Art 43 lec

Civil Procedure Law of Colombia

When in order to decide on the subject matter of the litigation it is necessary to decide on some question which, in turn, constitutes the main subject matter of another proceeding pending before the same or a different civil court, if it is not possible to join the proceedings, the court, at the request of both parties or of one of them, having heard the other, may by order decree the suspension of the course of the proceedings, in the state in which they are found, until the end of the proceeding whose object is the prejudicial question.”

“The law, on the other hand, does not refer at all to questions of an administrative nature, which take place when, prior to the decision on the merits of the case, a judicial determination is needed regarding an administrative extreme that conditions such decision, and therefore cannot be qualified as prejudicial, inasmuch as their resolution corresponds originally to the administrative Judges and Courts, without any extreme being elucidated that is the competence of another different jurisdictional order, which is why they are rather included in the category of incidental questions.”

Civil Procedure Law from which it originates

“When in order to resolve the subject matter of the litigation it is necessary to decide on an issue which, in turn, constitutes the main subject matter of another proceeding pending before the same or different civil court, if it is not possible to join the proceedings, the court, at the request of both parties or of one of them, having heard the other, may by order decree the suspension of the course of the proceedings, in the state in which they are found, until the end of the proceeding which has as its subject matter the prejudicial issue.

Therefore, in accordance with the above-transcribed precept, we find ourselves before a prejudicial question when, between two proceedings, which in some way are connected, the prior resolution of the main object of a pending proceeding is necessary to resolve on the litigious object of the second proceeding, and provided that there is no possibility of accumulating the proceedings.

In order for the civil prejudicialidad to exist, there must be “a real similarity that produces an evident contradiction between what was resolved or is going to be resolved and what is again sought, in such a way that the two rulings cannot exist in harmony, which only becomes evident when the litigants, again under the pretext of varying the reasoning, hiding them or dividing them to allege them in other trials, promote other new ones”.

Law 1 2000 of January 7, 2000, on Civil Procedure

In the words of the Order of the High Court of Justice of Andalusia (Granada) of 10 February 2014 (JUR 2014, 156593), “(w)hether the pre-existence of the other civil proceeding is an essential condition for the suspension to be granted due to prejudicialidad…, it is true that there is no robust and conclusive case law”. In his opinion, “(i)nsofar as prejudicialidad is grouped together as a variant of lis pendens, the case law naturally requires such anteriority…, although certain doctrinal opinions seem to give the civil prejudicialidad provided for in article 43 of the Civil Procedure Act a certain autonomy with respect to prejudicialidad, which would allow it to be disassociated from the chronological requirement”.

In my opinion, this doctrine is debatable, because it would mean recognizing to the allegation of prejudicialidad the effectiveness of a preliminary ruling incident when it does not seem that the (civil) preliminary ruling question, by its nature and its preventive function of positive res judicata, is assimilable to an incidental question of preliminary ruling of those provided for in the Civil Procedure Act (see art. 387).

Civil Procedure Law pdf

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