Understanding Legal Action: Theories and Classifications

Posted on Jan 4, 2025 in Law & Jurisprudence

Legal Action: A Comprehensive Analysis

Legal Action

Doctrinal concept of the action: concerns procedural law, the action and activity of the parties, specifically the claim made to the court.

The civil process begins with this idea: every process is initiated upon application.

Action: the power to exercise violated rights in a judicial proceeding.

Purpose: action is the power to enforce a claim.

Arazi, states that whoever holds the action can obtain a jurisdictional act and the issuance of a statement that may be favorable or not.

Different Theories on Legal Action

Classical school, arguing that the action is simply the law itself judicially inferred. Savigny attempted to modify this reading, giving the law a guarantee function. If the law was violated, the action was set in motion. It is the particular aspect that assumes all right as a result of injury, “the law in a state of defense, armed for war which will live in the process not as an independent right but as a moment in life but the law.”

Autonomy of action. Modern theories: The Romans ran a claim against the adversary, which turned into action to enforce it in court. This claim could be recognized by the state through the appropriate sentence, or by the particular individual who decided to resolve the conflict. So the action was not simply the legal claim deduction in the process.

Muther claimed that the action is a subjective public right which is obtained through legal protection and is directed against the state to obtain a favorable sentence, and against the defendant to comply with an unsatisfied provision. The basis of the action is the existence of a private law and its violation, but although it is conditioned by the right, it is independent of this and its regulation corresponds to the right audience.

The action as an abstract right: Degenkollo aims to demonstrate that the action is not a right, but the affirmation of its existence. The expectation of a favorable ruling is absolutely contingent; whoever holds the action may be successful or may lose. It is an abstract right that belongs to anyone, right or wrong, even in a baseless lawsuit.

The action would be instituted as a faculty that arises against the state and against the other party, sufficient for the belief of being assisted. The process is founded on the basis of private initiative and it is the interest that will determine the legal nature.

The action as a specific right, it is not true to say that anyone, with or without reason, was entitled to the process. It is the person who believes to be in possession of the subjective right that was affected.

Mendez Ramos says, “the litigant does not pay attention to their right of recourse to the courts. What is of particular interest is to obtain a court ruling in their favor and in the event of initiating the process.”

Wach argues that the right to claim a legal right is due to the violation of a right to obtain a favorable ruling.

Action as a discretionary right: this optional nature against the rightful opponent without that it can do something about it, that is, subject to the action as it disappears with exercise. This determines whether it is public or private, as is the rule in which action occurs, which is why the action is a good and an autonomous right. This theory discards the public nature of the action and emphasizes the condition of obtaining a favorable ruling.

Action as public or private: from the posing of Wach to the development of Chiovenda, the private nature of the action was accentuated, because it took into account that the individual will set in motion the mechanism of judicial review. The later doctrine, the public road starts.

When a demand is initiated, an immediate effect is the ruling that must come from the jurisdiction. It would not be permissible to speak of its session to the law but of submission to jurisdiction.

The action retains its character and distinguished public subjective right because the interest protected by the action is not a disputed interest but the interest in the just end of the dispute.

The action as a civil right: the right to jurisdiction, Couture said he was looking for a theory that attempts to explain the legal nature of the action (which is the action) must be assumed necessary that any subject is entitled to the court having jurisdiction under the claim made to the forms given by the procedural law. This right is the undisputed minimum portion of this whole phenomenon: the right to the benefit of the jurisdiction.

The action is placed within the civil rights, as a form of right of petition. Consequently, the right of action is a civil right that comes to mind in the contemporary dogmatic constitutions.

Bidart points out 3 times:

• Before the process: as a state’s obligation to provide justice
• During the process: keeping the adequacy of procedural means and ensuring defense at trial at all levels to reach the decision
• Integrity requirements: must contain the act adjudicatory jurisdiction to consider it valid.

The budget required is jurisdiction, and it has to exist for there to be action and process, as it should have jurisdiction and that action has been processed.

In our opinion, the action is not merely an act for procedural content to make a complaint to the judicial authority. This, called the request, initiates a process and closes the circuit characteristic of the judicial process.

The action would be a subjective right inspired by the state’s duty to provide legal protection. It has a procedural nature, because beyond the warranty that is, it aims to judicial protection.

The action is procedural legality in the trial request and ultimately demanding the right. If the right does not exist without the trial, it does not exist without action.

Action and Intention

Classification of Action

According to their claims:

• Civil action: different types of claims: divorce, severance pay, compensation, eviction
• Criminal proceedings: one claim: a penalty

According to its object:

• Constitutive action: they constitute, create, modify or extinguish the legal consequences
• Condemnation action: it imposes an obligation to give, do or not do to another person
• Declaratory action: those that will clear a situation of uncertainty. Example: when I ask the unconstitutionality of a rule
• Executive action: pursue the fulfillment of an obligation previously documented. Example: payment, pledge, mortgage.
• Precautionary action: seek to ensure a fact or law in order to be able to meet an eventual favorable decision. Example: arrest / inhibition.