Civil Cassation Plenary Sessions
Civil Cassation Plenary Sessions
Judicial District: Cajamarca
Date: 22/02/2008
I. Reason for the appeal:
To determine whether or not an out-of-court settlement concluded without the existence of any judicial process, and which has not been judicially approved by a judge, can be put forward as a procedural exception.
II. Result of the cassation:
The Plenary Meeting concluded that the extrajudicial settlement not approved by a judge may be opposed as a procedural exception pursuant to Articles 446.10 and 453.4 of the Code of Civil Procedure, through the systematic interpretation of such rules with those contained in the Civil Code on the settlement. It is understood that out-of-court settlements approved by the judge are processed according to the rules of the Code of Civil Procedure, as they are expressly regulated. The same applies to transactions concluded in relation to the rights of minors, which must be authorised by the competent judge in accordance with the law. In the second precedent, the Plenary Session determined that an individual does not have the right to sue for a vague interest.
III. Comments:
In the opinion of Dr. Marianella Ledesma Narvaez¹: “The transaction that is concluded outside of the process and in advance of it, does not generate the effect of res judicata. Nor does it allow for the exception of settlement to be applied to proceedings already initiated after the conclusion of the proceedings, because the regulation of Article 446(1) of the CPC requires the existence of a legal proceeding that has been concluded by settlement. The settlement is simply an argument for an exception of substantive law, but not a procedural one, referring to a fact that is brought into the proceedings with the aim of rendering the plaintiff’s claim inapplicable. For this reason, our legislation does not expressly provide for a “settlement exception”, but rather for the “conclusion of the proceedings by settlement”, which necessarily requires the existence of a concluded process. The exception of res judicata regulated by section 8 of art. 446 CPC is opposed to proceedings that have been concluded by an approved settlement; the exception of conclusion of the proceedings by settlement, section 1O of art. 446 CPC. It shall be invoked when a procedure identical to a procedure concluded by settlement is initiated, even if it has not been standardised.
¹Can be consulted at: https://revistas.pucp.edu.pe/index.php/derechoysociedad/article/download/17434/177
Judicial District: Lambayeque
Date: 23/10/2008
I. Reason for the appeal:
The reason for this full cassation was to determine whether two co-owners can file a joint action to be declared owners by means of a claim of acquisitive prescription.
II. Result of the Cassation:
In this case, the conclusion of the plenary session was that there is no inconvenience that two or more homogeneous co-owners (same hierarchy) can resort to a legal action to be declared co-owners. It is necessary to emphasize the word hierarchy, because there cannot be a co-owner with a higher hierarchy than the other, in this case the daughter does not have the quality of a co-owner, but of a mere holder.
III. Comments:
Julio Solis Gozar¹, comments the following on possession and ownership: “The doctrine refers to these concepts, some consider them as synonyms, others say that in possession a mere de facto power is exercised over a determined good, without the accompanying animus possidendi, that is, without the intention of affirming or attributing to itself the real right that it exercises (MESSINEO). In this case, the holder is the holder of a title that is subordinate to another of greater power. Such a title is nothing more than the accreditation that the possession is exercised by another and not by its bearer; it is not – strictly speaking – a title of possession, but the expression that he is authorised to have the property in the interest of another and not in his own… for possession to exist, the animus domini is necessary. For this reason, French positive law denies the effects of possession to simple possession (…) the holder or possessor, who possesses the property in the interest of another, as he is not a possessor cannot exercise the possessory defence that the law provides for holders, which in many cases is a contradiction in terms; This is the case of the guardian who is not authorised to exercise the extra-judicial possessory defence when there is an attempt by a third party to dispossess the property he is caring for; the system must provide this type of holder with the possibility of exercising the possessory defence on behalf of the holder, provided that the latter authorises him to do so. ”
¹ Consulted in: https://es.scribd.com/document/8739072/Articulo.
Judicial District: Puno.
Date: 18/03/2011
I. Reason for the appeal:
The purpose of the third plenary session of the civil cassation is to establish binding jurisprudence to create uniformity in future court rulings with regard to whether the compensation mentioned in Article 345-A of the Civil Code should be fixed ex officio or at the request of a party.
II. Result of the Cassation:
Compensation for damages or the preferential adjudication of assets of the marital partnership may be requested through the postulatory acts in the lawsuit or counterclaim. The request is also valid after the application process. The judge will decide on these points ex officio, provided that the party concerned has referred to the damage resulting from the separation or divorce. These facts may be referred to after the application process. In both cases the judge shall give the other party a reasonable opportunity to comment on those facts and to offer relevant evidence. If the hearing of evidence has already taken place, the means of proof offered shall be immediate. In all cases the judge must rule on the existence or non-existence of a more prejudiced spouse. Subsequently, the Constitutional Court, in its ruling on file 00782-2013 PA/TC, decided in favour of the plaintiff, clarifying that if at no time does the interested party refer to being an injured spouse, the judge must not rule on such a situation, since this would affect the other party’s right of defence, since it would be necessary to defend against the judge’s reasons. The principle of procedural consistency is also infringed.
III. Comments:
Professor Clara Mosquera¹ considers that: “the purpose of the Plenary Cassation Session has been fulfilled, as it has analysed at length the issues relating to compensation and preferential award to the spouse who has suffered a divorce on the grounds of de facto separation and has given guidelines so that the various courts do not issue contradictory rulings. In proceedings concerning family law, the principles of consistency, preclusion and procedural possibility must be made more flexible. While the judge has a duty to ensure the stability of the injured spouse, he must base his decisions on the evidence offered and acted upon in the proceedings. The request for compensation or preferential award may be made even after the hearing of the evidence, but in this case only evidence of immediate action will be admissible”.
¹ Mosquera Vásquez,C. Third Plenary Session of the Civil Cassation Court. In: Revista Justicia y Derecho N°4. Lima: Justicia y Derecho. 2009 pp. 7
Judicial District: Ucayali
Date: 13/08/2012
I. Reason for the appeal:
To establish the assumptions of the precarious holder, the scope of the legitimacy to act actively and passively, and to avoid the judge’s inhibition to sentence.
II. Result of the appeal:
The plenary session reached the following conclusions:
– One will be precarious when one occupies another’s property without paying rent and without a title to it or a defunct title.
– The lack or expiry of the title refers to the legal act that allows the defendant to exercise possession of the property.
– Those with legal standing to act can be, in addition to the owner, the administrator and anyone else who considers themselves to be entitled to the restitution of a property. Those entitled to act passively are those who occupy the property without proving their right to remain in possession, because they never had it or it has died.
Likewise, the full court of cassation determines the cases of precarious possession, which are as follows
– The extrajudicial resolution of a contract: This causes the possessor to become precarious as his title has expired.
– When the return of the property is required.
– If the judge notices the absolute and evident invalidity of the possessory title, after promoting the contradictory between the parties, he will declare this situation in the resolution part of the sentence.
– The sale of the rented property makes the tenant precarious with respect to the new owner.
– The construction of buildings on the property in question does not mean that the lawsuit is declared inadmissible.
– It is not enough to invoke usucapion to dismiss the eviction claim.
– The judge may not issue a restraining order, but must rule on the merits of the case.
III. Comments:
Martín Mejorada¹ comments: “[…] He has decided on a broad definition of a precarious tenant. This implies that in each case the judge must assess with freedom and conviction whether or not it is appropriate to surrender the property, taking into account the very summary and urgent evaluation that eviction entails. As in this process there is no in-depth investigation of the alleged rights, but only a very brief examination of the titles and legal sources, the precarious owner is the one who is perceived as lacking rights in such circumstances. It may be that the summary assessment leads to an undesired decision and those who have rights are considered to be without them, and vice versa. This should not scandalise us as there are always long processes to resolve what will be definitive, contrary to what the eviction judge decided, if any”.
¹ https://revistas.pucp.edu.pe/index.php/iusetveritas/article/viewFile/11952/12520 Pág. 354
Judicial District: North Lima
Date: 01/2013
I. Reason for the appeal:
The purpose of the fifth plenary session of the civil cassation was to establish a binding judicial precedent regarding the challenge of association agreements, specifically on the basis of the challenge and the corresponding procedural route.
II. Result of the Cassation:
The Supreme Court established the following binding parameters
1. The challenge of any agreement issued by a civil association or non-profit-making legal entity is based on a mandatory and unavoidable basis on the provisions of Article 92 of the Civil Code, through the abbreviated procedure, with the civil judge having jurisdiction.
According to Article 92, the following are entitled to challenge an association agreement: the member who attended the meeting and recorded his opposition in the corresponding minutes, members who were not present, members who were illegitimately deprived of voting, and members who were expelled from the area under challenge.
3. The claim to be challenged must be made in accordance with the time limits set out in Article 92 of the Civil Code:
– 60 days from the date of the agreement.
– 30 days from the date of registration of the agreement.
The judge may adapt a claim to challenge an association agreement that has been based on Book II of the Civil Procedure Code, provided that the requirements set forth in Article 92 of the Civil Code are met in the request and factual grounds, taking into account that the time limits set forth in the above-mentioned rule have not expired, otherwise the claimant would incur a manifest lack of interest in acting and the claim would be deemed inadmissible.
III. Comments:
In a position contrary to the ruling, Dr. Fort Ninamancco¹ states that: “When a person does not know or is unaware that a settlement has been reached, he or she is unable to go to court to challenge it. How could a settlement that is unknown be challenged? Therefore, as these 60 days are a time limit, I consider that as long as the agreement of the assembly is not known, article 2005 of the Civil Code should be applied and, therefore, the time limit cannot be counted, it does not run (…) several proposals have been made on how to interpret article 92 of the Civil Code. I have certain reservations about this decision, because in Peru there has been no exhaustive analysis of the doctrinal sources that gave rise to this article”. Finally he notes: “I believe that the message of the Supreme Court has been that the members of the associations are constantly aware of the agreements that are established in the assembly”.
¹Can be consulted at: https://laley.pe/not/1806/-no-se-puede-impugnar-un-acuerdo-que-se-desconoce.
Judicial District: Lambayeque
Date: 03/01/2013
I. Reason for the appeal:
The sixth plenary session of the civil cassation was convened due to the different positions that had been established in sentences issued, including by the Supreme Court, as a result of the processing of processes for the execution of guarantees. In such decisions there was a divergence of opinions regarding the material requirements that the plaintiffs had to accompany in order to prove the debt subject to judicial collection and the legal consequences that the lack of such requirements entailed.
II. Outcome of the appeal:
The Supreme Court identified, depending on the type of plaintiff and the nature of the guarantee subject to enforcement, essential requirements for processing in court, namely
In order for a guarantee to be enforced, it must be accompanied by the application, the document that establishes the obligation or, if it can be determined, it must be stated in the application and the other documents indicated in Article 720 of the Civil Code. If the creditor belongs to the financial system, the same requirements are required and, in addition, if there is one, the security duly protested or, failing that, the “no protest” clause or an equivalent one in the act of issue or acceptance. The judge of the lawsuit must verify the requirements developed in the previous paragraph, in addition to the fact that the debtor’s balance is correct with respect to the statement of account. If the statement of account of the debtor’s balance presents evident omissions of the requirements and formalities or has notorious accounting inconsistencies, the judge must declare the claim inadmissible so that the executor can correct the observations. Once the origin of the execution has been determined, the judge must issue an execution order, with a warning to proceed with the judicial auction of the property given as a guarantee. The payment provided for in the enforceable order must be in the form of a liquid sum, and an enforceable order cannot be issued for the payment of a partly liquid and partly illiquid sum of money, to be paid after the judicial auction or the request for an adjudication in payment by the enforcer in accordance with Article 746 of the Code of Civil Procedure, except for interest, costs and expenses incurred after the issuance of the enforceable order until the date of payment. The creditor may only execute the mortgage for the amount of this guarantee. In the event that the amount drawn up in the writ of execution exceeds the amount of the encumbrance of the real guarantee, the procedure shall be carried out in accordance with Article 724 of the Civil Procedure Code.
III. Comments:
Analysing the possibility that the Sixth Plenary Session of the Court of Cassation includes an interpretative norm in its precedents, Dr. Campos Camargo¹ asks himself: “Can it be said that the Sixth Plenary Session of the Court of Cassation, in its second precedent, includes an interpretative norm?” and he rehearses the following answer: “In no way. As previously stated, the Code of Civil Procedure only states that the demand for the execution of a mortgage guarantee must be accompanied by the statement of the debtor’s balance. It says no more. On the contrary, it is the Sixth Plenary Session that establishes greater requirements, such as, for example, that the statement of debit balance be signed by a representative of the enforcing financial entity, with powers to liquidate operations. Therefore, since the Sixth Plenary Session adds content to the procedural regulation which it did not have before, this is not an interpretative regulation. We cannot maintain that the rule which includes the second precedent of the Sixth Plenary Session is in force at the same time as the rules of the Civil Procedural Code, which include the requirements to be met when filing a mortgage guarantee foreclosure action.
Judicial District: Lima
Date: 05/11/2015
I. Reason for the appeal:
The present Plenary Cassation was motivated by the fact that, in a continuous and reiterative manner, the various jurisdictional bodies resolved the case in accordance with the particularities of each case with regard to the application of the last part of Article 2011 of the Civil Code with different and even contradictory criteria. The difference lay in whether or not unregistered property should take precedence over registered liens. Majority jurisprudence considered that the title to property not yet registered, prior to the seizure, allowed the lifting of registered seizures, however a few years ago this interpretation began to be questioned as it was said that primacy should be given to the registry, in view of the fact that the unregistered title to property is insufficient to oppose a registered seizure.
II. Result of the Appeal:
In third party property proceedings involving registered property, it must be considered, in accordance with the second part of Article 2022 of the Civil Code, in accordance with Articles 949 and 1219 paragraph 1 of the same legal body, that the property right of the third party is opposable to the right of the seizure creditor, provided that such property right is evidenced by a document of a certain date older than the registration of the respective seizure. In this case, the ex-officio judge, once the claim is admitted, must ensure the legality of the certification of the date of the document presented by the third party.
To this end, he may officiate to the notary, judge and/or civil servant who has issued such certification, in order to inform him of the authenticity or falsity of the same. In the event that the corresponding notary, judge or civil servant does not recognise the authenticity of the certification attributed to him in the document presented by the third party, the claim must be declared UNLAWFUL, and certified copies must be issued to the Public Prosecutor’s Office so that it may act in accordance with its powers.
III. Comments:
In accordance with the resolution of this Cassation Plenary, Dr. Gunther Gonzales¹ states: “I continue to wonder in this case (VII Cassation Plenary) what the subject of the debate is, because from the beginning it was known that the law protects the property from the registered seizure, it is in the second paragraph of Article 2022 of the Civil Code. Under a traditional conception of the law, this rule solved the problem, at least theoretically. However, in the case of seizure, I do not see any that protects it. So there has been an artificial debate, a debate between a solution that had one rule or several rules of support versus a thesis (that of seizure), which has no rule of support. And the thesis of seizure cannot have any supporting rules for a very simple reason: the protection of registration is given to voluntary acts. Registration protection does not apply to legal acts. No one can say with an embargo “I have won a right by virtue of which the right will protect me”, when in fact the acquisition is not based on the registry, it is not born in the registry, it does not have the registry as a basis, it cannot be invoked”.
¹ The full interview can be found at: https://www.youtube.com/watch?time_continue=1&v=tdDAiQE_bE0.
Judicial District: Junín
Date: 09/09/2020
I. Reason for the appeal:
1.1 The call to the VIII Civil Cassation Plenary Session proposed “to determine whether the legal act by which one of the spouses disposes of the assets of the community of property without the intervention of the other is a null and void, voidable or ineffective legal act, which presupposes establishing the scope of the provisions of Article 315 of the Civil Code”.
1.2 Thus, the discussion focused on determining what the legal sanction was applicable to these acts of disposition carried out without the participation of one of the spouses, with regard to the interpretation of the provisions of Article 315 of the Peruvian Civil Code. There are two remedies or sanctions that, in general, have been developed both in case law and doctrine: (i) nullity and (ii) ineffectiveness (in the strict sense).
II. Result of the appeal:
The majority decision defines Article 315 of the Civil Code, as an imperative rule of public order, and therefore, establishes that its transgression constitutes a cause for annulment, regulated in paragraph 8) of Article 219 of the Civil Code. Thus, the majority of the Plenary opts for the nullity, being the argument that develops the following:
“Taking into account the considerations expressed in this sentence, and the normative infraction invoked, it is noted that the Superior Chamber has misinterpreted the initial part of article 315 of the Civil Code, since the acts of disposition of extraordinary social goods or of economic transcendence, have as a rule the joint intervention of both spouses. This rule is supported by two pillars: firstly, the protection of the family interest and, secondly, the principle of equality of the spouses. And it is on this basis that Article 315 of the Civil Code, an imperative rule of public order, requires the joint intervention of both spouses in the act of disposing of an extraordinary asset of the community of property, whose ownership rests with the conjugal society; an imperative rule because it protects the family interest, as stated in Article 4 of the Constitution, and cannot be replaced by the will of individuals; and, it is of public order in that it is closely linked to the essential principles of our social order (family nucleus); that is to say, the failure to comply with the requirement provided for in article 315 of the Civil Code (joint intervention), constitutes grounds for annulment, regulated in section 8) of article 219 of the Civil Code, a rule of reference of article V of the Preliminary Title of the Civil Code, that is to say, the legal consequence applicable to this case is annulment. ”
III. Comments:
It is invoked that after the 315th of the Civil Code there are rules or principles of constitutional order such as: the protection of the family interest and, the principle of equality of the spouses.
We ask ourselves, whose family interest is to be protected, that of the seller? And what about the family interest of the buying or acquiring party? There is no analysis of this.
Likewise, the cassation ruling says nothing about the reasons why it rejected the thesis of ineffectiveness and other positions that were put forward as alternative solutions by the amici curiae. Total silence.
On this point, we share the reasoning of Dr. Fernandez Cruz (position taken by the Decision in minority) who stated “(…) that the problem of disposition of one of the spouses of the assets of the company is a matter of ineffectiveness, properly speaking, of lack of legitimacy and not of invalidity. He stated that Article 315 of the Civil Code does not establish the penalty to be imposed when the rule is violated and indicated that this provision contains two cases: (i) that the spouse acts in his or her own name and in the name of another; in the latter case due to excess or lack of power; and (ii) that the spouse acts as if the property were his or her own. The first case, points out Professor Fernández Cruz, is resolved in accordance with that stipulated in article 161 of the Civil Code; in the second case, in accordance with the regulations pertaining to the sale of other people’s property”.
Finally, it is clear that the interests protected by Article 315 of the Civil Code are private (those of the spouses) and there is no general interest (or public order) here, which can be considered a general rule of the Peruvian legal system. For this reason, we consider that the so-called virtual nullity provided for by the majority decision of the ruling in question should not have been resorted to. And, paraphrasing Dr. Fernandez Cruz, when it comes to interests that are relevant to the restricted scope of family relationships, it is not appropriate to admit nullity as a legal consequence of this kind of legal business.
Judicial District: Lima
Date: 09/08/2016
I. Reason for the appeal:
This plenary session sought to determine whether it is possible, in the process of granting a public deed, which is processed in the summary procedure, to determine the validity or invalidity of the act whose formalisation is requested through this process.
II. Result of the appeal:
It was concluded that the judge can analyse the validity of the contract whose public deed is sought and, after having promoted the contradictory between the parties, can even declare the nullity of the legal act examined ex officio.
III. Comments:
In this regard, Dr. Martín Mejorada¹ points out that “the validity of the contract whose formality is sought must be examined and clarified. This is so because the form of the act is a consequence of the act itself, it is a right of the parties that emanates from the contract, therefore there would be no right to the form if the contract were not valid and effective. Consequently, in a process where the right to a certain form is being discussed, such as a public deed, it is essential to verify whether the contract in which this right exists is valid and whether its provisions are enforceable in view of this formality.
¹ Available at: https://www.youtube.com/watch?v=51Ykkthf53U (min. 1:25 en adelante)
