On 31 May, the student of the Master’s Degree in Law, Business and Justice, Raúl Montero, defended before the board his Master’s Degree Final Project titled ‘Necesidad de establecer un estándar de prueba en el nuevo proceso civil chileno’ (‘Need of Establishing a Standard of Proof in the New Chilean Civil Procedure’), which has been directed by Dr Ana Isabel Blanco.
31 may 2016
Setting trial standards in a procedural system constitutes a legislative decision that involves a political and value choice on the inclusion of sufficiency thresholds in the proof and on determining margins of errors in the judicial decision. Such criteria, rules or principles –or their absence– contribute to the definition of the procedural system as a whole, due to they deliver tools that allow for adopting and justifying such decision, thus, distributing the costs of the implicit error in that act.
The discussion on the existence and roles that correspond to the standards constitutes an issue of recent interest for the European and Latin American doctrine and legislation, unlike the common law system, which has traditionally recognised and set standards both in criminal and civil matters. In the Chilean case, is currently being developed a process through which it is aimed to implement a radical and deep procedural reform in the civil sphere.
Its first stage considers the substitution of the Civil Procedure Code, which has prevailed since 1903, by a new statute called Civil Procedural Regulations (CPC), which, among other modifications, provides a dominant assessment system of fair comment, with some exceptions of legal proof.
This draft law that to this date is in the first stage of the process omits setting a standard of proof for the court’s conclusions. What is more, it declares in the bill –which constitutes a precedent of future interpretation–, that it is unnecessary and to justify such choice affirms that the setting of rational rules of assessment of the proof and requirements of the sentences constitute sufficient guarantees.
In the Chilean case, is currently being developed a process through which it is aimed to implement a radical and deep procedural reform in the civil sphere.
From the absence of a specific legal norm within the draft law, but especially of the declared lack of need of setting a standard of civil proof in its bill, arose the research work that is presented from a functional point of view and is structured in a contextual section and three chapters:
Contextual Section It is destined to give a general panoramic and synthetic view of the main reforms introduced in the Chilean procedural system of the recent years.
First Chapter It exposes the essential considerations on the standards of proof, the functions or objectives they perform in a judicial process and the main categories recognised on a doctrinal level, especially on common law.
Chapter Two It seeks to expose the rules within the Chilean system, both in the current CPC and in the draft. This second chapter is mainly regulatory, addressed to serve as connection between the first one, which is more conceptual, and the third one, of analysis and comparison.
Chapter Three It deals with the relationship between the objectives of the rational assessment with the objectives assigned to the standards of proof. In this chapter the costs and risks of operating a civil procedural system without standards of proof are tackled and analyse, both regarding the creation of fake standards and due to the risk of expanding and making applicable a standard in a field for which it has not been conceived.
Regarding the employed methodology, Raúl Montero chose a study and analysis both dogmatic and compared to refer to institutions, analyse the main characteristics and objectives of each one of them and relate them to determine whether the functions of the standards were satisfied for those fulfil by the assessment of the proof.
Civil Procedural Regulations of Chile: https://www.iberred.org/sites/default/files/cdigo-procesal-civilchile.pdf
