The injunction, trial or possessory action is a summary procedure, in which the possessor of an asset, right or obligation requests that the judicial authority be ratified his power before others (before all), in order to continue exercising his right without the complications, injuries or grievances to which you have been subjected. The injunction adjudicates possession on a provisional basis depending on the question being debated and after investigating the case.
The injunction is a short and expeditious trial that is requested before the Judicial Court to resolve the tirade about possession. The aggrieved demands the action to demand respect for his right as possessor and the restitution of what has been deprived him.
In an injunction, the speed of the presentation and resolution of the controversy is essential , you only have one year to raise the judicial question; Hence, the parties to the conflict must review the facts early and present the basis of their assets or assets, to make an expeditious decision based on the law .
The injunction precedes the trial and has the value of a formal res judicata, the sentence passed cannot be modified within the same judicial process, but it can be modified in a later one. The laws of some countries allow a new injunction, others only contemplate the realization of an ordinary possession trial.
- Types of injunction
- Probationary period
- Interdict in Roman law
Interdict is derived from the Latin word interdictum , which means interdict. Prohibits doing or saying anything by virtue of protecting the right of possession.
The object of the injunction is to protect the possession itself , from any damage, disturbance or undue confiscation. The parties involved in the process will respond to what is dictated in the judicial sentence, without the need for the use of force or alteration of social peace.
The injunction starts from the legitimacy of the possession, if the person requesting it is not the true possessor or does not have a relationship of power animus domini with the property or assets, there is no judicial process. In addition, for there to be an injunction, there must be deprivation of the right, the damages or alterations to the possession must have been carried out against the will of the possessor.
Types of injunction
The injunctions are classified according to their purpose into three main types: Possessory, prohibitory, and restitutionary. Although other classifications can be found according to the legislation of each country.
The interdicts possessory relate only to buildings: buildings, houses, haciendas, lands … and are divided into three different procedures:
- Injunction to retain possession and injunction to regain possession. It is a short and simple procedure, it is demanded by the person who legitimately owns the property, when he is disturbed in the exercise of his right or deprived of it. The judges recognize possession before the disturbing agent and are based on the laws to demand due respect, the restitution of enjoyment to its true owner.
The action avoids social unrest and in extreme situations, that the owner does justice by his own hands. In the injunction it is the judge who administers justice.
- New construction injunction. It proceeds when the construction affects, impairs or makes the right of possession impossible. The judge dictates the precautionary measure of paralysis of the work, in the stage that is. The ruling issued does not have the effect of res judicata, the prosecution or not of the work must be discussed in subsequent trials, where the rights to property or to definitive possession may be filed. The purpose of the injunction is the defense of possession, not the protection of property or other real rights .
- Ruinous or dangerous work injunction. It is appealed to this to: Request the demolition of a work in an advanced state of deterioration, which represents a latent danger for the adjoining buildings and people who walk next to it. Or, to demand categorical precautionary measures be taken. The complaint is made by the owners of the buildings near the ruinous work and / or those who habitually walk the area. It is not admitted in all laws.
For its part, the restitution injunction demonstrates legitimate possession, it is executed to return or replace to the possessor the material asset of which it has been deprived. Restore the altered order.
And, finally, the prohibitory injunction responds to threatening acts against the property or right over which one has possession. It prohibits doing that which damages the thing and therefore affects its owner, whether or not it is its rightful owner.
The procedure of the injunction is the judgment of minor amount, simplicity and speed. Once the claim is admitted, the judge orders an investigation of the alleged disturbances or damage to possession, for this he designates experts or any other means of evidence to be developed in the next eight days (period established in the legislation).
Because the possession of a thing or right is at stake (case: possession injunctions), its fate will be decided in a verbal, summary trial. The judge will determine whether or not the injunction proceeds. If the claim is founded, the law orders the cessation of the disturbances or harmful acts, in addition to the payment of the fruits and compensation, in the restitutionary injunctions and prohibitory injunctions, if applicable.
For the injunction to proceed, it is required that:
- The demand is made within the legally established period of time, that the year has not elapsed since the alteration of order, disturbance or confiscation of possession.
- The plaintiff is the legitimate owner of the thing, it is not essential that he is its owner.
- The defendant has carried out of his own free will – without the consent of the owner – the acts that alter, impair or damage the enjoyment of the property. You have done it personally or ordered the action of third parties.
- The defendant manifests the intention to usurp possession.
- In the case of a new construction injunction, the construction must not be completed.
The injunction will be admitted if and only if the disturbances and damages against the possession were committed in less than a year.
It is a fast and timely procedure, which is why it establishes only eight (8) days to prove the veracity of the facts filed in the claim. The extension or not of the probationary period will be the discretion of the judge and will be taken by virtue of the characteristics of the case.
The evidence presented within the term must deal with the possession itself, acts and threats of fact imputed to the defendant.
Interdict in Roman law
In the legal system of Ancient Rome, the injunction was established by the Praetor as a jurisdictional measure, it was intended to maintain the social status, respect and powers granted to a specific person or institution.
The action was carried out by procedural means and had a prohibitive, restorative or exhibition nature.
At first only prohibitory injunctions were considered as such, the others were called decrees. Then the procedures of the injunctions were merged into The Edict of Juliano, in which those involved were treated in an impersonal and generic way, but in which they had the possibility of requesting an “actio ex interdictium”, a more personal act, to claim what is not fulfilled by the defendant and imposed by the Praetor in the first process.
In Roman law , the Praetor protects the possession of some factual situations: Injury, spoil or actions that violate real guarantees. It does so through the injunctions of:
- Acquire possession: Includes the hereditary possession injunction, which proceeds when the heirs are actually stripped of the testamentary assets. Salviano also interdict, which protects the creditor mortgage their debtors and any holder of the thing. And other special procedures.
- Retain possession . It protects the one who owned the property for most of the year “without violence or in hiding, or in insecurity from each other.”
- Regain possession . It follows the formula of restoring to the plaintiff the possession of which he has been deprived and everything that he had in it at the time.