La oposición a la ejecución inmediata de sentencias no firmes en el proceso civil
- Martínez Navarro, José Juan
- Gemma García-Rostán Calvín Director
Defence university: Universidad de Murcia
Fecha de defensa: 07 December 2023
- Jordi Nieva Fenoll Chair
- Fernando Castillo Rigabert Secretary
- Alicia Armengot Vilaplana Committee member
Type: Thesis
Abstract
It is almost a cliché, in scientific works dedicated to the study of provisional enforcement in civil proceedings, to begin by highlighting the novel regulation which is the LEC (Ley de Enjuiciamiento Civil - Civil Procedure Act). However, and despite the fact that the current Civil Proceedings Act has been in force for more than twenty years, there has not been an excessive proliferation of monographic works (barely half a dozen) devoted specifically to the institution. Perhaps the cause of this, excuse us for returning to old clichés, is to be found in the traditional neglect of the study of procedural enforcement. The above statement becomes more evident when we focus on the concrete part of the opposition to provisional enforcement, which undoubtedly offers the most problematic aspect of this type of enforcement. The considerable progress made in the study of opposition to the ordinary enforcement of judicial titles has undoubtedly contributed, in view of the similarities that exist, to dispel many of the practical and theoretical doubts that have arisen in relation to this analogous incident. But the specificity of some grounds of opposition, specifically those based on the issuing, by the executing judge, of a prognostic judgement on the damages that could be caused to the defendant by the revocation of the judgement that was enforced against him or her, require addressing many questions raised in the course of their study from different points of view, some of them even foreign to the dogmatics. After clarifying the fundamental procedural concepts and categories that delineate the complete figure of provisional enforcement, we will address all the specific grounds, both procedural and substantive, that make up a system of opposition that is at times vague and, at others, contradictory. In addition to the complete exposition of the different doctrinal contributions, the study of a profuse forensic casuistry takes on special prominence in this work, which has served, in more than two decades of practical application of the LEC, to highlight the deficiencies in the regulations governing provisional enforcement, at the same time as it provides valuable material for the proposal of solutions and interpretations to overcome some errors that have been repeated over time. As is customary in the systematic arrangement of works of this nature, we have not failed to pay attention, in conclusion, to various procedural issues, which, although they are not highly regarded among scholars, sometimes seriously hinder the daily work of the courts of justice.