITIONS OF ACTION IN THE CIVIL PROCEDURE CODE

Abstract

The present paper analyzes the situation of the conditions of action in the Civil Procedure Code of 2015. It relates to its maintenance and the moment of verification, due to repercussions of practical-theoretical order that rise mostly from creating or not a material res judicata. The aim is to reveal the effects of lack of action declarations in different procedural moments. It focuses especially on an unintended consequence, which may be the impossibility of repropositioning the action in the face of the final sentence and causing effects on the Rescission Action. In order to do so, the study looks back on the evolution of theories of action, the text of the new Civil Procedure Code and on the considered doctrine. From a systemic analysis, it is concluded that the conditions of action remain surreptitiously in the new procedural document. Independently from the moment of the lack of action declaration by absence of action conditions, the sentence will be decisive and will not create the material res judicata under penalty of violating the rights and securities of the litigant notably from the due process of law in its procedural bias.

Keywords

• conditions of action
• new civil procedure code
• theories of action
• res judicata
• rescission action