Fact-finding in the civil and penal proceedings and its incidence on the different procedural institutions

Abstract

We examine how in a legal proceeding, both civil and criminal, facts over which the judge will render judgement are collected. We have identified a group of facts that need to be asserted so as to comply with the burden of proof in order to have them accepted in the proceeding, and another group that can be accepted by connection with the asserted facts without requiring express assertion. Saying that the fact has been accepted in the proceeding has two meanings: First, it determines whether the probatory activity complies with the requirements of relevance and pertinence; and second, it establishes whether the judgement rendered complies with the rule of congruence in the framework of due proceeding and particularly the right to defense. When the judgement is not congruent, we have a deviation from the positive proceeding model, an anomaly which will result in a consequence, which in the case law of the Supreme Court Civil and Penal Chambers has been differently treated.