UNIVERSIDAD PRIVADA SAN JUAN BAUTISTA

FACULTAD DE DERECHO

ESCUELA PROFESIONAL DERECHO

PROGRAMA DE ESTUDIOS
VIRTUAL

TITLE:

what is process?

Proyecto Final

CURSO:

Ingles Técnico 1

LIMA – PERÚ
2023

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PROFESOR DEL CURSO:

Dr. RUBEN HUACHALA HANCO

PRESENTADO POR LOS ESTUDIANTES:

 LOO SUYO, AKEMY MARÍA SELENA

 DIAZ TORRES, LUISA
 MORALES ANTON, MARK PAUL
 TORNERO TOLEDO, KAREN LIZETH
 TORRES QUISPE, YALANI DE BELÉN

CICLO: 04

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What is a Process?

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 Dedication

Dedicated to our parents, for their constant support and

sacrifice that have made our university education possible.
To our professors, for their valuable guidance and shared
knowledge. To our friends and classmates, for the
unwavering spirit of collaboration. To all those who are
being part of our academic journey, this work is dedicated
to you, who are our source of inspiration and constant
motivation. Thank you for being part of this journey.

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 Gratitude

Heartfelt thanks to our parents, whose love and tireless

support is the beacon that is guiding us throughout our
university career. To our beloved professors, to whom we
owe a deep appreciation for their dedication and wisdom,
which have enriched our learning in unimaginable ways. To
our friends and fellow students, for the solidarity and
companionship that unites us in this journey. To all those
who are part of our academic journey, our most sincere
thanks for their invaluable contribution to our growth and
development.

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INDICE
What is a Process? ........................................................................................................... 3
Dedication ...................................................................................................................... 4
Gratitude ........................................................................................................................ 5
SUMARY (RESUMEN EN CASTELLANO) ..................................................................... 8
ABSTRAC (RESUMEN EN INGLÉS) .............................................................................. 9
INTRODUCTION: .......................................................................................................... 10
CHAPTER 1: GENERAL CONCEPTS .......................................................................... 12
DEFINITION .............................................................................................................. 12
OBJECTS OF A PROCESS TO FUNCTION ............................................................. 14
PROCEDURAL ACTIVITY......................................................................................... 15
GENERAL HISTORY OF THE PROCESS ................................................................ 17
Where did the Process come from? .................................................................... 19
IMPORTANCE OF THE PROCESS........................................................................... 20
CHAPTER 2: CLASSIFICATION AND STRUSTUCE OF THE PROCESS ................... 21
CONTENTIOUS AND NON-CONTENTIOUS PROCESSES...................................... 21
Contentious Proceedings: ................................................................................... 22
Non-Contentious Processes: ............................................................................... 24
STAGES OF THE PROCESS .................................................................................... 26
Stages of Civil Procedure in Peru ....................................................................... 27
Stages of the Criminal Process in Peru .............................................................. 29
CHAPTER 3: THOSE INVOLVED IN THE PROCESS .................................................. 31
SUBJECTS IN A PROCESS ..................................................................................... 31
The main subjects: ............................................................................................... 31
Additional Speakers: ............................................................................................ 32
The Role of the Public Prosecutor's Office:........................................................ 32
Procedural Guarantees and Fundamental Rights: ............................................. 32
Legal framework: .................................................................................................. 32
RESPONSIBILITIES OF THE JUDGE AND PARTIES IN THE PROCESS ............... 33
RESPONSIBILITY OF THE JUDGE: ..................................................................... 33
THE PARTIES TO THE PROCEEDINGS: .............................................................. 35
THE PUBLIC MINISTRY IN A PROCESS ................................................................. 38
Preparatory Investigation Conductor .................................................................. 38
Public Prosecutor ................................................................................................. 40
Party to the Appeal ............................................................................................... 42
Capacity and Leligitation of the Public Ministry ................................................. 42

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CHAPTER 4: PROCESSES ACCORDING TO THEIR SUBJECT ................................ 43
CIVIL PROCESSES................................................................................................... 43
Stages of the Civil Process .................................................................................. 43
CRIMINAL PROCESSES .......................................................................................... 43
What is a criminal process? ................................................................................ 43
What are the phases of the criminal process? ................................................... 44
Instruction or summary phase ............................................................................ 44
Intermediate phase ............................................................................................... 44
Oral trial phase ..................................................................................................... 45
Execution phase ................................................................................................... 45
CONSTITUTIONAL PROCESSES ............................................................................ 45
In Peru: .................................................................................................................. 46
Constitutional proceedings are divided into two categories:............................ 46
Challenges: ........................................................................................................... 47
CHAPTER 5: FINAL CONCEPTS ................................................................................. 48
CONCLUSIONS ............................................................................................................ 48
BIBLIOGRAPHY ........................................................................................................... 50

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 SUMARY (RESUMEN EN CASTELLANO)

El proceso judicial es el resultado de ejercer nuestro derecho de acción y pidiendo una tutela
jurisdiccional efectiva. Desde que la mayoría de ciudadanos en el mundo usa el derecho en sus
respectivas ciudades civilizadas, este ha ido evolucionando en su aplicación, es así como surge
el proceso judicial debidamente dicho. Este proceso es el conjunto de acciones legales que lleva
a cabo todas las partes involucradas en un proceso (el demandante, el demandado, el juez, etc.)

Un proceso empieza cuando el sujeto activo presenta una demanda ante el órgano
correspondiente del poder judicial, es ahí cuando la otra parte contesta haciendo valer su
derecho de contradicción. Cabe a resaltar que en un proceso se pueden involucrar personas
naturales, jurídicas, entidades públicas y el mismo estado.

Dentro de un proceso, basándonos en nuestra legislación, hay 5 etapas, estas son; la

postulatoria, probatoria, decisoria, impugnatoria y decisoria. En cada una de ellas hay diferentes
acciones procesales que impulsan el proceso a su finalidad, que es la resolución del conflicto o
controversia presentada.

Podemos decir que hay varios derechos que se involucran en un proceso para que este se realice
de la mejor manera, algunos de ellos es el derecho al debido proceso y tutela jurisdiccional, tal
y como se muestra en el inciso 3 del artículo 139 de nuestra constitución. Siempre prevaleciendo
la justicia en un proceso justo y equilibrado. Si no se dan este tipo de regulaciones en el proceso,
no se aplicaría adecuadamente el mismo, vulnerando muchos derechos que incluso tiene un
grado constitucional.

Los procesos son esenciales para regular el comportamiento de la sociedad, resolver disputas,
aplicar el ordenamiento jurídico creado por el país correspondiente, proteger los derechos del
ciudadano, promocional confianza en el sistema legal y brindar justicia al quien pide la apertura
de un proceso y todos los involucrados.

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 ABSTRAC (RESUMEN EN INGLÉS)

The judicial process is the result of exercising our right of action and requesting effective
jurisdictional protection. Since the majority of citizens in the world use the law in their respective
civilized cities, it has been evolving in its application, this is how the judicial process duly arose.
This process is the set of legal actions carried out by all the parties involved in a process (the
plaintiff, the defendant, the judge, etc.)

A process begins when the active subject presents a claim before the corresponding body of the
judiciary; that is when the other party responds by asserting its right to contradiction. It should be
noted that natural persons, legal entities, public entities and the state itself can be involved in a
process.

Within a process, based on our legislation, there are 5 stages, these are; the postulatory,
evidentiary, decisive, challenging and decisive. In each of them there are different procedural
actions that drive the process to its purpose, which is the resolution of the conflict or controversy
presented.

We can say that there are several rights that are involved in a process so that it is carried out in
the best way, some of them are the right to due process and jurisdictional protection, as shown
in section 3 of article 139 of our constitution. Justice always prevails in a fair and balanced
process. If these types of regulations are not in place in the process, it would not be properly
applied, violating many rights that even have a constitutional degree.

The processes are essential to regulate the behavior of society, resolve disputes, apply the legal
system created by the corresponding country, protect the rights of the citizen, promote confidence
in the legal system and provide justice to those who request the opening of a process and all
those involved.

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 INTRODUCTION:

In the intricate world of Law, the term "process" emerges as a fundamental concept, a legal entity
whose significance and functionality transcends the limits of mere semantics to become the
central axis on which the administration of justice in our societies gravitates. The process,
conceived as a normative structure and a conflict resolution mechanism, is an inescapable
element of the legal system, the instrument par excellence that allows the materialization of the
rights and obligations established in the law.

The notion of process finds its roots in the most primitive structures of law. From ancient Roman
law, through the conceptions of canon law to modern codifications and contemporary legal
systems, the process has undergone a continuous process of evolution, adaptation and
refinement. In its essence, the process is presented as the vehicle through which access to justice
is guaranteed, the rights and duties of the parties involved are defined, transgressions to the legal
system are sanctioned and impartiality and equity are ensured in the resolution of controversies.

The process is the set of legal and procedural acts through which disputes are settled and legal
truth is established in an adversarial context. It is a mechanism that, with the meticulousness of
legal science, describes the stages, deadlines, resources, formalities and principles that regulate
the development of a litigation from its genesis to its conclusion. In this complex web of acts and
formalities, the process is endowed with a structure that varies from one legal system to another,
but shares essential elements such as the right of defense, orality, publicity, impartiality of the
judge and equality of the parties.

The process, as a dynamic phenomenon, constantly evolves and adapts to changing social,
political and economic realities. Thus, it has undergone significant transformations in the era of
globalization, information technology and the demands of an increasingly diverse and complex
society. The digitization of court records, the expansion of alternative justice and the
strengthening of out-of-court dispute resolution mechanisms are just some examples of the trends
shaping the face of contemporary litigation.

In this paper, we propose to explore in depth the concept of process in the legal sphere,
addressing its historical, theoretical and practical dimensions. Through a thorough analysis, we
will examine how the process stands as a fundamental pillar in the guarantee of justice, how it
relates to other related concepts such as procedure and jurisdiction, and how it adapts to the
challenges of the 21st century. Ultimately, our aim will be to unveil the multiple edges of a legal

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phenomenon that, despite its apparent complexity, is essential for peaceful coexistence and
respect for fundamental rights in our societies.

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CHAPTER 1: GENERAL CONCEPTS

DEFINITION

The processes themselves are a sum of procedural activities that help resolve a dispute
involving a person or natural or legal persons.

These are also defined as the administrative system of justice. This is created by the need
to have legal instruments that can carry out good administration and delivery of justice.

These processes can be carried out depending on the matter that uses it, whether in civil,
criminal, constitutional matters, among others. This in turn presents a well-defined structure
so that those who use it can take it as a legal guide to achieve its purpose, which is to resolve
a dispute between both parties through judicial means.

In Peruvian legislation we consider the process a lot, which is why one of the principles in
our civil procedural code is the principle of due process.

According to Aguledo M. (2005) they define us that:

Due process is a complex fundamental right of an instrumental

nature, containing numerous guarantees for people, and
constitutes the highest expression of procedural law. It is an
institution integrated into the Constitution and that enables the
accession of subjects who seek clear protection of their rights.
It is a fundamental right that is generally integrated into the
dogmatic parts of the written Constitutions recognized as a first
generation right as it is part of the group of rights called
individual, civil and political, considered the fundamental rights
par excellence. (page 2)

With this we can say that the processes in law serve as a way to control the needs of society
with respect to the conflicts that arise when being in constant interaction with each other and
we are not only talking about normal people, but in the interaction . between legal entities
such as private and public entities.

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As additional information, the same state can be part of a process either as a party or for
reasons mentioned by law.

The procedural provisions in the law must be regulated by the same legal system, precisely,
in the constitution. Any type of process used in any matter must be under the conditions of
non-violation of constitutional norms, since, if any constitutional right is affected, it could harm
due process and, as a consequence, the process could even be annulled. process that is
being carried out before obtaining a resolution.

As shown in the civil procedural code, in our legal system we all have the right to jurisdictional
protection, this is defined as the recognition before Peruvian legislation that we have rights
and that we can take action if these are violated in one way or another. manner. Effective
jurisdictional protection is the action of using the process to make use of our right to go to
the judiciary and use a procedural route in the event of a violation of our rights.

According to Muñoz H. (2012) he argues that:

The process is an instrument of social pacification, it is an ideal

means of certainty in social relations in a given community and
if the resolution of a conflict, whatever its content, restores
peace or consolidation, it seems to us that it comes very close
to justice as a value and this must be obtained through the
search for truth.

For a process to exist, there must necessarily be litigation, that is, conflicts or controversies,
although there are also processes in which litigation is not the main thing on the table, since
there are processes in which there are no controversies, but that will be seen. later.

Another vital point in a process is the claims, the core, the request or what the plaintiff asks
for. When a process begins, the first thing there is is a lawsuit, this is regulated according to
law and it contains the facts (version of the active subject) and the rights violated along with
the claims of the plaintiff.

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According to Echandía H. (2013) he argues that:

Procedural law, because it refers to one of the essential

functions of the State, is a public right, with all the
consequences that this entails; That is, its rules are public
order; They cannot be repealed by agreement between the
interested parties; They are generally mandatory and prevail in
each country over foreign laws. (page 36)

We can conclude our definitions by stating that procedural law is public in Peru, and is not
limited only to citizens, but also to any entity that is within our jurisdiction or territory.

OBJECTS OF A PROCESS TO FUNCTION

The object or purpose of procedural law is to provide a fair, efficient and orderly process,
ensuring that all parties are treated fairly and that a fair and appropriate resolution is reached
in each case.

In society there is interaction between individuals and entities, due to this relationship, from
time to time conflicts arise that end up in court, which is why, through processes, it is possible
to end each problem in society. Within our country the processes are designed to adapt to
the branch of law that needs it, an example of them would be the constitutional processes,
since as we know these depend on the constitutional guarantees that are reflected in article
200 of our constitution.

We must also keep in mind that depending on the rights that are violated, our processes can
even reach the Inter-American Court of Human Rights, that is, at the international level.

In each process, the aim is to recover the right violated by the taxpayer or defendant, through
procedures written by law, an attempt will be made to resolve the conflicts by establishing
responsibilities and reparations or compensation with the purpose of providing compensation
to the plaintiff for the violation of their rights.

By object we refer to the purpose of the process, that is, for which it was created, this has
already been said in the definitions and will be seen in the subtopics subsequently mentioned.
But if we talk about another type of object which is the thing used by the process to function,

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we talk about something else. If we base ourselves on that context, we would be referring to
a conflict, the law, the parties, etc. since these are the objects used by the process to move
forward.

Without conflict or controversy, there would be no judicial process to carry out, because as
we know, processes are those that mostly see issues of conflict, and those that are not
contentious do not necessarily have to be dealt with in the courts, but rather the judicial power
itself gives other ways such as notarial to resolve non-contentious cases, an example would
be an intestate succession. Since, in this case, if the heirs reach an agreement, they simply
distribute the inheritance in a notarial manner, but if they disagree and want to fight, that is
where the process would begin.

Another important object for a process to prosper are the parties. To begin with, the will of
the parties to act is vital to advance the process; if there is no will, it can simply be annulled
by archiving it.

Jurisdictional auxiliaries and judicial aid bodies are also important for the proper functioning
of the process. To carry out an evaluation of all procedural acts and reach a verdict, a judge
needs support from those who work in the same judicial branch such as secretaries, and also
external help such as experts, the PNP, etc.

The norm is also an object of the process, since it is the guiding framework and regulates the
judicial process. It provides the rules of the game, if you can call it that, it guarantees
consistency and fairness in judicial decision-making and ensures that the parties are treated
according to established legal standards. Likewise, it forces the parties to adhere to the law
and work in accordance with it.

As can be seen, those objects that are part of a process are important to fulfill its purpose.
Without them there is a risk of violating even constitutional rights.

PROCEDURAL ACTIVITY

The procedural activity is all the acts carried out in the same process from the beginning of
the same with the postulation stage, until the execution of the resolution issued by the
corresponding judge.

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To better explain procedural activities, we will take civil law as a sample of everything that
has to be done in a process regarding the issue that is under discussion in the process. It
must be taken into account whether the process is contentious or non-contentious, since
both have some differences with respect to their procedural activities.

It can be said that there are several types of procedural acts depending on their purpose,
some of them are; procedural acts of accusation (those that are clearly carried out to dismiss
and indict your counterpart), procedural acts of conciliation (those that are seen at the time
of conciliation), procedural acts of evidence (those that have to do with the means of proof ),
urgent procedural acts (they are those that are of urgency for the process, these can be
accepted even at the stage in which they do not correspond), among others that are carried
out depending on their function.

We must also take into account that procedural acts are not only exercised by the parties,
but also by judges, jurisdictional assistants and judicial aid bodies. All movements of anyone
involved in the process are considered a procedural act.

According to the provisions of article 119 – A of the civil procedural code, the procedural acts
must be accessible to the parties. This means that those parties who, due to some disability,
cannot adequately carry out these acts, will be given the facilities so that they can carry them
out and thus not violate due process.

The procedural acts of the parties must meet certain requirements such as the form in which
it is presented, according to article 130 of the civil procedure code, this is in written form.
Then in other articles we talk about the signature that these documents must have, which
must be done by the parties or their representatives.

Another point to talk about is that of your lawyer, since the parties must present a document
in which they authorize a lawyer to represent them. This document must contain the name
of the lawyer, the member and registration number.

Then we have the procedural acts of the judge, which is of greater rigor, since he is the one
who will direct the process so that it is carried out and fulfills its purpose without violating any
rights of the parties or those involved in the process.

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Firstly, judicial resolutions and actions must not have abbreviations and must contain the
dates and amounts written clearly. Any number and identity documents should not be written
incorrectly either, since, if a poorly written document is made, there is a risk of its cancellation.

The judge, within his different actions, can make decrees, orders and sentences. The
decrees promote the development of the process, the orders are used to resolve the
acceptance or rejection of a claim, as well as its counterclaim, sanitation, interruption,
conclusion and special forms of conclusion. And, finally, the sentences are used by the judge
to end the process, these must be duly motivated since if any of the parties is not satisfied,
they can resort to the challenge, although if this does not happen, the process will officially It
will be concluded and the case will become res judicata.

As can be seen, both the parties and the judge himself have procedural acts to carry out, it
should be noted that these acts have deadlines to be carried out and times for their
presentation. Obviously there are also exceptions by which some act can be considered
despite the deadline for carrying it out having passed.

Another point is the admissibility of this procedural act, since the judge is the one who will try
to make the process as efficient and useful as possible, which is why he is the one who
chooses which actions will be considered in the process. It should also be taken into account
that, for the most part, the procedural acts carried out by anyone involved in the process will
be notified to the parties.

With this we can conclude that the procedural acts are those that drive the process and
ensure its continuity until the final ruling that will put an end to the process. The acts are not
only presented through documents, but are also expressed in the oral trial if required.

GENERAL HISTORY OF THE PROCESS

The overall history of a process in law is broad and varied, as it has evolved over time and
has been shaped by different cultures, legal systems, and historical contexts. Here's an
overview of the historical evolution of legal processes:

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1. Seniority:
· In ancient times, various cultures had their own dispute resolution systems. For
example, in ancient Greece, the "agorah" was practiced as a place where public debates and
dispute resolution took place.
· In the Roman Empire, a more formalized legal system developed with judicial
procedures and the figure of the judge.

2. Middle Ages:
· During the Middle Ages, the European legal system was heavily influenced by the
Church. Methods such as ordeals (physical tests to determine guilt) and God's judgment
were used.
· In medieval England, the common law system developed, which was based on earlier
court decisions and custom.

3. Renaissance and the Formation of Modern States:

· With the Renaissance, there was a resurgence of interest in Roman and Greek law,
which influenced the evolution of legal systems.
· During this period, ideas of a more formalized legal process and separation of powers
emerged.

4. Illustration & Coding:

· During the Enlightenment, ideas of equality before the law and fundamental rights were
promoted. Legal codes, such as the Napoleonic Code, emerged that sought to systematize
and unify the law.
· In the nineteenth century, many countries adopted civil and procedural codes.

5. 20th century:
· There was greater specialization in the law, with the creation of specialized courts and
more detailed procedures.
· Globalization and technological advancements also influenced the evolution of legal
processes.

6. Today:
· Modern legal systems often combine elements of ancient legal traditions with
contemporary innovations.
· Technology has had a significant impact on legal proceedings, with the introduction of
computing, video conferencing, and electronic document management.

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Where did the Process come from?

In the context of law, the process is rooted in the need to resolve disputes and conflicts in an
orderly and fair manner. The notion of legal process arises as a means of resolving conflicts
and determining the truth in situations where there is disagreement between the parties. The
evolution of the legal process can be traced throughout history, but here are some key
influences:

1) Ancient legal systems:

· In ancient civilizations, such as the Roman and Greek, procedures for resolving disputes
already existed. Courts and magistrates were used to decide cases.

2) Customary law and common law:

· In the Middle Ages, particularly in England, common law developed, which was based
on earlier court decisions and custom. This approach laid the groundwork for what would
later be known as the common law system.

3) Codification of the law:

· During the periods of the Enlightenment and the rise of modern states, there was an
attempt to systematize and codify the law. This led to the creation of legal codes, such as the
Napoleonic Code in France, which established more formal and uniform legal procedures.

4) Procedural safeguards:
· Over time, procedural safeguards were recognized and developed to protect the rights
of parties involved in a legal process. These guarantees include the right to a fair trial, the
right to be heard, and the right to defense.

5) Modern Judicial Systems:

· In the 20th century, modern judicial systems incorporate more structured and complex
procedures. Procedural rules shall be established to guide the conduct of the parties to the
dispute and to ensure fairness and efficiency in the resolution of disputes.

6) Influence of technology:
· In the contemporary era, technology has had a significant impact on the way legal
processes are conducted. Digitalization, videoconferencing, and other technological tools
have changed the dynamics of court proceedings.

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In a nutshell, the history of a process in law reflects the evolution of societies and their
conceptions of justice, equality, and dispute resolution over time. Today's legal systems are
the result of a long history of developing and adapting to the changing needs of society. We
also say that the process in law arises from the need to address conflicts in an organized
and fair manner. Over time, it has evolved in response to societal demands, adopting
fundamental principles of justice and adapting to changes in culture, technology, and legal
structure.

IMPORTANCE OF THE PROCESS

Process in law is of vital importance, as it fulfills several fundamental functions in the

administration of justice and in the protection of the rights of individuals. Here are some of
the key reasons why process is essential in the legal realm:

1. Dispute Resolution:
· The legal process provides a structured and orderly framework for resolving disputes
and conflicts between parties. It allows controversies to be presented, argued, and decided
in a fair and equitable manner.

2. Guarantee of Rights:
· Through the process, it ensures that the parties involved in a dispute have the
opportunity to be heard, present evidence, and defend their rights. This helps to guarantee
due process and a fair hearing, which are fundamental aspects of justice.

3. Establishment of Facts and Law:

· The legal process facilitates the determination of the relevant facts and the application
of the law applicable to each case. This involves the presentation of evidence, legal
arguments, and the interpretation of applicable laws.

4. Legal Precedent:
· Legal processes and their outcomes contribute to the formation of legal precedents.
Judicial decisions establish rules and principles that can influence future cases and provide
guidance for the interpretation and application of the law.

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5. Legal Certainty:
· The legal process brings stability and predictability to the legal system. By following
established procedures and respecting procedural principles, legal certainty is promoted,
which means that people can trust that their rights will be treated consistently and fairly.

6. Control of State Power:

· The process acts as a mechanism to check the power of the state by providing limits
and procedures that must be followed for law enforcement. This helps prevent abuses and
protects citizens against arbitrary actions.

7. Justice and Equity:

· Through the process, it seeks to strike a balance between justice and equity. Legal rules
and procedures seek to ensure that judicial decisions are fair and that the fundamental rights
of all parties involved are respected.

8. Trust in the Judicial System:

· The existence of a transparent and fair legal process contributes to society's trust in the
judicial system. The perception that courts function impartially and fairly is essential to the
legitimacy of the legal system as a whole.
Process in law plays a central role in the administration of justice, ensuring the protection of
individual rights, establishing legal norms and contributing to stability and confidence in the
legal system.

CHAPTER 2: CLASSIFICATION AND STRUSTUCE OF THE PROCESS

CONTENTIOUS AND NON-CONTENTIOUS PROCESSES

Legal proceedings are classified into two main categories: contentious proceedings and non-
contentious proceedings. These categories refer to the nature of the dispute or legal matter
being dealt with and affect how the process is conducted.
Now, I will present a brief summary of what a contentious process is:

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Contentious Proceedings:

Definition:

 Contentious proceedings are those in which there is a real and active dispute
between opposing parties seeking resolution by a judicial authority. These processes
are characterized by the existence of a conflict that requires the intervention of a court
to make binding decisions, plays an active role in the resolution of the dispute.

Characteristics:

 Contradiction: The parties have opposing interests and present arguments

and evidence to support their positions.

 Binding Judicial Decision: The court issues a decision that resolves the
dispute. This decision is binding on the parties involved.

 Litigating Parties: The parties involved in a contentious process are litigants.

They can be individuals, businesses, or other legal entities that have opposing
interests and are seeking a court ruling.

 Evidence and Arguments: The parties present evidence and arguments to

support their claims or defend themselves against the claims of the other
party. This may involve the submission of testimonies, documents, expert
reports and other evidence.

 Right to Defense: In contentious proceedings, the parties have the right to

be heard and to present their arguments and evidence. Due process is
guaranteed, which implies fair and equitable treatment.

 Examples of Contentious Proceedings: Civil Trials: disputes over

contracts, damages, property, etc. Criminal Trials: Proceedings involving the
prosecution of a crime and the imposition of criminal penalties. Custody and
divorce disputes. Commercial litigation.

 Appeal: In many legal systems, parties have the right to appeal a court's
decision in a contentious proceeding. An appeal allows a higher court to
review the decision to ensure its legality and fairness.

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Examples:
 Civil Lawsuits:

An individual sues another person for breach of contract, alleging that the other party failed
to comply with the agreed-upon terms.

 Divorce:

A marriage dissolves, and the parties dispute the division of property, child custody, and the
payment of alimony.

 Commercial Litigation:

Two companies have a contractual dispute over the supply of goods or services, and one of
them sues the other for breach.

 Tort Cases:

One person sues another for damages resulting from a car accident, arguing that the other
party was negligent and led to injuries and economic losses.

 Eviction:

A landlord sues a tenant for nonpayment of rent or for violation of the terms of the lease,
seeking recovery of the property.

 Criminal Cases:

The state files charges against an individual accused of committing a crime, such as robbery,
assault, or fraud. The criminal process seeks to determine guilt and apply sanctions.

 Property Disputes:

Two neighbors have a dispute over their property boundaries, and one of them sues the other
to resolve the ownership issue.

 Inheritance and Wills:

After a person's death, heirs can dispute the validity of a will or the distribution of assets.

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  Custody Rights:

Example: In a divorce case, parents can dispute custody of their children, and the court must
make a decision based on the best interests of the child.

Contentious processes are essential for the administration of justice, as they allow for the
resolution of disputes through the intervention of a court that issues a legally binding decision
for the parties involved.

Non-Contentious Processes:

Definition:

 Non-contentious processes are those in which there is no active dispute between

opposing parties. Rather than a conflict, these processes involve conducting legal
procedures to obtain a resolution without the need for litigation.

Characteristics:

 Collaboration or Consent: The parties may agree on most aspects of the

legal matter or, in some cases, it may be unilateral proceedings.

 Administrative or Notarial Decisions: Rather than relying exclusively on

court decisions, the results of non-contentious processes are often obtained
through administrative, notarial or other similar mechanisms.

 Lack of Active Dispute: The most prominent feature is the absence of an

active dispute between litigating parties. In these processes, the parties
generally agree on most, if not all, aspects of the legal matter.

 Unilateral or Collaborative Procedures: Some non-contentious processes

may be unilateral, where one party initiates the process without the need for
the active participation of the other party. Others may require the cooperation
of all parties involved.

 Protection of Rights: Although the parties may agree, it is still expected that
each other's fundamental rights will be respected. Non-contentious
proceedings should ensure that all parties are properly informed and have the
opportunity to express their wishes.

24
  Efficiency and Simplification: Non-contentious processes tend to be more
efficient and streamlined compared to contentious processes. This often
translates into less time and cost associated with resolving the legal matter.

 Examples of Non-Contentious Proceedings: Adoptions, name changes,

wills and successions without disputes, declaration of absence or presumed
death, liquidation of assets in divorce by mutual agreement, conciliation and
mediation.

 Less Conflict: Although there may be disagreements in certain aspects, the

non-contentious nature implies less conflict compared to processes in which
there is an active dispute.

Examples:
 Adoption procedures.

Adoption is a non-contentious process in which a person or couple legally seeks to become

the adoptive parents of a child. In this case, all parties involved, including the birth parents,
adoptive parents, and the child, agree to the adoption.

 Name Change:

A person can legally apply for a name change without litigation if they meet the requirements
set forth by law and there is no significant opposition.

 Wills and Probate without Disputes:

When a person fails and leaves a clear and unambiguous will, and there is no disagreement
among the heirs, the distribution of assets can be a non-contentious process.

 Declaration of Absence or Presumed Death:

When a person disappears and is presumed absent or dead, the legal procedures for officially
declaring that absence or death may be non-contentious if there are no disputes between
the parties concerned.

 Liquidation of Common Property in Divorce by Mutual Consent:

In some divorce cases, if the parties agree on the division of property and other matters, the
process may be non-contentious. This is particularly true in cases of divorce by mutual
consent.

25
  Conciliation and Mediation:

Although not legal processes per se, conciliation and mediation are non-contentious methods
of resolving disputes. The parties work with a neutral third party to reach an agreement
without having to go to court.

 Declaration of Heirs:

When a person fails without a will and there are no disputes over the inheritance, the process
for declaring legal heirs may not be contentious.
In non-contentious processes, the main goal is to follow established legal procedures to
obtain agreed-upon results without formal litigation in a court of law.
It is important to note that in many legal systems, the distinction between contentious and
non-contentious proceedings may vary, and some cases may have elements of both
categories. In addition, specific rules and procedures may differ by jurisdiction. However, this
general classification provides a basic understanding of how different types of legal matters
are approached in the judicial arena.

STAGES OF THE PROCESS

They refer to the sequential and orderly phases that make up a litigation or legal proceeding.
These stages are fundamental for the organization and development of a case, both in the
civil and criminal fields. Broadly speaking, the stages include the filing of the claim, the
admission of the claim, the presentation of evidence, the closing arguments, and the
issuance of the judgment. In the criminal process, stages such as the preliminary
investigation, the formalization of the investigation, the oral trial and the sentencing are
added.

The Peruvian legal system, based on the Code of Civil Procedure, the Code of Criminal
Procedure and other specific regulations, strives to ensure the fair and equitable resolution
of disputes in various legal areas. The structure of the legal process is tailored to the nature
of the dispute, whether civil, criminal, or administrative.

26
Stages of Civil Procedure in Peru

Demand:
In the Peruvian legal context, the lawsuit is the initial procedural act that initiates civil litigation.
It is the tool by which a person, called the plaintiff or plaintiff, presents his or her claims and
sets out the facts on which he or she bases his or her claim before the Judiciary. The lawsuit
is the first step for the Peruvian legal system to address and resolve disputes between
parties.

Lawsuit Preparation:
Before filing the lawsuit, the plaintiff, with the advice of an attorney, must prepare a detailed
document that includes the identification of the parties, a clear narrative of the facts on which
the claim is based, the specific claims, and the available evidence.

Content of the Lawsuit:

The application must contain accurate and complete information. It must include the
identification of the parties with their respective addresses and personal details, a clear
statement of the relevant facts, the specific claims being pursued and, where appropriate,
the quantification of the damages claimed.

Attached Documentation:
It is common for the lawsuit to be accompanied by documents that support the alleged facts,
such as contracts, invoices, emails, among others. These documents are essential in support
of the applicant's claims.

Presentation to the Judiciary:

Once prepared, the application is filed with the appropriate court. In Peru, the presentation
is usually made to the Bureau of Parties of the Judiciary or the competent jurisdictional entity
to hear the case.

Admission of the Application:

After filing, the lawsuit is reviewed by the judge. This examination seeks to determine whether
the lawsuit meets the formal requirements established by law. If these requirements are met,
the judge admits the application and notifies the parties of this fact.

The parties are notified of the acceptance of the claim and the process is officially initiated.
Notice to Respondent:

27
After the application has been admitted, the defendant is notified to take cognizance of the
claims against him and to have the opportunity to submit his response within a specified
period.

The filing of the lawsuit marks the formal start of the judicial process and establishes the
framework within which the following stages will take place. It is a crucial act that demands
precision and care in the formulation of claims and the presentation of evidence, as it lays
the groundwork for the resolution of the dispute.

Response to the Complaint:

The respondent has a specific deadline to file its response, which may consist of accepting
or denying the facts alleged, as well as filing exceptions or defenses.
This stage is crucial for defining the points of conflict and laying the foundation for the later
phases.

Evidentiary Stage:
An evidentiary hearing is held where both parties present evidence to support their
arguments.

The presentation of witnesses, experts and relevant documents is allowed to strengthen the
cases.

Closing Arguments:
The parties present their closing arguments, recapping the evidence presented during the
evidentiary stage.

This phase provides an opportunity to persuade the judge of the most appropriate
interpretation of the facts and the applicable law.

Sentence:
The judge issues a ruling that resolves the dispute. It may include provisions on legal costs
and other additional issues.

The parties may appeal if they believe that the judgment contains substantial errors or
procedural violations.

28
Stages of the Criminal Process in Peru

Preliminary Investigation:
The preliminary investigation in Peruvian criminal proceedings plays a decisive role in the
administration of justice, allowing a rigorous evaluation of the facts denounced before
initiating a formal process. This process seeks to ensure that only cases with sufficient
grounds reach trial, protecting the rights of those under investigation and strengthening the
credibility of the judicial system.

Initiation of the Preliminary Investigation:

The preliminary investigation begins with the news of an alleged crime. This news can come
from citizen complaints, police reports, or from the Public Prosecutor's Office's own initiative.

Role of the Public Prosecutor's Office:

The Public Prosecutor's Office is the body responsible for conducting the preliminary
investigation. The prosecutor, in his capacity as the head of the criminal prosecution, has the
power to conduct investigations, collect evidence and determine the feasibility of conducting
a criminal trial.

Actions of the Public Prosecutor's Office:

During the preliminary investigation, the prosecutor may carry out various actions, such as
taking statements from witnesses, obtaining expert reports, analysing documents and
conducting inspections or proceedings to collect evidence.

Term of the Preliminary Investigation:

The preliminary investigation has a time limit defined by law, usually 60 days. However, this
deadline may be extended in exceptional and complex circumstances.

Formalization of the Research:

At the end of the preliminary investigation, the prosecutor decides whether there is sufficient
evidence of the commission of the crime. If so, formalize the investigation by filing a formal
accusation with the preparatory investigation judge.

Rights of the Respondent:

During the preliminary investigation, the rights of the person under investigation are
respected, such as the right to defence and the right not to incriminate himself. The person
under investigation has the right to be assisted by a lawyer from the beginning of the
investigation.

29
Control Judicial:
The preparatory investigation judge has a fundamental role in the control of the preliminary
investigation. It evaluates the legality of the actions of the Public Prosecutor's Office and
decides on the formalization of the investigation, as well as on precautionary measures such
as preventive detention.

Archiving or Continuation of the Process:

At the end of the preliminary investigation, the prosecutor may decide to close the case if
there is insufficient evidence to prosecute. Otherwise, if the investigation is formalized, the
process proceeds to the intermediate stage and, eventually, to the oral trial.

Formalization of the Research:

The prosecutor presents the indictment to the judge, who evaluates the evidence and
decides whether there is enough evidence to formalize the charges.

During the hearing, precautionary measures, such as preventive detentions or travel

restrictions, may be issued.

Intermediate Stage:
The indictment is presented and the defense responds with its arguments. The judge decides
whether the case should go to trial.

This stage is crucial for filtering out baseless cases and avoiding unnecessary lawsuits.

Oral Trial:
A public trial is held where the parties present their evidence and arguments.

Transparency at this stage is essential to ensure the fairness of the process and the
acceptance of the judgment.

Sentence:
The judge issues a sentence that may be either a conviction or an acquittal. Penalties and
corrective measures may be imposed depending on the seriousness of the offence.

The parties have the right to appeal for a more thorough review.

The legal process in Peru, both civil and criminal, reflects a commitment to justice and equity.
Understanding the various stages is essential for those involved in the legal system and

30
highlights the importance of having adequate legal advice at every stage of the process. The
adaptability of the system allows for efficient and effective dispute resolution, promoting
confidence in the administration of justice in the country.

CHAPTER 3: THOSE INVOLVED IN THE PROCESS

SUBJECTS IN A PROCESS

The Peruvian legal system establishes a procedural structure that involves various subjects,
each with specific roles and responsibilities. These subjects play a crucial role in the
administration of justice and the protection of the fundamental rights of the parties involved
in a legal process. This essay will explore the different subjects in a legal process in Peru,
highlighting the relevant legal provisions that regulate their functions.

The main subjects:

1. Parties:
In the Peruvian legal framework, the parties are the individuals or entities that have a direct
interest in the case. They can be plaintiffs or defendants, and their participation is essential
to the development of the process. Article 4 of the Peruvian Code of Civil Procedure
establishes the requirements and rights of the parties in civil proceedings.

2. Judges:
Judges are fundamental figures in any legal process. Their duty is to ensure that the process
is conducted in a fair and impartial manner. The Organic Law of the Judiciary of Peru
establishes the qualities and responsibilities of judges in the exercise of their functions.

3. Lawyers:
Attorneys represent the parties and act as legal intermediaries. The Code of Ethics for
Lawyers in Peru establishes the ethical standards that lawyers must follow during a process,
thus guaranteeing integrity and professionalism in their performance.

31
Additional Speakers:

1. Experts:
In cases that require specialized knowledge, experts may be appointed to provide technical
reports. The Expert Witness Law in Peru regulates the performance of experts in judicial
proceedings.

2. Witnesses:
Witnesses provide testimony about the relevant facts of the case. Peru's Criminal Procedure
Law sets out guidelines for the presentation of testimony and the protection of witnesses.

The Role of the Public Prosecutor's Office :

In certain cases, the Public Prosecutor's Office may intervene as a party to a judicial
proceeding. Their participation is essential to ensure legality and the protection of public
interests. The Public Prosecutor's Office may present opinions, request evidence, and
participate in hearings, ensuring that the judicial process complies with fundamental
principles of justice.

Procedural Guarantees and Fundamental Rights:

Subjects in a judicial proceeding in Peru are protected by various procedural guarantees and
fundamental rights. These include the right to a fair trial, the right to a defence, the right to
present evidence, and the right to be heard. The legal structure seeks to balance the interests
at stake and ensure that all parties are treated with fairness and respect.

Legal framework:

The Peruvian Code of Civil Procedure1 and the Political Constitution of Peru2 establish the
legal bases that govern the participation of subjects in a judicial process. For example, Article
X of the Code of Civil Procedure details the rights and duties of the parties, while the
Constitution guarantees the fundamental rights of all persons involved in a legal process.

In short, the participation of the parties, the co-participants and the Public Prosecutor's Office,
together with procedural guarantees and fundamental rights, form a comprehensive

1 Code of Civil Procedure

2 Political Constitution of Peru

32
framework that seeks equity and justice in the resolution of legal disputes in the country.
Consistent and fair enforcement of these legal provisions is crucial to maintaining trust in the
judicial system and ensuring the protection of the rights of all involved.

RESPONSIBILITIES OF THE JUDGE AND PARTIES IN THE PROCESS

RESPONSIBILITY OF THE JUDGE:

The responsibility of the judge is a fundamental element in the Peruvian judicial system.
Impartiality, objectivity and respect for legal principles are essential pillars to ensure integrity
and trust in the judicial process. This monograph examines the nature and limits of the
judge's responsibility in the Peruvian legal context.

Guiding Principles of Judge Responsibility in Peru

Independence and Impartiality:

The judge must act independently and free from external influences, ensuring impartiality in
his decisions.

Peru's Constitution clearly establishes judicial independence as a fundamental principle.

Legality and Reasons for Decisions:

Judicial decisions must be based on legality, and judges are obliged to give reasons for their
decisions, explaining the reasons and legal basis for their decisions.
Failure to state adequate reasons may lead to the review and annulment of decisions by
higher courts.

Due Process and Fundamental Rights:

The judge has a responsibility to ensure due process and respect the fundamental rights of
the parties involved in the litigation.

Any violation of these principles may result in disciplinary action and administrative liability.

Disciplinary Responsibility of the Judge

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Judicial Control Bodies:
In Peru, the Office for the Control of the Judiciary (OCMA) is the body responsible for
supervising the conduct of judges.

This body has the power to receive complaints, investigate complaints and apply disciplinary
sanctions in case of inappropriate conduct.

Causes of Disciplinary Liability:

Negligence, lack of ethics, unwarranted delay in resolving cases, and violation of ethical and
legal principles are common causes of disciplinary liability.

The OCMA conducts thorough investigations to determine whether a judge has committed
any of these offenses.

Criminal Liability of the Judge

Prevarication and Other Crimes:

The judge may face criminal liability in cases of malfeasance, corruption, bribery, among
other crimes.

The commission of illegal acts can lead to separate criminal proceedings, with the possibility
of dismissal and criminal sanctions.

Civil Liability of the Judge

Damage to the Parties:

If a judge acts negligently and causes harm to the parties in the proceeding, they may be
subject to civil liability.

Injured parties can file civil lawsuits seeking compensation for the damages suffered.

The responsibility of the judge in the Peruvian judicial process is a comprehensive concept
that encompasses various aspects, from impartiality and legality to disciplinary, criminal and
civil liability. The existence of control mechanisms, such as the OCMA, and clarity of ethical
and legal principles are essential to maintain the integrity of the judicial system. The proper

34
application of the judge's responsibility contributes to public confidence in justice and
strengthens the rule of law in Peru.

THE PARTIES TO THE PROCEEDINGS:

The Peruvian legal system, inspired by fundamental principles of justice and equity, gives a
crucial role to the parties involved in a judicial process. This paper examines in detail the
importance and rights of the parties in the context of the Peruvian legal process.

Types of Parts

Plaintiffs:
The plaintiff, also known as the plaintiff, is the one who initiates the process by filing a lawsuit
before the Peruvian Judiciary.

You have a responsibility to make your case clearly and back up your claims with evidence.

Defendant:
The defendant is the party against whom the lawsuit is filed. You must respond to the
allegations and present your arguments and defenses in a timely manner.

Their right to defence is essential to ensuring a fair and just trial.

Rights and Obligations of the Parties

Right to Due Process:

Both parties have the fundamental right to due process, ensuring that their rights are
respected during all stages of litigation.

This includes the right to be heard, to present evidence, and to have a fair trial.

Obligation to Collaborate with the Process:

The parties have the obligation to cooperate with the process, providing the required
information and appearing at the scheduled hearings.

35
Failure to comply with these obligations may result in penalties and affect the credibility of
the offending party.

Confidentiality and Data Protection:

The parties have the right to confidentiality in certain aspects of the process. Sensitive
information may be protected to safeguard the privacy of the parties involved.

Data protection is a key consideration, especially in cases involving personal and sensitive
information.

Intervention of Third Parties and Consortium

Third-Party Intervention:
In certain cases, third parties may intervene in a proceeding, either by legal provision or by
decision of the judge.

The intervention of third parties may be voluntary or forced, and their participation may affect
the outcome of the process.

Consortium:
Consortium litigation occurs when several parties act together as plaintiffs or defendants in
the same proceeding.

Depending on the nature of the dispute, it may be necessary to unite all interested parties in
a single legal action.

Legal Representation of the Parties

Attorneys and Powers of Attorney:

The legal representation of the parties in the Peruvian legal context is essential to ensure
that the interests and rights of those involved are duly protected and presented before the
judicial system. Here is more information about the legal representation of the parties in Peru:
Lawyers and Their Role in Representation:

The parties to a legal proceeding have the right to be represented by lawyers duly registered
with the Peruvian Bar Association. Legal representation is crucial, as lawyers are trained to
understand and apply complex legal and procedural regulations.

36
Power of Attorney to Act on Behalf of the Parties:
Legal representation is formalized by means of a document called a "power of attorney". This
power of attorney gives the attorney authorization to act on behalf of the party he or she
represents. It can be a special power of attorney for a specific case or a general power of
attorney that covers various legal actions.

Rights and Obligations of Lawyers:

Lawyers have a responsibility to defend the interests of their clients ethically and in
accordance with the law. This involves advising parties on their rights, filing briefs and
pleadings, participating in hearings, and representing their clients effectively.

Legal Advice:
In addition to representing the parties during the process, lawyers also provide legal advice
prior to the filing of the lawsuit or during the preliminary investigation. This advice helps
parties understand the legal implications of their actions and make informed decisions.

Attorneys' Faculties During the Process:

Lawyers have the power to perform various procedural actions, such as filing briefs,
requesting evidence, questioning witnesses, and participating in hearings. Their participation
is critical to ensuring due process and adequate representation of their clients' interests.

Representation of Natural and Legal Persons:

Lawyers represent both natural persons and legal entities in legal proceedings. In the case
of companies or organizations, legal representation is vital to act on behalf of the entity and
protect its rights.

Legal Fees and Costs:

Lawyers usually receive fees for their legal services. These fees are agreed upon between
the attorney and their client, and can vary depending on the complexity of the case. In some
cases, the judge may order the losing party to bear the winning party's legal costs.

Legal representation in Peru ensures that parties have access to justice effectively and that
their rights are competently defended in court. The attorney-client relationship is critical to
the success of the case and the preservation of the integrity of the legal system.

The parties to a judicial process in Peru play a vital role in the pursuit of justice. Their active
participation, respect for their rights and obligations, as well as the possibility of third-party

37
intervention, contribute to a sound and equitable legal system. Legal representation, data
protection, and compliance with due process are essential aspects of ensuring that the
parties are treated fairly and that the process leads to a fair and equitable resolution.

THE PUBLIC MINISTRY IN A PROCESS

The CPP confers two concurrent but successive roles to the Public Ministry as the holder of
the exercise of criminal action:

(i) conductor of the preparatory investigation - the decision-making power regarding the
accusation or dismissal conferred on the prosecutor constitutes a logical - legal prerogative
that obliges the Public Ministry to investigate the fact [Góssel] -.

(ii) accuser in the oral trial [Gimeno], cc with the obligation to permanently intervene
throughout the development of the process” (article 61.3 CPP).
Another role, linked to the appeal, is that of being (iii) a party to the appeal at the seat of
challenge.

The Public Ministry pronounces itself through provisions, rulings, requirements and
conclusions (articles 122 and 64 CPP). The provisions and requirements must be motivated.
The conclusions translate the prosecutor's justification in his oral interventions made at the
hearings. The rulings, which focus on those areas of exclusive control of the prosecutor, like
the judicial decrees, materially order the progress of the case.

Preparatory Investigation Conductor

The role of the Public Prosecutor's Office, as the conductor of the preparatory investigation,
on the one hand allows to accentuate the accusatory form of the criminal procedure and, on
the other, to simplify and streamline the investigation task [Explanation of Motives of the
Model Criminal Procedure Code for Ibero-America].

The CPP considers the Public Ministry a key institution to deformalize the investigation stage.
The system it establishes requires that the Public Ministry be able to streamline the criminal
investigation process, making it more flexible, developing teamwork, and coordinating police
work. Furthermore, the Public Ministry must develop a policy to control the procedural burden
so that the procedural system works with efficiency and quality, and must play a decisive role
in the promotion and protection of the rights of victims [Cubas].

38
In such virtue, not only:

(i) receives complaints for the commission of public crimes (article 60.1 CPP).

(ii) provides for the execution of urgent and non-postponable acts to determine the origin of
the promotion of criminal action - it is subject to the principle of legality -, for which purpose
it can execute them directly or order the Police to do so, issuing the corresponding
instructions or specific directives. (Articles 65.2 and 3, and 69 CPP), in such a way that it will
be in charge directly, or via delegation to the police authority, of personally interrogating the
accused and witnesses, as well as reporting on the legal situation of the former [ Snows].

(iii) legally controls its development and defines its strategy. In his capacity as head of the
preparatory investigation stage.

(iv) decides what to do and the method to achieve the clarification objective.

(v) guarantees the right of defense of the accused and his other rights, as well as the
regularity of the proceedings with respect to fundamental rights (article 65.4 CPP).

(vi) requests from the judge, through the respective request, all the limiting measures of rights
necessary for the due clarification of the facts and assurance of the sources of evidence
(article 61.2 last sentence CPP), while it can only carry out acts of investigation and non-
limiting assurance of fundamental rights, as well as coercive measures whose purpose is to
ensure the effectiveness of the process and the final sentence, through which the
jurisdictional body - via summary cognition - must evaluate to decide its foundation and, in
this way, ensure the effectiveness of the sentence to be issued.

The role of leader of the investigation makes him, without a doubt, responsible for it. This
institutional position entails three consequences:

1. Make decisions about the future of the investigation: need to carry out certain investigative
procedures, hold hearings before the judge of the preparatory investigation, promote the
continuation of the investigation actions, declare their closure.

2. Obtain judicial authorizations—measures limiting rights in general.

39
3. Respond to the damages generated by the research activity and respond to the public
opinion for the success or failure of the investigations [Duce/Riego].

The actions carried out by the prosecutor in the preparatory investigation are those that allow
the oral trial to be held properly. Given that it would be very complicated, in many cases -
although not in all - to hold the oral trial immediately after the events have occurred, it is often
necessary to open a very precise or limited preliminary investigation to collect the material
vestiges of the crime and secure the person and property of the suspect, as well as carry out
the investigation procedures in order to identify those responsible and prove the punishable
act [Nieva].

In its actions as such, impartial authority and head of the preparatory investigation, the Public
Ministry is subject to two principles of action; that is, principles that guide its external activity:

A. Legality. The prosecutor will be governed only by the Constitution, the Law and other
regulations that make up the legal system. Such submission requires the prosecutor to
dispense with any influence or interest, whether personal or external, outside the principles
established by the legal system. In this perspective, the prosecutor will act with independence
of judgment, without prejudice to the general directives or instructions - never determined or
specific, based on a specific case - issued by the Attorney General's Office basically in
matters of criminal policy of the institution. or unification of criteria in criminal or procedural
matters [Dore].

B. Objectivity. The prosecutor must investigate with full objectivity and independence the
facts constituting the crime and carry out investigative activity on the facts that determine and
prove the responsibility or innocence of the accused; the circumstances that make it
necessary to prove the accusation and those that authorize exempting or mitigating liability
(articles IV.2 TP and 61.2 CPP). The latter is possible because the Public Ministry, materially,
represents the public interest in achieving justice, which can both oppose and coincide with
that of the defense [GÓMEZ/HERCE]. Since the prosecutor must monitor compliance with
the laws, he cannot logically have a subjective interest in the specific case other than the
correct application of the law [SERRA DOMÍNGUEZ].

Public Prosecutor

The Public Ministry as the accusing party is in charge of requesting the action of ius puniendi,
whenever legally applicable. Through the accusation, when appropriate, even when no

40
fundamental right applies, it fulfills its legal-public obligation to exercise the personal action
by introducing the punitive claim; and, with this, maintains the validity of the principle of
contradiction. The accusation - which objectively and subjectively delimits the scope of the
process - is conditioned on the existence of a sufficient basis or sufficient or suitable elements
of conviction against the accused (article 344.1 and 2.d CPP). In this condition, the accusing
party must only maintain the charges throughout the course of the process - if, of course, the
pertinent legal requirements and conditions are met - but is authorized to file the resources
and means of challenge legally provided for (article 61.3 CPP).

Although the Constitution admits a differentiation between the prosecuting prosecutor and
the ruling prosecutor (article 159.3 and 5, on the one hand; and sections 1 and 6 of the same
articles 159 of the Constitution, on the other) — it also provides for the investigating
prosecutor (article 159.4) —, this function of ruling prosecutor has been banished from the
criminal process. A prior opinion is no longer required for the decision of the cases, as
required by the LOMP in its articles 83 and 91. The prosecutor, according to articles 64 and
122 CPP, in the field of criminal proceedings, dictates provisions and rulings (in the
investigation of the crime), and formulates requirements with their respective conclusions
(request for procedural acts to the judicial authority), always motivated and self-sufficient,
without reference to other acts or decisions, of the Prosecutor's Office itself or the
jurisdictional body - even more so when It deals with what we can call structural requirements:
dismissal and accusatory requirements, in which, with greater demands, they must be self -
sufficient and in which judicial control must influence the correct description of the accused
act, the minimum evidentiary support and in the logicality of the argument in order to its
conclusion [D'ALBORA]—. The accusation is a requirement subject to a specific regulation
(article 349 CPP), judicially controllable (articles 350-351 CPP), and essential for the
prosecution of an accused (article 353 CPP) who, previously, was formally accused by
means of a Provision Research (articles 336 and 349.2 CPP).

In the event that the prosecutor does not accuse and if this position is endorsed by the senior
prosecutor, the general rule, by virtue of the accusatory principle, is that there is no other
alternative to the jurisdictional body than to accept that position [Supreme Executive RN n. 0
2330-2012, of 01-30-13], unless the accusatory principle conflicts with other constitutional
rights, among them, the right to evidence and due motivation, by virtue of which the principle
of prohibition of arbitrariness can be annul that decision (STC n. 0 4620-2009.PHC/TC, of
10-11-11).

41
Party to the Appeal

The Public Prosecutor's Office is the only authority that can determine the prosecution of
delirium, a prosecution that is even projected at the venue of challenge - presentation of
accusatory appeals. Therefore, it is not possible, as a public body, to exceed what its
authorities provide in that specific area. This is in response to two of the principles that guide
the fiscal function: hierarchy and unity of the function. Thus, understood, the Public Ministry
is a hierarchical body, in which the position of the Superior take’s precedence over that of
the inferior (RN no. 1347-2013-Lima of 01-04-14 and Complaint no. 270-2013- Lima of 01-
17-14).

In the case of appeals - which obey the dispositive principle -, filed by a specific prosecutor -
and only with respect to him - their viability will depend on whether the higher-ranking
prosecutor shares the criteria of the lower one. If his or her challenging claim is not accepted,
the inferior's appeal automatically declines, without affecting the other procedural parties. In
this case, the judge must decide—whether his opinion is shared or not—for the position of
the highest-ranking prosecutor (RN No. 1614-2013-Pasco of 05-03-14).

Capacity and Leligitation of the Public Ministry

The prosecutor's office has a monopoly on criminal action in the case of public crimes. Only
in private crimes, very rare - crimes against honor, against privacy and minor negligent
injuries -, and in misdemeanors, the intervention of the Public Prosecutor's Office is excluded
and it is granted to the person offended by the delirium, constituted for this purpose in private
complainant.

For the valid exercise of criminal action, whoever does so must have the capacity to be a
party and procedural capacity. Such demands are met by prosecutors as they form part of a
state body established as a prosecutorial career, whose access, status and functions are
legally defined (both in the LOMP and in the CPP).

The active legitimation that the prosecutor has to intervene in the criminal process is
original—part of the Constitution and is developed in the Law. He is considered a defender
of society, although with respect to the civil object it is only a cle1ivated legitimation, since
he acts as a procedural substitute for the victim: he urges civil reparation only if the victim
does not constitute a civil actor, he does not renounce it. or does not decide to go to civil
jurisdiction (articles 11.1, 12.1 and 13.1 CPP) [GIMENO

42
CHAPTER 4: PROCESSES ACCORDING TO THEIR SUBJECT

CIVIL PROCESSES

Stages of the Civil Process

1. Postulatory Stage. - Its purpose is to establish the scope of the controversy or legal
uncertainty. Every process has its beginning, it is there where the litigable parties present,
raise, explain and substantiate their claims and defenses.

2. Evidence Stage. - The claims and defenses of the litigating parties are usually based on
facts stated by the parties, which need to be accredited, proven with means of evidence,
consequently they constitute the set of acts intended to prove and convince the Judge that
the events have occurred as each person has stated.

3. Decision Stage. - Once the evidentiary activity is concluded, the Judge is able to resolve
the conflict of interest or legal uncertainty, applying the right or law that corresponds to the
specific case.

4. Challenge Stage. - The jurisdictional body represented by the Judge is a human being
like any of us, therefore its decisions are human acts and it is prone to making errors or errors
that can be reviewed; To correct this error, the existence of the present challenge stage is
based, so that the resolution that is the subject of questioning is reviewed by the higher
jurisdictional body.

5. Execution Stage. - Also called Execution or Executive, through this stage the aim is to
ensure that the Judge's final decision (sentence) is fulfilled, so that the purposes of the
process become a reality.

The process does not necessarily have to go through these five stages but when they are
necessary, which is why there are special forms of conclusion of the process.

CRIMINAL PROCESSES

What is a criminal process?

The criminal process is all the actions that are processed before a judicial authority to
determine whether certain actions or omissions constitute a crime according to the Penal

43
Code, proceeding to the acquittal or conviction of the accused and defining the corresponding
penalties or security measures.

Criminal procedure attempts to reconcile the interests of society, since it pursues and
punishes infractions committed by its members, with the right of the accused to defend
himself and undergo a process that provides all the guarantees to avoid unjust convictions.

What are the phases of the criminal process?

In Spain, the criminal process is regulated by the Criminal Procedure Law of 1882, in which
different phases are distinguished:

Instruction or summary phase

This stage of investigation focuses on clarifying the facts, identifying the alleged perpetrators
and prosecuting them. It is launched through a complaint or complaint filed by an individual
or through a police report or the procedures carried out by the Public Prosecutor's Office.
The work is in the hands of the competent Investigative Court, so the Judge must act as soon
as he becomes aware of the possible commission of a criminal act, according to its severity
and the corresponding penalty in the Penal Code.

During the investigation of the case, the Court determines whether the facts are really a crime
and who is responsible for prosecuting them. If during the investigation the alleged
perpetrator of the crime cannot be identified or located or it is not determined that the facts
constitute a crime, the case is dismissed or archived, either provisionally or definitively.
Otherwise, the criminal procedure continues.

Intermediate phase

At this stage of the criminal process, it is determined whether it is possible to start the oral
trial. It is decided whether a new investigation should be carried out or whether the procedure
should be changed to fit the subject matter and severity of the sentence. It is also analyzed
whether there is a lack of procedural budget that prevents prosecution in order to correct or
archive the proceedings.

44
Oral trial phase

Considered the central phase of the criminal process. It is carried out before a prosecution
body that must be different from the judge who conducted the investigation to guarantee the
impartiality of the procedure and ensure that it is not contaminated by the information
collected during the investigation. In the oral trial, the evidentiary activity is deployed, which
serves as the basis for the sentence.

Execution phase

The sentence is the final resolution that puts an end to the criminal process, issued by a
Court or Tribunal. However, the activity of the judicial bodies is not limited to issuing the
sentence, it also extends to the execution of the resolution so that their pronouncements are
fully effective.

In criminal proceedings that end with a conviction, the executive phase guarantees
compliance with the sentence and satisfies civil pronouncements. The procedure followed to
execute sentences will depend on the nature of the sentence itself.

CONSTITUTIONAL PROCESSES

Constitutional processes are a fundamental tool for the protection of fundamental rights and
the defense of the rule of law. These processes are divided into two categories: contentious
constitutional processes and non-contentious constitutional processes.

Contentious constitutional proceedings are those initiated to resolve a conflict between two
parties, while non-contentious constitutional proceedings are those initiated to obtain a
declaration or recognition of rights.

They are governed by procedural principles such as orality, immediacy, concentration,

publicity, contradiction and procedural economy. The purpose of these principles is to
guarantee the effectiveness and efficiency of the process, as well as the protection of the
rights of the parties.

45
In a constitutional proceeding, the parties may be natural or legal persons, and there are civil,
criminal and constitutional constitutional proceedings, among others. The purpose of the
constitutional proceeding is to obtain the res judicata or the solution of the conflict, and its
importance lies in the protection of the rights of the parties and in the guarantee of the rule
of law.

The general history of the constitutional process dates back to ancient Greece and Rome,
and has evolved over time. Today, constitutional processes are a fundamental tool for the
protection of fundamental rights and the defense of the rule of law in Latin America.

In a constitutional process, the Public Prosecutor's Office has a fundamental role in the
defense of fundamental rights and the protection of the rule of law. The Public Prosecutor's
Office is in charge of directing the preparatory investigation and exercising the public criminal
action against the perpetrators or participants of a crime.

We can summarize that constitutional proceedings are a fundamental tool for the protection
of fundamental rights and the defense of the rule of law. These processes are governed by
procedural principles and their objective is to obtain res judicata or the solution of the conflict.

In Peru:

In Peru, constitutional processes are a fundamental tool for the protection of fundamental
rights and the defense of the rule of law.

They are governed by the Constitutional Procedural Code, which regulates both organic
constitutional proceedings and constitutional proceedings for the protection of rights, which
together aim to guarantee the primacy of the Constitution and the validity of fundamental
rights.

Constitutional proceedings are divided into two categories:

Contentious constitutional processes and non-contentious constitutional processes.

Contentious constitutional proceedings are those initiated to resolve a conflict between two
parties, while non-contentious constitutional proceedings are those initiated to obtain a
declaration or recognition of rights.

In a constitutional proceeding, the subjects may be natural or legal persons, and there are
civil, criminal and constitutional constitutional proceedings, among others. The purpose of

46
the constitutional process is to obtain res judicata or the solution of the conflict, and its
importance lies in the protection of the rights of the parties and in the guarantee of the rule
of law.

The general history of the constitutional process in Peru dates back to ancient Greece and
Rome, and has evolved over time. Currently, constitutional proceedings are a fundamental
tool for the protection of fundamental rights and the defense of the rule of law in Latin
America.

It should be emphasized that the purpose of these processes is to guarantee the primacy of
the Constitution and the enforcement of fundamental rights.

Challenges:

Constitutional processes in Latin America face various challenges that must be addressed
to ensure their effectiveness and efficiency.

One of the main challenges is the need for an independent and autonomous constitutional
judiciary that has the necessary resources to fulfill its mission and that is endowed with
autonomous principles and rules that form a constitutional procedural law.

Another important challenge is the need to guarantee the primacy of the Constitution and the
validity of fundamental rights, in a context in which political and economic powers can exert
undue pressure on the courts. To this end, it is necessary to have an informed and committed
citizenry that demands respect for the Constitution and fundamental rights.

It is also important to address the challenges related to the complexity and overload of
constitutional processes, which can generate delays and delays in the resolution of conflicts.
To this end, it is necessary to have clear and efficient procedural rules that allow for the rapid
and effective resolution of conflicts.

Constitutional processes face a number of challenges in Latin America that must be

addressed to ensure their effectiveness and efficiency.

These challenges include the need for an independent and autonomous constitutional
judiciary, the guarantee of the primacy of the Constitution and the enforcement of
fundamental rights, and the need for clear and efficient procedural rules.

47
CHAPTER 5: FINAL CONCEPTS

CONCLUSIONS

In conclusion, the process is a set of acts that are carried out in a legal framework to resolve
a conflict or legal uncertainty.

There are contentious and non-contentious processes, which are differentiated by the
existence or absence of litis.

The processes are divided into stages, which are governed by procedural principles such as
orality, immediacy, concentration, publicity, contradiction and procedural economy.

In a process, the judge and the parties have specific responsibilities and the purpose of the
process is to obtain the res judicata or the solution of the conflict.

Procedural activity is governed by the procedural rules established in the Code of Civil
Procedure, the Code of Criminal Procedure and other special laws.

The importance of the process lies in the protection of the rights of the parties and the
guarantee of the rule of law.

The general history of the process dates back to ancient Greece and Rome, and has evolved
over time.
In a process, the subjects may be natural or legal persons, and there are civil, criminal and
constitutional processes, among others.

The Public Prosecutor's Office plays a fundamental role in criminal proceedings, since it is
responsible for directing the preparatory investigation and exercising public criminal action
against the perpetrators or participants in a crime, protecting victims and witnesses, and
representing the aggrieved society in trials.

In conclusion, the process is a fundamental instrument for the protection of rights and the
resolution of conflicts in a democratic society based on the rule of law.

The process is a set of acts that are carried out in a legal framework to resolve a conflict or
legal uncertainty.

48
There are contentious and non-contentious processes, which are differentiated by the
existence or absence of litis.

The processes are divided into stages, which are governed by procedural principles such as
orality, immediacy, concentration, publicity, contradiction and procedural economy.

In a process, the judge and the parties have specific responsibilities and the purpose of the
process is to obtain the res judicata or the solution of the conflict.

Procedural activity is governed by the procedural rules established in the Code of Civil
Procedure, the Code of Criminal Procedure and other special laws.

The importance of the process lies in the protection of the rights of the parties and the
guarantee of the rule of law.

The general history of the process dates back to ancient Greece and Rome, and has evolved
over time.

In a process, the subjects may be natural or legal persons, and there are civil, criminal and
constitutional processes, among others.

The Public Prosecutor's Office plays a fundamental role in criminal proceedings, since it is
responsible for directing the preparatory investigation and exercising public criminal action
against the perpetrators or participants in a crime, protecting victims and witnesses, and
representing the aggrieved society in trials.

In conclusion, the process is a fundamental instrument for the protection of rights and the
resolution of conflicts in a democratic society based on the rule of law.

49
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