jurisdiction acceptance of the word

jurisdiction acceptance of the word
9 min read
1 year ago

jurisdiction acceptance of the word

The word jurisdiction appears in the legal world with different meanings.

Thus, in Latin American countries, the word has been conceived from four points of view:

- As a territorial scope

- As a synonym for competition

- As a set of powers or authority of certain organs of the Public Power.

- With a precise and technical sense of public function, of doing justice.

Jurisdiction as territorial scope. It is conceived as the territorial delimitation where jurisdictional activity is carried out.

Jurisdiction as competence. The Venezuelan Code of Civil Procedure, like other laws of the Republic, does not make a distinction between jurisdiction and competence, but even confuses the terms, expressing in some cases, the existence or delimitation of jurisdiction, when in fact what is meant refers to the competition. Until the 19th century, the concepts of jurisdiction and competence appeared as synonyms and in the 20th century this situation was overcome, leaving some remnants of it in legislation and forensic language.

In this way, competence is the measure of jurisdiction, with all judges having jurisdiction, but not the competence to hear a certain matter.

Jurisdiction as power. It is expressed at times that jurisdiction is the prerogative, authority, or power of certain public bodies, especially those of the Judiciary, alluding to investiture, and hierarchy rather than function.

The Jurisdiction is a power duty since the Judge has the administrative duty to do so.

different concepts

The jurisdiction in a broad sense, which looks at the function of the formal source of law and then is considered by law, custom, and jurisprudence being manifestations of it.

.-Jurisdiction is the power that the state has to administer justice, which emanates from its sovereignty as an omnipotent being, and which is exercised through the jurisdictional bodies created for this purpose, in order to solve or settle inter-subjective conflicts arising between those administered or apply the corresponding penalties in case of transgression of the law.

In a general and improper sense, the term "Jurisdiction" is used to designate the sphere of action, competence, or attributions of a person or certain entity. In a restricted way, it is understood as the way of administering justice by the State, constituting a public function, whose purpose is the application of the law to cases questioned by individuals, when they go before the relevant official, to settle or clarify their differences. What Is Jurisdiction?

PIETRO CASTRO: Points out that the Jurisdiction is the activity of the State for the realization of the legal order, through the application of objective law, translated into protection and security of the rights of individuals.

GUASP, quoted by BELLO LOZANO: He considers that the Jurisdiction can be conceived from a subjective point of view, as the set of State bodies, which objectively act in the process, as well as the procedural matters in which the State bodies intervene from the point of view of the activity, being the acts carried out by their organisms when intervening in the process.

FOR DEVIS ECHANDIA: Jurisdiction is understood as the public function of administering justice, emanating from the sovereignty of the State and exercised by a special body. Its purpose is the realization or declaration of the right and the protection of individual freedom and the legal order, through the application of the Law in cases to obtain harmony and social peace; the purpose of the jurisdiction is confused with the process in general, but this contemplates certain cases and those, all in general.

CHIOVENDA points out that the Jurisdiction is the first procedural budget, or what is the same, the first condition so that a judicial claim can be examined in substance, understanding as such, the function of the State that has as its purpose the act of will of the law by substituting the activity of public bodies for the activity of individuals, either by affirming the existence of the will of the law or by making it practically effective. Jurisdiction, then, for the author in question, is exclusive to the state, a function of its sovereignty.

VESCOVI points out that etymologically jurisdiction (de iuris dicto) means; Saying the law, its first and essential function being what PIERO CALAMANDREI has called the statement of certainty. It is about affirming what is right in the face of the conflict, that is, who is right. It is what is done through the so-called knowledge process, which is the means by which the jurisdiction pronounces the law. Previously, the concept of jurisdiction was confused with competence, but jurisprudence has evolved according to ruling No. 100, dated 02-02-00, Political-Administrative Chamber under the presentation of Dr. Levis I. Zerpa.

"...In the present case, the Judge a quo makes a serious mistake by confusing the concepts of jurisdiction and competence, therefore, it is opportune to clarify the legal concepts in reference, to that until the 19th century, the concepts of jurisdiction and competence appeared as synonyms. Indistinctly, the lack of jurisdiction was referred to as a lack of jurisdiction in a material sense, in a territorial sense, or even to refer to the function. Pleonastically, it came to speak of jurisdictional incompetence. In the 20th century, it has been overcome this mistake and competence was considered a measure of jurisdiction, that is, the fraction of the assigned to a judge. Indeed, jurisdiction is the public function, carried out by the competent bodies of the State with the forms required by law, by virtue of which, by the act of trial, the right of the parties is determined, in order to settle conflicts. and controversies of legal relevance, through decisions with the authority of res judicata. Jurisdiction is everything; jurisdiction is the part: a fragment of jurisdiction. Competition is the power of jurisdiction for a part of the legal sector: that is specifically assigned to the knowledge of a certain court. In short, these are two different procedural figures. Due to the foregoing, the Judge a quo is warned so that in the future he refrains from making the error indicated here."

Jurisdiction in the Ibero-American doctrine:

This doctrine follows the guidelines on the concept of jurisdiction.

That is, it is considered a function (power) of the State, whose main purpose is to satisfy its interest in the realization of the right and the guarantee of the legal order and individual freedom in specific cases and through decisions, which oblige the parties to the respective process so that there is peace and social harmony. It is also indicated that the secondary purpose and coincident with the previous one - when it corresponds - is to satisfy the private interest.

Consequently, the jurisdictional function is exercised by imparting justice, which is the normal activity of judges. Although they can perform, exceptionally, administrative activity.

It should be noted that the various Codes, especially the most modern ones, include in the jurisdiction not only the function of "saying the law", according to the etymological sense but also that of executing the judgment, as well as issuing precautionary orders.

Subjects of the Jurisdiction:

The subject actor of the jurisdiction is the State, as the only sovereign entity, which has the power within the limits of its territory. The passive subject is given by the citizens or subjects who are in the territory where the State exercises its sovereignty.

Characters:

- The Jurisdiction is autonomous, since it is exercised in a sovereign way, and it is exclusive both in the sense that individuals cannot execute it, because each state applies it with a presidency and exclusion of the others and must also be independent before its organs. and to individuals, it is also technical, that is to say, that there is only one Jurisdiction, as a function, right and duty of this, but it is usual to speak of their empty souls, to indicate the way in which the law distributes its exercise among various bodies and specialized officials, for the best fulfillment of its purposes.

- The subjective element is not enough to specify the true nature of the Jurisdiction. And it is necessary to distinguish it from administrative and legislative functions in terms of its content, purposes, and characteristics. With another side of the subjective element, we have to place the formal, material, and functional elements so that the notion of the jurisdictional act is complete.

- Subjective element includes, in addition to the Judge or Magistrate, the parties and third parties involved in the process and constitute.

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