Thursday, February 23, 2017
CANON LAW: THE CANONICAL TRIAL
TRIALS IN GENERAL (Cann. 1400 - 1403)
Can. 1400 §1. The object of a trial is:
1/ the pursuit or vindication of the rights of physical or juridic persons, or the declaration of juridic facts;
2/ the imposition or declaration of a penalty for delicts.
§2. Nevertheless, controversies arising from an act of administrative power can be brought only before the superior or an administrative tribunal.
Can. 1401 By proper and exclusive right the Church adjudicates:
1/ cases which regard spiritual matters or those connected to spiritual matters;
2/ the violation of ecclesiastical laws and all those matters in which there is a question of sin, in what pertains to the determination of culpability and the imposition of ecclesiastical penalties.
Can. 1402 The following canons govern all tribunals of the Church, without prejudice to the norms of the tribunals of the Apostolic See.
Can. 1403 §1. Special pontifical law governs the causes of canonization of the servants of God.
§2. The prescripts of this Code, however, apply to these causes whenever the special pontifical law refers to the universal law, or norms are involved which also affect these causes by the very nature of the matter.
THE COMPETENT FORUM (Cann. 1404 - 1416)
Can. 1404 The First See is judged by no one.
Can. 1405 §1. It is solely the right of the Roman Pontiff himself to judge in the cases mentioned in ⇒ can. 1401:
1/ those who hold the highest civil office of a state;
3/ legates of the Apostolic See and, in penal cases, bishops;
4/ other cases which he has called to his own judgment.
§2. A judge cannot review an act or instrument confirmed specifically (in forma specifica) by the Roman Pontiff without his prior mandate.
§3. Judgment of the following is reserved to the Roman Rota:
1/ bishops in contentious matters, without prejudice to the prescript of ⇒ can. 1419, §2;
2/ an abbot primate or abbot superior of a monastic congregation and a supreme moderator of religious institutes of pontifical right;
3/ dioceses or other physical or juridic ecclesiastical persons which do not have a superior below the Roman Pontiff.
Can. 1406 §1. If the prescript of ⇒ can. 1404 is violated, the acts and decisions are considered as not to have been placed.
§2. In the cases mentioned in ⇒ can. 1405, the incompetence of other judges is absolute.
Can. 1407 §1. No one can be brought to trial in first instance except before an ecclesiastical judge who is competent by reason of one of the titles determined in cann. 1408-1414.
§2. The incompetence of a judge supported by none of these titles is called relative.
§3. The petitioner follows the forum of the respondent. If the respondent has more than one forum, the choice of forum is granted to the petitioner.
Can. 1408 Anyone can be brought to trial before the tribunal of domicile or quasi-domicile.
Can. 1409 §1. A transient has a forum in the place of his or her actual residence.
§2. A person whose domicile, quasi-domicile, and place of residence are unknown can be brought to trial in the forum of the petitioner provided that no other legitimate forum is available.
Can. 1410 By reason of the location of an object, a party can be brought to trial before the tribunal of the place where the object in dispute is located whenever the action is directed against the object or concerns damages.
Can. 1411 §1. By reason of a contract, a party can be brought to trial before the tribunal of the place where the contract was entered into or must be fulfilled unless the parties agree to choose some other tribunal.
§2. If the case concerns obligations which originate from another title, a party can be brought to trial before the tribunal of the place where the obligation either originated or must be fulfilled.
Can. 1412 In penal cases the accused, even if absent, can be brought to trial before the tribunal of the place where the delict was committed.
Can. 1413 A party can be brought to trial:
1/ in cases which concern administration, before the tribunal of the place where the administration was conducted;
2/ in cases which regard inheritances or pious legacies, before the tribunal of the last domicile, quasi-domicile, or place of residence, according to the norm of ⇒ cann. 1408-1409, of the one whose inheritance or pious legacy is at issue unless it concerns the mere execution of the legacy, which must be examined according to the ordinary norms of competence.
Can. 1414 By reason of connection, interconnected cases must be adjudicated by one and the same tribunal in the same process unless a prescript of law prevents this.
Can. 1415 By reason of prevention, if two or more tribunals are equally competent, the right of adjudicating the case belongs to the one which legitimately cited the respondent first.
Can. 1416 The appellate tribunal resolves conflicts of competence between tribunals subject to it; if the tribunals are not subject to the same appellate tribunal, the Apostolic Signatura resolves conflicts of competence.
DIFFERENT GRADES AND KINDS OF TRIBUNALS (Cann. 1417 - 1445)
Can. 1417 §1. By reason of the primacy of the Roman Pontiff, any member of the faithful is free to bring or introduce his or her own contentious or penal case to the Holy See for adjudication in any grade of a trial and at any stage of the litigation.
§2. Recourse brought to the Apostolic See, however, does not suspend the exercise of jurisdiction by a judge who has already begun to adjudicate a case except in the case of an appeal. For this reason, the judge can prosecute a trial even to the definitive sentence unless the Apostolic See has informed the judge that it has called the case to itself.
Can. 1418 Any tribunal has the right to call upon the assistance of another tribunal to instruct a case or to communicate acts.
THE TRIBUNAL OF FIRST INSTANCE
Can. 1419 §1. In each diocese and for all cases not expressly excepted by law, the judge of first instance is the diocesan bishop, who can exercise judicial power personally or through others according to the following canons.
§2. If a case concerns the rights or temporal goods of a juridic person represented by the bishop, the appellate tribunal judges in first instance.
Can. 1420 §1. Each diocesan bishop is bound to appoint a judicial vicar, or offcialis, with ordinary power to judge, distinct from the vicar general unless the small size of the diocese or the small number of cases suggests otherwise.
§2. The judicial vicar constitutes one tribunal with the bishop but cannot judge cases which the bishop reserves to himself.
§3. The judicial vicar can be given assistants who are called adjutant judicial vicars, or vice-officiales.
§4. Both the judicial vicar and adjutant judicial vicars must be priests, of unimpaired reputation, doctors or at least licensed in canon law, and not less than thirty years of age.
§5. When the see is vacant, they do not cease from their function and cannot be removed by the diocesan administrator; when the new bishop arrives, however, they need confirmation.
Can. 1421 §1. In a diocese, the bishop is to appoint diocesan judges, who are to be clerics.
§2. The conference of bishops can also permit the appointment of lay persons as judges; when it is necessary, one of them can be selected to form a college.
§3. Judges are to be of unimpaired reputation and doctors or at least licensed in canon law.
Can. 1422 The judicial vicar, adjutant judicial vicars, and other judges are appointed for a definite time, without prejudice to the prescript of ⇒ can. 1420, §5 and cannot be removed except for a legitimate and grave cause.
Can. 1423 §1. With the approval of the Apostolic See, several diocesan bishops can agree to establish a single tribunal of first instance for their dioceses in place of the diocesan tribunals mentioned in ⇒ cann. 1419-1421. In this case, the group of bishops or a bishop they designate has all the powers which a diocesan bishop has over his own tribunal.
§2. The tribunals mentioned in §1 can be established either for any cases whatsoever or only for certain types of cases.
Can. 1424 In any trial, a single judge can employ two assessors who consult with him; they are to be clerics or lay persons of upright life.
Can. 1425 §1. With every contrary custom reprobated, the following cases are reserved to a collegiate tribunal of three judges:
1/ contentious cases: a) concerning the bond of sacred ordination; b) concerning the bond of marriage, without prejudice to the prescripts of cann. ⇒ 1686 and ⇒ 1688;
2/ penal cases: a) concerning delicts which can entail the penalty of dismissal from the clerical state; b) concerning the imposition or declaration of an excommunication.
§2. The bishop can entrust more difficult cases or those of greater importance to the judgment of three or five judges.
§3. Unless the bishop establishes otherwise in individual cases, the judicial vicar is to assign the judges in order by turn to adjudicate individual cases.
§4. If it happens that a collegiate tribunal cannot be established in the first instance of a trial, the conference of bishops can permit the bishop, for as long as the impossibility continues, to entrust cases to a single clerical judge who is to employ an assessor and auditor where possible.
§5. The judicial vicar is not to substitute judges once they have been assigned except for a most grave cause expressed in a decree.
Can. 1426 §1. A collegiate tribunal must proceed collegially and render its sentences by majority vote.
§2. The judicial vicar or an adjutant judicial vicar must preside over a collegiate tribunal insofar as possible.
Can. 1427 §1. If there is a controversy between religious or houses of the same clerical religious institute of pontifical right, the judge of first instance is the provincial superior unless the constitutions provide otherwise; if it is an autonomous monastery, the local abbot judges in first instance.
§2. Without prejudice to a different prescript of the constitutions, if a contentious matter arises between two provinces, the supreme moderator will judge in first instance either personally or through a delegate; if the controversy is between two monasteries, the abbot superior of the monastic congregation will judge in first instance.
§3. Finally, if the controversy arises between physical or juridic religious persons of different religious institutes or of the same clerical institute of diocesan right or of the same lay institute, or between a religious and a secular cleric or lay person or a non-religious juridic person, the diocesan tribunal judges in first instance.
AUDITORS AND RELATORS
Can. 1428 §1. The judge or the president of a collegiate tribunal can designate an auditor, selected either from the judges of the tribunal or from persons the bishop approves for this function, to instruct the case.
§2. The bishop can approve for the function of auditor clerics or lay persons outstanding for their good character, prudence, and doctrine.
§3. It is for the auditor, according to the mandate of the judge, only to collect the proofs and hand those collected over to the judge. Unless the mandate of the judge prevents it, however, the auditor can in the meantime decide what proofs are to be collected and in what manner if a question may arise about this while the auditor exercises his or her function.
Can. 1429 The president of a collegiate tribunal must designate one of the judges of the college as the ponens or relator who is to report about the case at the meeting of the judges and put the sentence into writing. For a just cause the president can substitute another in place of the original relator.
THE PROMOTER OF JUSTICE, THE DEFENDER OF THE BOND, AND THE NOTARY
Can. 1430 A promoter of justice is to be appointed in a diocese for contentious cases which can endanger the public good and for penal cases; the promoter of justice is bound by office to provide for the public good.
Can. 1431 §1. In contentious cases, it is for the diocesan bishop to judge whether or not the public good can be endangered unless the intervention of the promoter of justice is prescribed by law or is clearly necessary from the nature of the matter.
§2. If the promoter of justice has intervened in a previous instance, such intervention is presumed necessary in a further instance.
Can. 1432 A defender of the bond is to be appointed in a diocese for cases concerning the nullity of sacred ordination or the nullity or dissolution of a marriage; the defender of the bond is bound by office to propose and explain everything which reasonably can be brought forth against nullity or dissolution.
Can. 1433 If the promoter of justice or defender of the bond was not cited in cases which require their presence, the acts are invalid unless they actually took part even if not cited or, after they have inspected the acts, at least were able to fulfill their function before the sentence.
Can. 1434 Unless other provision is expressly made:
1/ whenever the law requires the judge to hear either both or one of the parties, the promoter of justice and the defender of the bond must also be heard if they take part in the trial;
2/ whenever the request of a party is required in order for the judge to be able to decide something, the request of the promoter of justice or defender of the bond who takes part in the trial has the same force.
Can. 1435 It is for the bishop to appoint the promoter of justice and defender of the bond; they are to be clerics or lay persons, of unimpaired reputation, doctors or licensed in canon law, and proven in prudence and zeal for justice.
Can. 1436 §1. The same person can hold the office of promoter of justice and defender of the bond but not in the same case.
§2. The promoter and the defender can be appointed for all cases or for individual cases; however, the bishop can remove them for a just cause.
Can. 1437 §1. A notary is to take part in any process, so much so that the acts are null if the notary has not signed them.
§2. Acts which notaries prepare warrant public trust.
THE TRIBUNAL OF SECOND INSTANCE
Can. 1438 Without prejudice to the prescript of ⇒ can. 1444, §1, n. 1:
1/ from the tribunal of a suffragan bishop, appeal is made to the metropolitan tribunal, without prejudice to the prescript of ⇒ can. 1439;
2/ in cases tried in first instance before the metropolitan, appeal is made to the tribunal which the metropolitan has designated in a stable manner with the approval of the Apostolic See;
3/ for cases tried before a provincial superior, the tribunal of second instance is under the authority of the supreme moderator; for cases tried before the local abbot, the tribunal of second instance is under the authority of the abbot superior of the monastic congregation.
Can. 1439 §1. If a single tribunal of first instance has been established for several dioceses according to the norm of
Can. 1423, the conference of bishops must establish a tribunal of second instance with the approval of the Apostolic See unless the dioceses are all suffragan of the same archdiocese.
§2. With the approval of the Apostolic See, a conference of bishops can establish one or more tribunals of second instance in addition to the cases mentioned in §1.
§3. Over the tribunals of second instance mentioned in §§1-2, the conference of bishops or the bishop it designates has all the powers which a diocesan bishop has over his own tribunal.
Can. 1440 If competence by reason of grade according to the norm of cann. ⇒ 1438 and ⇒ 1439 is not observed, the incompetence of the judge is absolute.
Can. 1441 The tribunal of second instance must be established in the same way as the tribunal of first instance.
Nevertheless, if a single judge rendered a sentence in the first instance of the trial according to ⇒ can. 1425, §4, the tribunal of second instance is to proceed collegially.
THE TRIBUNALS OF THE APOSTOLIC SEE
Can. 1442 The Roman Pontiff is the supreme judge for the entire Catholic world; he renders judicial decisions personally, through the ordinary tribunals of the Apostolic See, or through judges he has delegated.
Can. 1443 The Roman Rota is the ordinary tribunal established by the Roman Pontiff to receive appeals.
Can. 1444 §1. The Roman Rota judges:
1/ in second instance, cases which have been adjudicated by the ordinary tribunals of first instance and brought before the Holy See through legitimate appeal;
2/ in third or further instance, cases which the Roman Rota or any other tribunals have already adjudicated unless the matter is a res iudicata.
§2. This tribunal also judges in first instance the cases mentioned in ⇒ can. 1405, §3 and others which the Roman Pontiff, either motu proprio or at the request of the parties, has called to his own tribunal and entrusted to the Roman Rota; unless the rescript entrusting the function provides otherwise, the Rota also judges these cases in second and further instance.
Can. 1445 §1. The supreme tribunal of the Apostolic Signatura adjudicates:
1/ complaints of nullity, petitions for restitutio in integrum and other recourses against rotal sentences;
2/ recourses in cases concerning the status of persons which the Roman Rota refused to admit to a new examination;
3/ exceptions of suspicion and other cases against the auditors of the Roman Rota for acts done in the exercise of their function;
4/ conflicts of competence mentioned in ⇒ can. 1416.
§2. This tribunal deals with conflicts which have arisen from an act of ecclesiastical administrative power and are brought before it legitimately, with other administrative controversies which the Roman Pontiff or the dicasteries of the Roman Curia bring before it, and with a conflict of competence among these dicasteries.
§3. Furthermore it is for this supreme tribunal:
1/ to watch over the correct administration of justice and discipline advocates or procurators if necessary;
2/ to extend the competence of tribunals;
3/ to promote and approve the erection of the tribunals mentioned in cann. ⇒ 1423 and ⇒ 1439.
THE DISCIPLINE TO BE OBSERVED IN TRIBUNALS (Cann. 1446 - 1475)
THE DUTY OF JUDGES AND MINISTERS OF THE TRIBUNAL
Can. 1446 §1. All the Christian faithful, and especially bishops, are to strive diligently to avoid litigation among the people of God as much as possible, without prejudice to justice, and to resolve litigation peacefully as soon as possible.
§2. Whenever the judge perceives some hope of a favorable outcome at the start of litigation or even at any other time, the judge is not to neglect to encourage and assist the parties to collaborate in seeking an equitable solution to the controversy and to indicate to them suitable means to this end, even by using reputable persons for mediation.
§3. If the litigation concerns the private good of the parties, the judge is to discern whether the controversy can be concluded advantageously by an agreement or the judgment of arbitrators according to the norm of ⇒ cann. 1713-1716.
Can. 1447 A person who has taken part in a case as a judge, promoter of justice, defender of the bond, procurator, advocate, witness, or expert cannot later in another instance validly decide the same case as judge or perform the function of assessor.
Can. 1448 §1. A judge is not to undertake the adjudication of a case in which the judge is involved by reason of consanguinity or affinity in any degree of the direct line and up to the fourth degree of the collateral line or by reason of trusteeship, guardianship, close acquaintance, great animosity, the making of a profit, or the avoidance of a loss.
§2. In these circumstances the promoter of justice, the defender of the bond, the assessor, and the auditor must abstain from their office.
Can. 1449 §1. If in the cases mentioned in ⇒ can. 1448 the judge does not withdraw, a party can lodge an objection against the judge.
§2. The judicial vicar deals with the objection; if the objection is lodged against him, the bishop who presides over the tribunal deals with it.
§3. If the bishop is the judge and the objection is lodged against him, he is to abstain from judging.
§4. If the objection is lodged against the promoter of justice, the defender of the bond, or other officials of the tribunal, the president in a collegiate tribunal or the single judge deals with this exception.
Can. 1450 If the objection is accepted, the persons must be changed but not the grade of the trial.
Can. 1451 §1. The question of an objection must be decided as promptly as possible (expeditissime) after the parties have been heard as well as the promoter of justice or defender of the bond, if they take part in the trial and are not the ones against whom the objection has been lodged.
§2. Acts placed by a judge before an objection is lodged are valid; nevertheless, those acts placed after the objection has been lodged must be rescinded if a party requests it within ten days from the acceptance of the objection.
Can. 1452 §1. In a matter which concerns private persons alone, a judge can proceed only at the request of a party.
Once a case has been legitimately introduced, however, the judge can and must proceed even ex officio in penal cases and other cases which regard the public good of the Church or the salvation of souls.
§2. Furthermore, the judge can supply for the negligence of the parties in furnishing proofs or in lodging exceptions whenever the judge considers it necessary in order to avoid a gravely unjust judgment, without prejudice to the prescripts of ⇒ can. 1600.
Can. 1453 Without prejudice to justice, judges and tribunals are to take care that all cases are completed as soon as possible and that in a tribunal of first instance they are not prolonged beyond a year and in a tribunal of second instance beyond six months.
Can. 1454 All who constitute a tribunal or assist it must take an oath to carry out their function correctly and faithfully.
Can. 1455 §1. Judges and tribunal personnel are always bound to observe secrecy of office in a penal trial, as well as in a contentious trial if the revelation of some procedural act could bring disadvantage to the parties.
§2. They are also always bound to observe secrecy concerning the discussion among the judges in a collegiate tribunal before the sentence is passed and concerning the various votes and opinions expressed there, without prejudice to the prescript of ⇒ can. 1609, §4.
§3. Whenever the nature of the case or the proofs is such that disclosure of the acts or proofs will endanger the reputation of others, provide opportunity for discord, or give rise to scandal or some other disadvantage, the judge can bind the witnesses, the experts, the parties, and their advocates or procurators by oath to observe secrecy.
Can. 1456 The judge and all officials of the tribunal are prohibited from accepting any gifts on the occasion of their acting in a trial.
Can. 1457 §1. The competent authority can punish with fitting penalties, not excluding privation from office, judges who refuse to render a judgment when they are certainly and manifestly competent, who declare themselves competent with no supporting prescript of law and adjudicate and decide cases, who violate the law of secrecy, or who inflict some other damage on the litigants out of malice or grave negligence.
§2. The ministers and personnel of a tribunal are subject to these same sanctions if they fail in their office as described above; the judge can also punish all of them.
THE ORDER OF ADJUDICATION
Can. 1458 Cases are to be adjudicated in the order in which they were presented and inscribed in the register unless one of them requires speedier treatment than the others; this fact must be established through a special decree which gives the substantiating reasons.
Can. 1459 §1. Defects which can render the sentence null can be introduced as exceptions at any stage or grade of the trial; the judge can likewise declare them ex officio.
§2. In addition to the cases mentioned in §1, dilatory exceptions, especially those which regard the persons and the manner of the trial, must be proposed before the joinder of the issue unless they emerged after the issue was already joined; they must be decided as soon as possible.
Can. 1460 §1. If an exception is proposed against the competence of the judge, that judge must deal with the matter.
§2. In the case of an exception of relative incompetence, if the judge finds for competence, the decision does not admit of appeal; a complaint of nullity and restitutio in integrum, however, are not prohibited.
§3. If the judge finds for incompetence, however, the party who feels injured can appeal to the appellate tribunal within fifteen useful days.
Can. 1461 A judge who becomes aware of being absolutely incompetent at any stage of the case must declare the incompetence.
Can. 1462 §1. Exceptions of res iudicata, of agreement, and other peremptory exceptions which are called litis finitae must be proposed and adjudicated before the joinder of the issue. A person who proposes them later must not be rejected but is liable for expenses unless the person proves that the presentation was not delayed maliciously.
§2. Other peremptory exceptions are to be proposed during the joinder of the issue and must be treated at the proper time according to the rules for incidental questions.
Can. 1463 §1. Counterclaims cannot be proposed validly except within thirty days from the joinder of the issue.
§2. They are to be adjudicated, however, along with the original action, that is, in the same grade with it unless it is necessary to adjudicate them separately or the judge considers it more opportune to do so.
Can. 1464 Questions concerning the provision for judicial expenses or a grant of gratuitous legal assistance which had been requested from the very beginning and other such questions as a rule must be dealt with before the joinder of the issue.
TIME LIMITS AND DELAYS
Can. 1465 §1. Fatalia legis, that is, the time limits established by law for extinguishing rights, cannot be extended nor validly shortened unless the parties request it.
§2. Before the judicial or conventional time limits lapse, however, the judge can extend them for a just cause after the parties have been heard or if they request it; the judge, however, can never shorten those limits validly unless the parties agree.
§3. Nevertheless, the judge is to take care that such an extension does not overly prolong the litigation.
Can. 1466 When the law in no way establishes time limits for completing procedural acts, the judge must define them after having taken into consideration the nature of each act.
Can. 1467 If the tribunal is closed on the day scheduled for a judicial act, the time limit is extended to the first day following which is not a holiday.
THE PLACE OF THE TRIAL
Can. 1468 Insofar as possible, every tribunal is to be in an established location open during stated hours.
Can. 1469 §1. A judge expelled by force from his territory or impeded from the exercise of jurisdiction there can exercise jurisdiction and render a sentence outside that territory; the diocesan bishop, however, is to be informed of this.
§2. In addition to the case mentioned in §1, for a just cause and after having heard the parties, the judge can also go outside the territory to acquire proofs. This is to be done, however, with the permission of the diocesan bishop of the place where the judge goes and in the location designated by that bishop.
PERSONS TO BE ADMITTED TO THE COURT AND THE MANNER OF PREPARING AND KEEPING THE ACTS
Can. 1470 §1. Unless particular law provides otherwise, while cases are being heard before the tribunal, only those persons are to be present in court whom the law or the judge has established as necessary to expedite the process.
§2. With appropriate penalties, the judge can call to task all those present at a trial who are gravely lacking in the respect and obedience due the tribunal; furthermore, the judge can also suspend advocates and procurators from the exercise of their function in ecclesiastical tribunals.
Can. 1471 If a person to be questioned speaks a language unknown to the judge or the parties, an interpreter designated by the judge and under oath is to be used. The statements, however, are to be put into writing in the original language and a translation added. An interpreter is also to be used if a speech or hearing impaired person must be questioned unless the judge may prefer the person to answer the questions in writing.
Can. 1472 §1. The judicial acts, both the acts of the case, that is, those regarding the merit of the question, and the acts of the process, that is, those pertaining to the procedure, must be put in writing.
§2. The individual pages of the acts are to be numbered and authenticated.
Can. 1473 Whenever judicial acts require the signature of the parties or witnesses and the party or witness is unable or unwilling to sign, this is to be noted in the acts; the judge and the notary are also to attest that the act was read to the party or the witness verbatim and that the party or the witness was either not able or unwilling to sign.
Can. 1474 §1. In the case of an appeal, a copy of the acts authenticated by the attestation of a notary is to be sent to the higher tribunal.
§2. If the acts were written in a language unknown to the higher tribunal, they are to be translated into one known to that tribunal, with due precautions taken that the translation is a faithful one.
Can. 1475 §1. When the trial has been completed, documents which belong to private persons must be returned; a copy of them, however, is to be retained.
§2. Without a mandate of the judge, notaries and the chancellor are forbidden to furnish a copy of the judicial acts and documents acquired in the process.
THE PARTIES IN A CASE (Cann. 1476 - 1490)
The Petitioner and the Respondent
Can. 1476 Anyone, whether baptized or not, can bring action in a trial; however, a party legitimately summoned must respond.
Can. 1477 Even if the petitioner or respondent has appointed a procurator or advocate, they themselves are nevertheless always bound to be present at the trial according to the prescript of the law or of the judge.
Can. 1478 §1. Minors and those who lack the use of reason can stand trial only through their parents, guardians, or curators, without prejudice to the prescript of §3.
§2. If the judge thinks that the rights of minors are in conflict with the rights of the parents, guardians, or curators or that the latter cannot adequately protect the rights of the former, then the minors are to stand trial through a guardian or curator appointed by the judge.
§3. Nevertheless, in spiritual cases and those connected with spiritual matters, if the minors have attained the use of reason, they can petition and respond without the consent of their parents or guardian. They can do so personally if they have completed their fourteenth year of age; otherwise, they do so through the curator appointed by the judge.
§4. Those deprived of the administration of goods and those of diminished mental capacity can stand trial personally only to answer for their own delicts or at the order of the judge; otherwise, they must petition and respond through their curators.
Can. 1479 Whenever a guardian or curator appointed by civil authority is present, the ecclesiastical judge can admit the guardian or curator after having heard, if possible, the diocesan bishop of the person to whom the guardian or curator was given; if the guardian or curator is not present or does not seem admissible, the judge will appoint a guardian or curator for the case.
Can. 1480 §1. Juridic persons stand trial through their legitimate representatives.
§2. In a case of the lack of or negligence of the representative, however, the ordinary himself can stand trial personally or through another in the name of juridic persons subject to his authority.
PROCURATORS FOR LITIGATION AND ADVOCATES
Can. 1481 §1. A party can freely appoint an advocate and procurator; except for the cases established in §§2 and 3, however, the party can also petition and respond personally unless the judge has decided that the services of a procurator or advocate are necessary.
§2. In a penal trial, the accused must always have an advocate either appointed personally or assigned by the judge.
§3. In a contentious trial which involves minors or in a trial which affects the public good, with the exception of marriage cases, the judge is to appoint ex officio a defender for a party who does not have one.
Can. 1482 §1. A person can appoint only one procurator who cannot substitute another unless the procurator has been given the expressed faculty to do so.
§2. If a person appoints several procurators for a just cause, however, they are to be designated in such a way that prevention is operative among them.
§3. Nevertheless, several advocates can be appointed together.
Can. 1483 The procurator and advocate must have attained the age of majority and be of good reputation; moreover, the advocate must be a Catholic unless the diocesan bishop permits otherwise, a doctor in canon law or otherwise truly expert, and approved by the same bishop.
Can. 1484 §1. Before the procurator and advocate undertake their function, they must present an authentic mandate to the tribunal.
§2. To prevent the extinction of a right, however, the judge can admit a procurator even if the mandate has not been presented, once a suitable guarantee has been furnished if the case warrants it; the act, however, lacks any force if the procurator does not correctly present the mandate within the peremptory time established by the judge.
Can. 1485 Without a special mandate, a procurator cannot validly renounce an action, an instance, or judicial acts nor come to an agreement, make a bargain, enter into arbitration, or in general do those things for which the law requires a special mandate.
Can. 1486 §1. For the removal of a procurator or advocate to take effect, they must be informed; if the issue has already been joined, the judge and the opposing party must also be informed about the removal.
§2. After the definitive sentence has been issued, the right and duty to appeal, if the mandating person does not refuse, remains with the procurator.
Can. 1487 For a grave cause, the judge either ex officio or at the request of the party can remove the procurator and the advocate by decree.
Can. 1488 §1. Both the procurator and the advocate are forbidden to resolve the litigation by bribery or to make an agreement for an excessive profit or for a share in the object in dispute. If they do so, the agreement is null, and the judge can fine them. Moreover, the bishop who presides over the tribunal can suspend the advocate from office and even remove him or her from the list of advocates if it happens again.
§2. Advocates and procurators can be punished in the same way if in deceit of the law they withdraw cases from competent tribunals so that the cases will be decided more favorably by other tribunals.
Can. 1489 Advocates and procurators who betray their office for gifts, promises, or any other reason are to be suspended from the exercise of legal assistance and punished with a fine or other suitable penalties.
Can. 1490 As far as possible, legal representatives are to be appointed in a stable manner in each tribunal, who receive a stipend from the tribunal and are to exercise, especially in marriage cases, the function of advocate or procurator on behalf of parties who wish to select them.
ACTIONS AND EXCEPTIONS (Cann. 1491 - 1500)
ACTIONS AND EXCEPTIONS IN GENERAL
Can. 1491 Every right is protected not only by an action but also by an exception unless other provision is expressly made.
Can. 1492 §1. Every action is extinguished by prescription according to the norm of law or by some other legitimate means, with the exception of actions concerning the status of persons, which are never extinguished.
§2. Without prejudice to the prescript of ⇒ can. 1462, an exception is always available and is perpetual by its very nature.
Can. 1493 A petitioner can bring a person to trial with several actions at once, either concerning the same or different matters, so long as the actions do not conflict among themselves and do not exceed the competence of the tribunal approached.
Can. 1494 §1. The respondent can file a counterclaim against the petitioner before the same judge in the same trial either because of the connection of the case with the principal action or to remove or diminish the claim of the petitioner.
§2. A counterclaim to a counterclaim is not allowed.
Can. 1495 The counterclaim must be presented to the judge before whom the first action was filed even if the judge was delegated for only one case or is otherwise relatively incompetent.
SPECIFIC ACTIONS AND EXCEPTIONS
Can. 1496 §1. A person, who through at least probable arguments has shown a right over something held by another and the threat of damage unless the thing is placed in safekeeping, has the right to obtain its sequestration from the judge.
§2. In similar circumstances, a person can obtain an order to restrain another from the exercise of a right.
Can. 1497 §1. Sequestration of a thing is also allowed as security for a loan provided that the right of the creditor is sufficiently evident.
§2. Sequestration can also be extended to the goods of the debtor which are discovered in the possession of others under any title and to the loans of the debtor.
Can. 1498 Sequestration of a thing and restraint upon the exercise of a right can in no way be decreed if the harm which is feared can be repaired in another way and suitable security for its repair is offered.
Can. 1499 A judge who grants the sequestration of a thing or a restraint upon the exercise of a right can first impose an obligation upon the person to compensate for damages if that person’s right is not proven.
Can. 1500 The prescripts of the civil law of the place where the object whose possession is in question is located are to be observed regarding the nature and force of a possessory action.
THE INTRODUCTION OF THE CASE (Cann. 1501 - 1512)
The Introductory Libellus of Litigation
Can. 1501 A judge cannot adjudicate a case unless the party concerned or the promoter of justice has presented a petition according to the norm of the canons.
Can. 1502 A person who wishes to bring another to trial must present to a competent judge a libellus which sets forth the object of the controversy and requests the services of the judge.
Can. 1503 §1. The judge can accept an oral petition whenever the petitioner is impeded from presenting a libellus or the case is easily investigated and of lesser importance.
§2. In either case, however, the judge is to order the notary to put the act into writing; the written record must be read to and approved by the petitioner and has all the legal effects of a libellus written by the petitioner.
Can. 1504 The libellus, which introduces litigation, must:
1/ express the judge before whom the case is introduced, what is being sought and by whom it is being sought;
2/ indicate the right upon which the petitioner bases the case and, at least generally, the facts and proofs which will prove the allegations;
3/ be signed by the petitioner or the petitioner’s procurator, indicating the day, month, and year, and the address where the petitioner or procurator lives or where they say they reside for the purpose of receiving the acts;
4/ indicate the domicile or quasi-domicile of the respondent.
Can. 1505 §1. When a single judge or the president of a collegiate tribunal has seen that the matter is within his competence and the petitioner does not lack legitimate personal standing in the trial, he must accept or reject the libellus as soon as possible by decree.
§2. A libellus can be rejected only:
1/ if the judge or tribunal is incompetent;
2/ if without doubt it is evident that the petitioner lacks legitimate personal standing in the trial;
3/ if the prescripts of ⇒ can. 1504, nn. 1-3 have not been observed;
4/ if it is certainly clear from the libellus itself that the petition lacks any basis and that there is no possibility that any such basis will appear through a process.
§3. If the libellus has been rejected because of defects which can be corrected, the petitioner can resubmit a new, correctly prepared libellus to the same judge.
§4. A party is always free within ten available days to make recourse with substantiating reasons against the rejection of a libellus either to the appellate tribunal or to the college if the libellus was rejected by the presiding judge; the question of the rejection is to be decided as promptly as possible (expeditissime).
Can. 1506 If within a month from the presentation of the libellus the judge has not issued a decree which accepts or rejects the libellus according to the norm of ⇒ can. 1505, the interested party can insist that the judge fulfill his function. If the judge takes no action within ten days from the request, then the libellus is to be considered as accepted.
THE CITATION AND NOTIFICATION OF JUDICIAL ACTS
Can. 1507 §1. In the decree which accepts the libellus of the petitioner, the judge or the presiding judge must call the other parties to trial, that is, cite them to the joinder of the issue, establishing whether they must respond in writing or present themselves before the judge to come to agreement about the doubts. If from the written responses the judge perceives it necessary to convene the parties, the judge can establish that by a new decree.
§2. If the libellus is considered as accepted according to the norm of ⇒ can. 1506, the decree of citation to the trial must be issued within twenty days from the request mentioned in that canon.
§3. If the litigating parties de facto present themselves before the judge to pursue the case, however, there is no need for a citation, but the notary is to note in the acts that the parties were present for the trial.
Can. 1508 §1. The decree of citation to the trial must be communicated immediately to the respondent and at the same time to others who must appear.
§2. The libellus which introduces litigation is to be attached to the citation unless for grave causes the judge determines that the libellus must not be made known to the party before that party makes a deposition in the trial.
§3. If litigation is introduced against someone who does not have the free exercise of his or her rights or the free administration of the things in dispute, the citation must be communicated, as the case may be, to the guardian, curator, or special procurator, that is, the one who is bound to undertake the trial in the name of that person according to the norm of law.
Can. 1509 §1. The notification of citations, decrees, sentences, and other judicial acts must be made through the public postal services or by some other very secure method according to the norms established in particular law.
§2. The fact of notification and its method must be evident in the acts.
Can. 1510 A respondent who refuses to accept the document of citation or who prevents its delivery is considered to be legitimately cited.
Can. 1511 If the citation was not communicated legitimately, the acts of the process are null, without prejudice to the prescript of ⇒ can. 1507, §3.
Can. 1512 When the citation has been communicated legitimately or the parties have appeared before the judge to pursue the case:
1/ the matter ceases to be res integra;
2/ the case becomes proper to the otherwise competent judge or tribunal before which the action was initiated;
3/ the jurisdiction of a delegated judge is fixed in such a way that it does not cease when the authority of the one delegating expires;
4/ prescription is interrupted unless other provision is made;
5/ the litigation begins to be pending; therefore, the principle while litigation is pending, nothing is to be altered immediately takes effect.
THE JOINDER OF THE ISSUE (Cann. 1513 - 1516)
Can. 1513 §1. The joinder of the issue (contestatio litis) occurs when the terms of the controversy, derived from the petitions and responses of the parties, are defined through a decree of the judge.
§2. The petitions and responses of the parties, besides those in the libellus which introduces the litigation, can be expressed either in a response to the citation or in the oral declarations made before the judge; in more difficult cases, however, the judge must convene the parties to resolve the doubt or doubts which must be answered in the sentence.
§3. The decree of the judge must be communicated to the parties; unless they have already agreed to the terms, the parties can make recourse to the judge within ten days in order to change them; a decree of the judge, however, must resolve the question as promptly as possible (expeditissime).
Can. 1514 Once established, the terms of the controversy cannot be changed validly except by a new decree, for a grave cause, at the request of a party, and after the other parties have been heard and their arguments considered.
Can. 1515 After the issue has been joined, the possessor of the property of another ceases to be in good faith; therefore, if the possessor is sentenced to restore the property, the person must also return the profits made from the day of the joinder and repair any damages.
Can. 1516 After the issue has been joined, the judge is to prescribe a suitable time for the parties to present and complete the proofs.
THE TRIAL OF THE LITIGATION (Cann. 1517 - 1525)
Can. 1517 A trial begins with the citation; it ends not only by the pronouncement of a definitive sentence but also by other methods defined by law.
Can. 1518 If the litigating party dies, changes status, or ceases from the office in virtue of which action is taken:
1/ if the case has not yet been concluded, the trial is suspended until the heir of the deceased, the successor, or an interested party resumes the litigation;
2/ if the case has been concluded, the judge must proceed to the additional acts, after having cited the procurator, if there is one, or otherwise the heir of the deceased or the successor.
Can. 1519 §1. If the guardian, curator, or procurator who is necessary according to the norm of ⇒ can. 1481, §§1 and 3 ceases from that function, the trial is suspended in the meantime.
§2. The judge, however, is to appoint another guardian or curator as soon as possible; the judge can appoint a procurator for the litigation if the party has neglected to do so within the brief time period established by the judge.
Can. 1520 If the parties, without any impediment, propose no procedural act for six months, the trial is abated.
Particular law can establish other terms of abatement.
Can. 1521 Abatement takes effect by the law itself against all persons, including minors or those equivalent to minors, and must be declared ex officio, without prejudice to the right of seeking indemnity against guardians, curators, administrators, or procurators, who have not proved that they were not negligent.
Can. 1522 Abatement extinguishes the acts of the process but not the acts of the case; indeed these acts can also have force in another trial provided that the case involves the same persons and the same issue; regarding those not party to the case, however, the acts have no force other than that of documents.
Can. 1523 Each litigant is to bear the expenses of the abated trial which that litigant has incurred.
Can. 1524 §1. The petitioner can renounce the trial at any stage or grade of the trial; likewise both the petitioner and the respondent can renounce either all or only some of the acts of the process.
§2. To renounce a trial, guardians and administrators of juridic persons need the counsel or consent of those whose involvement is required to place acts which exceed the limits of ordinary administration.
§3. To be valid, a renunciation must be written and signed by the party or by a procurator of the party who has a special mandate to do so; it must be communicated to the other party, accepted or at least not challenged by that party, and accepted by the judge.
Can. 1525 A renunciation accepted by the judge has the same effects for the acts renounced as the abatement of the trial; it also obliges the renouncing party to pay the expenses for the acts renounced.
PROOFS (Cann. 1526 - 1586)
Can. 1526 §1. The burden of proof rests upon the person who makes the allegation.
§2. The following do not need proof:
1/ matters presumed by the law itself;
2/ facts alleged by one of the contending parties and admitted by the other unless the law or the judge nevertheless requires proof.
Can. 1527 §1. Proofs of any kind which seem useful for adjudicating the case and are licit can be brought forward.
§2. If a party insists that a proof rejected by a judge be accepted, the judge is to decide the matter as promptly as possible (expeditissime).
Can. 1528 If a party or a witness refuses to appear before the judge to testify, it is permissible to hear them through a lay person designated by the judge or to require of them a declaration either before a notary public or in any other legitimate manner.
Can. 1529 Except for a grave cause, the judge is not to proceed to collect the proofs before the joinder of the issue.
THE DECLARATIONS OF THE PARTIES
Can. 1530 The judge can always question the parties to draw out the truth more effectively and indeed must do so at the request of a party or to prove a fact which the public interest requires to be placed beyond doubt.
Can. 1531 §1. A party legitimately questioned must respond and must tell the whole truth.
§2. If a party refuses to respond, it is for the judge to decide what can be inferred from that refusal concerning the proof of the facts.
Can. 1532 In cases where the public good is at stake, the judge is to administer an oath to the parties to tell the truth or at least to confirm the truth of what they have said unless a grave cause suggests otherwise; the same can be done in other cases according to the judge’s own prudence.
Can. 1533 The parties, the promoter of justice, and the defender of the bond can present the judge with items about which the party is to be questioned.
Can. 1534 The provisions of cann. ⇒ 1548, §2, n. 1, ⇒ 1552, and ⇒ 1558-1565 concerning witnesses are to be observed to the extent possible when questioning the parties.
Can. 1535 A judicial confession is the written or oral assertion of some fact against oneself before a competent judge by any party concerning the matter of the trial, whether made spontaneously or while being questioned by the judge.
Can. 1536 §1. The judicial confession of one party relieves the other parties from the burden of proof if it concerns some private matter and the public good is not at stake.
§2. In cases which regard the public good, however, a judicial confession and declarations of the parties which are not confessions can have a probative force which the judge must evaluate together with the other circumstances of the case; the force of full proof cannot be attributed to them, however, unless other elements are present which thoroughly corroborate them.
Can. 1537 After considering all the circumstances, it is for the judge to decide how much value must be accorded an extrajudicial confession introduced into the trial.
Can. 1538 A confession or any other declaration of a party lacks any force if it is shown that it was made due to an error of fact or extorted by force or grave fear.
PROOF THROUGH DOCUMENTS
Can. 1539 In any kind of trial, proof by means of both public and private documents is allowed.
THE NATURE AND TRUSTWORTHINESS OF DOCUMENTS
Can. 1540 §1. Public ecclesiastical documents are those which a public person has drawn up in the exercise of that person’s function in the Church, after the solemnities prescribed by law have been observed.
§2. Public civil documents are those which the laws of each place consider to be such.
§3. Other documents are private.
Can. 1541 Unless contrary and evident arguments prove otherwise, public documents are to be trusted concerning everything which they directly and principally affirm.
Can. 1542 A private document, whether acknowledged by a party or approved by the judge, has the same force of proof against the author or signatory and those deriving a case from them as an extrajudicial confession. It has the same force against those who are not parties to the case as declarations of the parties which are not confessions, according to the norm of ⇒ can. 1536, §2.
Can. 1543 If the documents are shown to have been erased, emended, falsified, or otherwise defective, it is for the judge to decide what value, if any, must be afforded them.
THE PRESENTATION OF DOCUMENTS
Can. 1544 Documents do not have probative force in a trial unless they are originals or authentic copies and deposited at the tribunal chancery so that the judge and the opposing party can examine them.
Can. 1545 The judge can order a document common to both parties to be presented in the process.
Can. 1546 §1. Even if documents are common, no one is bound to present those which cannot be communicated without danger of harm according to the norm of ⇒ can. 1548, §2, n. 2 or without danger of violating an obligation to observe secrecy.
§2. Nonetheless, if at least some small part of a document can be transcribed and presented in copy without the above-mentioned disadvantages, the judge can decree that it be produced.
WITNESSES AND TESTIMONIES
Can. 1547 Proof by means of witnesses is allowed under the direction of the judge in cases of any kind.
Can. 1548 §1. When the judge questions witnesses legitimately, they must tell the truth.
§2. Without prejudice to the prescript of ⇒ can. 1550, §2, n. 2, the following are exempted from the obligation to respond:
1/ clerics regarding what has been made known to them by reason of sacred ministry; civil officials, physicians, midwives, advocates, notaries, and others bound by professional secrecy even by reason of having given advice, regarding those matters subject to this secrecy;
2/ those who fear that from their own testimony ill repute, dangerous hardships, or other grave evils will befall them, their spouses, or persons related to them by consanguinity or affinity.
THOSE WHO CAN BE WITNESSES
Can. 1549 All persons can be witnesses unless the law expressly excludes them in whole or in part.
Can. 1550 §1. Minors below the fourteenth year of age and those of limited mental capacity are not allowed to give testimony; they can, however, be heard by a decree of the judge which declares such a hearing expedient.
§2. The following are considered incapable:
1/ the parties in the case or those who stand for the parties at the trial, the judge and the judge’s assistants, the advocate, and others who assist or have assisted the parties in the same case;
2/ priests regarding all matters which they have come to know from sacramental confession even if the penitent seeks their disclosure; moreover, matters heard by anyone and in any way on the occasion of confession cannot be accepted even as an indication of the truth.
THE INTRODUCTION AND EXCLUSION OF WITNESSES
Can. 1551 The party who has introduced a witness can renounce the examination of that witness; the opposing party, however, can request that the witness be examined nevertheless.
Can. 1552 §1. When proof through witnesses is requested, their names and domicile are to be communicated to the tribunal.
§2. The items of discussion about which questioning of the witnesses is sought are to be presented within the time period set by the judge; otherwise, the request is to be considered as abandoned.
Can. 1553 It is for the judge to curb an excessive number of witnesses.
Can. 1554 Before the witnesses are examined, their names are to be communicated to the parties; if in the prudent judgment of the judge, however, that cannot be done without grave difficulty, it is to be done at least before the publication of the testimonies.
Can. 1555 Without prejudice to the prescript of ⇒ can. 1550, a party can request the exclusion of a witness if a just cause for the exclusion is shown before the questioning of the witness.
Can. 1556 The citation of a witness occurs through a decree of the judge legitimately communicated to the witness.
Can. 1557 A witness who has been cited properly is to appear or to inform the judge of the reason for the absence.
THE EXAMINATION OF WITNESSES
Can. 1558 §1. Witnesses must be examined at the tribunal unless the judge deems otherwise.
§2. Cardinals, patriarchs, bishops, and those who possess a similar favor by civil law are to be heard in the place they select.
§3. The judge is to decide where to hear those for whom it is impossible or difficult to come to the tribunal because of distance, sickness, or some impediment, without prejudice to the prescripts of cann. ⇒ 1418 and ⇒ 1469, §2.
Can. 1559 The parties cannot be present at the examination of the witnesses unless the judge has decided to admit them, especially when the matter concerns a private good. Their advocates or procurators, however, can be present unless the judge has decided that the examination must proceed in secret due to the circumstances of the matters and persons.
Can. 1560 §1. Each witness must be examined separately.
§2. If witnesses disagree among themselves or with a party in a grave matter, the judge, after having removed discord and scandal insofar as possible, can have those who disagree meet together or confront one another.
Can. 1561 The judge, the judge’s delegate, or an auditor examines the witness; the examiner must have the assistance of a notary. Consequently, if the parties, the promoter of justice, the defender of the bond, or the advocates present at the examination have any questions to be put to the witness, they are to propose them not to the witness but to the judge or the one who takes the place of the judge, who is to ask the questions, unless particular law provides otherwise.
Can. 1562 §1. The judge is to call to the attention of the witness the grave obligation to speak the whole truth and only the truth.
§2. The judge is to administer an oath to the witness according to ⇒ can. 1532; a witness who refuses to take it, however, is to be heard without the oath.
Can. 1563 The judge is first of all to establish the identity of the witness, then ask what relationship the witness has with the parties, and, when addressing specific questions to the witness concerning the case, also inquire about the sources of his or her knowledge and the precise time when the witness learned what he or she asserts.
Can. 1564 The questions are to be brief, accommodated to the mental capacity of the person being questioned, not comprised of several points at the same time, not deceitful or deceptive or suggestive of a response, free from any kind of offense, and pertinent to the case being tried.
Can. 1565 §1. Questions must not be communicated to the witnesses beforehand.
§2. Nonetheless, if the matters about which testimony must be given are so remote to memory that they cannot be affirmed with certainty unless previously recalled, the judge can advise the witness beforehand on some matters if the judge thinks this can be done without danger.
Can. 1566 Witnesses are to give testimony orally and are not to read written materials unless they are computations and accounts; in this case, they can consult the notes which they brought with them.
Can. 1567 §1. The notary is to write down the response immediately and must report the exact words of the testimony given, at least in what pertains to those points which touch directly upon the material of the trial.
§2. The use of a tape recorder can be allowed, provided that the responses are afterwards transcribed and, if possible, signed by the deponents.
Can. 1568 The notary is to make mention in the acts of whether the oath was taken, excused, or refused, of the presence of the parties and other persons, of the questions added ex officio, and in general of everything worth remembering which may have occurred while the witnesses were being examined.
Can. 1569 §1. At the end of the examination, what the notary has written down from the deposition must be read to the witness, or what has been recorded with the tape recorder during the deposition must be played, giving the witness the opportunity to add, suppress, correct, or change it.
§2. Finally, the witness, the judge, and the notary must sign the acts.
Can. 1570 Although already examined, witnesses can be recalled for examination before the acts or testimonies are published, either at the request of a party or ex officio, if the judge decides it is necessary or useful, provided that there is no danger of collusion or corruption.
Can. 1571 Both the expenses which the witnesses incurred and the income which they lost by giving testimony must be reimbursed to them according to the just assessment of the judge.
THE TRUSTWORTHINESS OF TESTIMONIES
Can. 1572 In evaluating testimony, the judge, after having requested testimonial letters if necessary, is to consider the following:
1/ what the condition or reputation of the person is;
2/ whether the testimony derives from personal knowledge, especially from what has been seen or heard personally, or whether from opinion, rumor, or hearsay;
3/ whether the witness is reliable and firmly consistent or inconsistent, uncertain, or vacillating;
4/ whether the witness has co-witnesses to the testimony or is supported or not by other elements of proof.
Can. 1573 The testimony of one witness cannot produce full proof unless it concerns a qualified witness making a deposition concerning matters done ex officio, or unless the circumstances of things and persons suggest otherwise.
Can. 1574 The assistance of experts must be used whenever the prescript of a law or of the judge requires their examination and opinion based on the precepts of art or science in order to establish some fact or to discern the true nature of some matter.
Can. 1575 After having heard the parties and their suggestions, it is for the judge to appoint the experts or, if the case warrants, to accept reports already drawn up by other experts.
Can. 1576 Experts are excluded or can be objected to for the same reasons as a witness.
Can. 1577 §1. Attentive to what the litigants may bring forward, the judge is to determine in a decree the individual items upon which the services of the expert must focus.
§2. The acts of the case and other documents and aids which the expert can need to fulfill his or her function correctly and faithfully must be turned over to the expert.
§3. After having heard the expert, the judge is to determine the time within which the expert must complete the examination and produce the report.
Can. 1578 §1. Each of the experts is to prepare a report separate from the others unless the judge decrees that one report signed by the experts individually be drawn up; if this is done, differences of opinion, if there are any, are to be noted carefully.
§2. Experts must indicate clearly by what documents or other suitable means they gained certainty of the identity of the persons, things, or places, by what manner and method they proceeded in fulfilling the function entrusted to them, and above all on which arguments they based their conclusions.
§3. The judge can summon the expert to supply explanations which later seem necessary.
Can. 1579 §1. The judge is to weigh carefully not only the conclusions of the experts, even if they are in agreement, but also the other circumstances of the case.
§2. When giving reasons for the decision, the judge must express what considerations prompted him or her to accept or reject the conclusions of the experts.
Can. 1580 The judge must justly and equitably determine the expenses and fees to be paid to the experts, with due regard for particular law.
Can. 1581 §1. The parties can designate private experts whom the judge must approve.
§2. If the judge allows them, the private experts can inspect the acts of the case insofar as necessary and attend the presentation of the expert testimony; moreover, they can always present their own report.
JUDICIAL EXAMINATION AND INSPECTION
Can. 1582 If, in order to decide a case, the judge considers it opportune to visit some place or to inspect some thing, the judge, after having heard the parties, is to order it by a decree describing in summary fashion those things which must be exhibited during the visit or inspection.
Can. 1583 When the visit or inspection has been completed, a report about it is to be drafted.
Can. 1584 A presumption is a probable conjecture about an uncertain matter; a presumption of law is one which the law itself establishes; a human presumption is one which a judge formulates.
Can. 1585 A person who has a favorable presumption of law is freed from the burden of proof, which then falls to the other party.
Can. 1586 The judge is not to formulate presumptions which are not established by law unless they are directly based on a certain and determined fact connected with the matter in dispute.
INCIDENTAL CASES (Cann. 1587 - 1597)
Can. 1587 An incidental case arises whenever, after the trial has begun through the citation, a question is proposed which nevertheless pertains to the case in such a way that it frequently must be resolved before the principal question, even if it was not expressly contained in the libellus which introduced the litigation.
Can. 1588 An incidental case is proposed in writing or orally before the judge competent to decide the principal case, indicating the connection between this and the principal case.
Can. 1589 §1. After having received the petition and heard the parties, the judge is to decide as promptly as possible (expeditissime) whether the proposed incidental question seems to have a foundation and a connection with the principal trial or rather must be rejected at the outset. If the judge admits the incidental question, the judge is to decide whether it is of such gravity that it must be resolved by an interlocutory sentence or by a decree.
§2. If the judge decides not to resolve the incidental question before the definitive sentence, however, the judge is to decree that the question will be considered when the principal case is decided.
Can. 1590 §1. If the incidental question must be resolved by sentence, the norms for the oral contentious process are to be observed unless the judge decides otherwise due to the gravity of the matter.
§2. If the matter must be resolved by decree, however, the tribunal can entrust the matter to an auditor or the presiding judge.
Can. 1591 Before the principal case is completed, the judge or the tribunal can revoke or reform the decree or interlocutory sentence for a just reason either at the request of a party or ex officio after the parties have been heard.
PARTIES WHO DO NOT APPEAR
Can. 1592 §1. If the cited respondent has neither appeared nor given a suitable excuse for being absent or has not responded according to the norm of ⇒ can. 1507, §1, the judge, having observed what is required, is to declare the respondent absent from the trial and decree that the case is to proceed to the definitive sentence and its execution.
§2. Before issuing the decree mentioned in §1, the judge must be certain that a legitimately executed citation has reached the respondent within the useful time, even by issuing a new citation if necessary.
Can. 1593 §1. If the respondent appears at the trial later or responds before a decision in the case, the respondent can offer conclusions and proofs, without prejudice to the prescript of ⇒ can. 1600; the judge, however, is to take care that the trial is not prolonged intentionally through longer and unnecessary delays.
§2. Even if the respondent did not appear or respond before a decision in the case, the respondent can use challenges against the sentence; if the respondent proves that there was a legitimate impediment for being detained and there was no personal fault in its not being made known beforehand, the respondent can use a complaint of nullity.
Can. 1594 If the petitioner has not appeared on the day and at the hour prescribed for the joinder of the issue and has not offered a suitable excuse:
1/ the judge is to cite the petitioner again;
2/ if the petitioner does not comply with the new citation, the petitioner is presumed to have renounced the trial according to the norm of cann. ⇒ 1524-1525;
3/ if the petitioner later wishes to intervene in the process, ⇒ can. 1593 is to be observed.
Can. 1595 §1. A petitioner or respondent who is absent from the trial and has not given proof of a just impediment is obliged both to pay the expenses of the litigation which have accrued because of the absence and to indemnify the other party if necessary.
§2. If both the petitioner and the respondent were absent from the trial, they are obliged in solidum to pay the expenses of the litigation.
THE INTERVENTION OF A THIRD PERSON IN A CASE
Can. 1596 §1. A person who has an interest can be admitted to intervene in a case at any instance of the litigation, either as a party defending a right or in an accessory manner to help a litigant.
§2. To be admitted, the person must present a libellus to the judge before the conclusion of the case; in the libellus the person briefly is to demonstrate his or her right to intervene.
§3. A person who intervenes in a case must be admitted at that stage which the case has reached, with a brief and peremptory period of time assigned to the person to present proofs if the case has reached the probatory period.
Can. 1597 After having heard the parties, the judge must summon to the trial a third person whose intervention seems necessary.
THE PUBLICATION OF THE ACTS, THE CONCLUSION OF THE CASE, AND THE DISCUSSION OF THE CASE (Cann. 1598 - 1606)
Can. 1598 §1. After the proofs have been collected, the judge by a decree must permit the parties and their advocates, under penalty of nullity, to inspect at the tribunal chancery the acts not yet known to them; furthermore, a copy of the acts can also be given to advocates who request one. In cases pertaining to the public good to avoid a most grave danger the judge can decree that a specific act must be shown to no one; the judge is to take care, however, that the right of defense always remains intact.
§2. To complete the proofs, the parties can propose additional proofs to the judge. When these proofs have been collected, it is again an occasion for the decree mentioned in §1 if the judge thinks it necessary.
Can. 1599 §1. When everything pertaining to the production of proofs has been completed, the conclusion of the case is reached.
§2. This conclusion occurs whenever the parties declare that they have nothing else to add, the useful time prescribed by the judge to propose proofs has elapsed, or the judge declares that the case is instructed sufficiently.
§3. The judge is to issue a decree that the case has reached its conclusion, in whatever manner it has occurred.
Can. 1600 §1. After the conclusion of the case, the judge can still summon the same or other witnesses or arrange for other proofs which were not requested earlier, only:
1/ in cases which concern the private good of the parties alone, if all the parties consent;
2/ in other cases, after the parties have been heard and provided that there is a grave reason and any danger of fraud or subornation is eliminated;
3/ in all cases whenever it is likely that the sentence will be unjust because of the reasons mentioned in ⇒ can. 1645, §2, nn. 1-3 unless the new proof is allowed.
§2. The judge, moreover, can order or allow a document to be shown, which may have been unable to be shown earlier through no negligence of the interested person.
§3. New proofs are to be published according to ⇒ can. 1598, §1.
Can. 1601 After the conclusion of the case, the judge is to determine a suitable period of time to present defense briefs or observations.
Can. 1602 §1. The defense briefs and the observations are to be written unless the judge, with the consent of the parties, considers a debate before a session of the tribunal to be sufficient.
§2. To print the defense briefs along with the principal documents requires the previous permission of the judge, without prejudice to the obligation of secrecy, if such exists.
§3. The regulations of the tribunal are to be observed regarding the length of the defense briefs, the number of copies, and other matters of this kind.
Can. 1603 §1. When the defense briefs and observations have been communicated to each party, either party is permitted to present responses within the brief time period established by the judge.
§2. The parties are given this right only once unless the judge decides that it must be granted a second time for a grave cause; then, however, the grant made to one party is considered as given to the other also.
§3. The promoter of justice and the defender of the bond have the right to reply a second time to the responses of the parties.
Can. 1604 §1. It is absolutely forbidden for information given to the judge by the parties, advocates, or even other persons to remain outside the acts of the case.
§2. If the discussion of the case has been done in writing, the judge can order a moderate oral debate to be held before a session of the tribunal in order to explain certain questions.
Can. 1605 A notary is to be present at the oral debate mentioned in cann. ⇒ 1602, §1 and ⇒ 1604, §2 so that, if the judge orders it or a party requests it and the judge consents, the notary can immediately report in writing about what was discussed and concluded.
Can. 1606 If the parties have neglected to prepare a defense brief within the time available to them or have entrusted themselves to the knowledge and conscience of the judge, and if from the acts and proofs the judge considers the matter fully examined, the judge can pronounce the sentence immediately, after having requested the observations of the promoter of justice and the defender of the bond if they are involved in the trial.
THE PRONOUNCEMENTS OF THE JUDGE (Cann. 1607 - 1618)
Can. 1607 When a case has been handled in a judicial manner, if it is the principal case, the judge decides it through the definitive sentence; if an incidental case, through an interlocutory sentence, without prejudice to the prescript of ⇒ can. 1589, §1.
Can. 1608 §1. For the pronouncement of any sentence, the judge must have moral certitude about the matter to be decided by the sentence.
§2. The judge must derive this certitude from the acts and the proofs.
§3. The judge, however, must appraise the proofs according to the judge’s own conscience, without prejudice to the prescripts of law concerning the efficacy of certain proofs.
§4. A judge who was not able to arrive at this certitude is to pronounce that the right of the petitioner is not established and is to dismiss the respondent as absolved, unless it concerns a case which has the favor of law, in which case the judge must pronounce for that.
Can. 1609 §1. In a collegiate tribunal the president of the college is to establish the date and time when the judges are to convene for deliberation; unless a special reason suggests otherwise, the meeting is to be held at the tribunal office.
§2. On the date assigned for the meeting, the individual judges are to submit their written conclusions on the merit of the case with the reasons in law and in fact which led them to their conclusions; these conclusions are to be added to the acts of the case and must be kept secret.
§3. After the invocation of the Divine Name, the individual judges are to present their conclusions in order of precedence, always beginning, however, with the ponens or relator of the case. A discussion then follows under the leadership of the tribunal president, especially to determine what must be established in the dispositive part of the sentence.
§4. In the discussion each judge is permitted to withdraw from his or her original conclusion. The judge who is unwilling to assent to the decision of the others, however, can demand that his or her conclusions be transmitted to the higher tribunal if an appeal is made.
§5. If the judges are unwilling or unable to arrive at a sentence during the first discussion, the decision can be deferred to a new meeting, but not for more than a week, unless the instruction of the case must be completed according to the norm of ⇒ can. 1600.
Can. 1610 §1. If there is only one judge, he will write the sentence himself.
§2. In a collegiate tribunal, it is for the ponens or relator to write the sentence, selecting the reasons from those the individual judges brought forth during the discussion, unless a majority of the judges have already determined the reasons to be presented. The sentence must then be submitted for the approval of the individual judges.
§3. The sentence must be issued no more than a month from the day on which the case was decided unless in a collegiate tribunal the judges set a longer period for a grave reason.
Can. 1611 The sentence must:
1/ decide the controversy deliberated before the tribunal with an appropriate response given to the individual doubts;
2/ determine what obligations have arisen for the parties from the trial and how they must be fulfilled;
3/ set forth the reasons or motives in law and in fact on which the dispositive part of the sentence is based;
4/ determine the expenses of the litigation.
Can. 1612 §1. After the invocation of the Divine Name, the sentence must express in order the judge or the tribunal, the petitioner, the respondent, and the procurator, with their names and domiciles correctly designated, and the promoter of justice and defender of the bond if they took part in the trial.
§2. Next, it must briefly relate the facts together with the conclusions of the parties and the formula of the doubts.
§3. The dispositive part of the sentence follows the above, preceded by the reasons on which it is based.
§4. It is to conclude with the indication of the date and the place where it was rendered, with the signature of the judge or, if it is a collegiate tribunal, of all the judges, and the notary.
Can. 1613 The rules proposed above for a definitive sentence are to be adapted for an interlocutory sentence.
Can. 1614 The sentence is to be published as soon as possible, with an indication of the means by which it can be challenged. It has no force before publication even if the dispositive part was made known to the parties with the permission of the judge.
Can. 1615 Publication or communication of the sentence can be done either by giving a copy of the sentence to the parties or their procurators or by sending them a copy according to the norm of ⇒ can. 1509.
Can. 1616 §1. If in the text of the sentence an error in calculations turns up, a material error occurs in transcribing the dispositive section or in relating the facts or the petitions of the parties, or the requirements of ⇒ can. 1612, §4 are omitted, the tribunal which rendered the sentence must correct or complete it either at the request of a party or ex officio, but always after the parties have been heard and a decree appended to the bottom of the sentence.
§2. If any party objects, the incidental question is to be decided by a decree.
Can. 1617 Other pronouncements of the judge besides the sentence are decrees, which have no force if they are not merely procedural unless they express the reasons at least in a summary fashion or refer to reasons expressed in another act.
Can. 1618 An interlocutory sentence or a decree has the force of a definitive sentence if it prevents a trial or puts an end to a trial or some grade of a trial with respect to at least some party in the case.
CHALLENGE OF THE SENTENCE (Cann. 1619 - 1640)
COMPLAINT OF NULLITY AGAINST THE SENTENCE
Can. 1619 Without prejudice to cann. ⇒ 1622 and ⇒ 1623, whenever a case involves the good of private persons, the sentence itself sanates the nullities of acts established by positive law which were not declared to the judge before the sentence even though they were known to the party proposing the complaint.
Can. 1620 A sentence suffers from the defect of irremediable nullity if:
1/ it was rendered by an absolutely incompetent judge;
2/ it was rendered by a person who lacks the power of judging in the tribunal in which the case was decided;
3/ a judge rendered a sentence coerced by force or grave fear;
4/ the trial took place without the judicial petition mentioned in ⇒ can. 1501 or was not instituted against some respondent;
5/ it was rendered between parties, at least one of whom did not have standing in the trial;
6/ someone acted in the name of another without a legitimate mandate;
7/ the right of defense was denied to one or the other party;
8/ it did not decide the controversy even partially.
Can. 1621 The complaint of nullity mentioned in ⇒ can. 1620 can be proposed by way of exception in perpetuity and also by way of action before the judge who rendered the sentence within ten years from the date of the publication of the sentence.
Can. 1622 A sentence suffers from the defect of remediable nullity only if:
1/ it was rendered by an illegitimate number of judges contrary to the prescript of ⇒ can. 1425, §1;
2/ it does not contain the motives or reasons for the decision;
3/ it lacks the signatures prescribed by law;
4/ it does not indicate the year, month, day, and place in which it was rendered;
5/ it is based on a null judicial act whose nullity was not sanated according to the norm of ⇒ can. 1619;
6/ it was rendered against a party legitimately absent according to ⇒ can. 1593, §2.
Can. 1623 A complaint of nullity in the cases mentioned in ⇒ can. 1622 can be proposed within three months from the notice of the publication of the sentence.
Can. 1624 The judge who rendered the sentence deals with the complaint of nullity. If the party fears that the judge who rendered the sentence challenged by the complaint of nullity is prejudiced and therefore considers the judge suspect, the party can demand that another judge be substituted according to the norm of ⇒ can. 1450.
Can. 1625 A complaint of nullity can be proposed together with an appeal within the time established for an appeal.
Can. 1626 §1. Not only the parties who consider themselves aggrieved can introduce a complaint of nullity but also the promoter of justice and the defender of the bond whenever they have the right to intervene.
§2. The judge can retract or emend ex officio a null sentence, which that judge has rendered, within the time limit for acting established by ⇒ can. 1623 unless an appeal together with a complaint of nullity has been introduced in the meantime or the nullity has been sanated through the expiration of the time limit mentioned in ⇒ can. 1623.
Can. 1627 Cases concerning a complaint of nullity can be treated according to the norms for the oral contentious process.
Can. 1628 A party who considers himself or herself aggrieved by any sentence as well as the promoter of justice and the defender of the bond in cases which require their presence have the right to appeal the sentence to a higher judge, without prejudice to the prescript of ⇒ can. 1629.
Can. 1629 There is no appeal:
1/ from a sentence of the Supreme Pontiff himself or the Apostolic Signatura;
2/ from a sentence tainted by a defect of nullity, unless the appeal is joined with a complaint of nullity according to the norm of ⇒ can. 1625;
3/ from a sentence which has become a res iudicata;
4/ from a decree of a judge or from an interlocutory sentence which does not have the force of a definitive sentence, unless it is joined with an appeal from a definitive sentence;
5/ from a sentence or a decree in a case where the law requires the matter to be decided as promptly as possible (expeditissime).
Can. 1630 §1. An appeal must be introduced before the judge who rendered the sentence within the peremptory period of fifteen useful days from the notice of the publication of the sentence.
§2. If an appeal is made orally, the notary is to put it in writing in the presence of the appellant.
Can. 1631 If a question arises about the right to appeal, the appellate tribunal deals with it as promptly as possible (expeditissime) according to the norms of the oral contentious process.
Can. 1632 §1. If the appeal does not indicate the tribunal to which it is directed, it is presumed to be made to the tribunal mentioned in cann. ⇒ 1438 and ⇒ 1439.
§2. If the other party has appealed to another appellate tribunal, the tribunal of higher grade deals with the case, without prejudice to ⇒ can. 1415.
Can. 1633 An appeal must be pursued before the appellate judge within a month from its introduction unless the judge from whom appeal is made has established a longer period for a party to pursue it.
Can. 1634 §1. To pursue an appeal it is required and suffices that a party calls upon the services of a higher judge for an emendation of the challenged sentence, attaches a copy of this sentence, and indicates the reasons for the appeal.
§2. If a party cannot obtain a copy of the challenged sentence from the tribunal from which appeal is made within the useful time, the time limits do not run in the meantime; the impediment must be made known to the appellate judge who is to bind the judge from whom appeal is made by a precept to fulfill that judge’s duty as soon as possible.
§3. Meanwhile the judge from whom appeal is made must transmit the acts to the appellate judge according to the norm of ⇒ can. 1474.
Can. 1635 Once the deadline for appeal has passed without action either before the judge from whom the appeal is made or before the appellate judge, the appeal is considered abandoned.
Can. 1636 §1. The appellant can renounce the appeal with the effects mentioned in ⇒ can. 1525.
§2. If the defender of the bond or the promoter of justice has introduced the appeal, the defender of the bond or the promoter of justice of the appellate tribunal can renounce it, unless the law provides otherwise.
Can. 1637 §1. An appeal made by the petitioner also benefits the respondent and vice versa.
§2. If there are several respondents or petitioners and the sentence is challenged by only one or against only one of them, the challenge is considered to be made by all of them and against all of them whenever the matter sought is indivisible or a joint obligation.
§3. If one party introduces an appeal against one ground of the sentence, the other party can appeal incidentally against other grounds within the peremptory period of fifteen days from the day on which the original appeal was made known to the latter, even if the deadline for an appeal has passed.
§4. Unless it is otherwise evident, an appeal is presumed to be made against all the grounds of a sentence.
Can. 1638 An appeal suspends the execution of the sentence.
Can. 1639 §1. Without prejudice to the prescript of ⇒ can. 1683, a new cause for petitioning cannot be admitted at the appellate grade, not even by way of useful accumulation; consequently, the joinder of the issue can only address whether the prior sentence is to be con-firmed or revised either totally or partially.
§2. New proofs, however, are admitted only according to the norm of ⇒ can. 1600.
Can. 1640 The appellate grade must proceed in the same manner as first instance with appropriate adjustments; immediately after the issue has been joined according to the norm of ⇒ can. 1513, §1 and ⇒ can. 1639, §1 and unless the proofs possibly must be completed, the discussion of the case is to take place and the sentence rendered.
RES IUDICATA AND RESTITUTIO IN INTEGRUM (Cann. 1641 - 1648)
Can. 1641 Without prejudice to the prescript of ⇒ can. 1643, a res iudicata occurs:
1/ if a second concordant sentence is rendered between the same parties over the same issue and on the same cause for petitioning;
2/ if an appeal against the sentence has not been introduced within the useful time;
3/ if at the appellate grade, the trial has been abated or renounced;
4/ if a definitive sentence has been rendered from which there is no appeal according to the norm of ⇒ can. 1629.
Can. 1642 §1. A res iudicata possesses the stability of law and cannot be challenged directly except according to the norm of ⇒ can. 1645, §1.
§2. It establishes the rights between the parties and permits an action for execution and an exception of res iudicata which the judge can also declare ex officio in order to prevent a new introduction of the same case.
Can. 1643 Cases concerning the status of persons, including cases concerning the separation of spouses, never become res iudicata.
Can. 1644 §1. If a second concordant sentence has been rendered in a case concerning the status of persons, recourse can be made at any time to the appellate tribunal if new and grave proofs or arguments are brought forward within the peremptory time limit of thirty days from the proposed challenge. Within a month from when the new proofs and arguments are brought forward, however, the appellate tribunal must establish by decree whether a new presentation of the case must be admitted or not.
§2. Recourse to a higher tribunal in order to obtain a new presentation of the case does not suspend the execution of the sentence unless either the law provides otherwise or the appellate tribunal orders its suspension according to the norm of ⇒ can. 1650, §3.
RESTITUTIO IN INTEGRUM
Can. 1645 §1. Restitutio in integrum is granted against a sentence which has become res iudicata provided that its injustice is clearly established.
§2. Injustice, however, is not considered to be established clearly unless:
1/ the sentence is based on proofs which afterwards are discovered to be false in such a way that without those proofs the dispositive part of the sentence is not sustained;
2/ documents have been revealed afterwards which undoubtedly prove new facts and demand a contrary decision;
3/ the sentence was rendered due to the malice of one party resulting in harm to the other party;
4/ a prescript of the law which is not merely procedural was clearly neglected;
5/ the sentence is contrary to a previous decision which has become res iudicata.
Can. 1646 §1. Restitutio in integrum for the reasons mentioned in ⇒ can. 1645, §2, nn. 1-3 must be sought from the judge who rendered the sentence within three months computed from the day the person became aware of these same reasons.
§2. Restitutio in integrum for the reasons mentioned in ⇒ can. 1645 §2, nn. 4 and 5 must be sought from the appellate tribunal within three months from the notice of the publication of the sentence; if in the case mentioned in ⇒ can. 1645, §2, n. 5 notice of the previous decision occurs later, however, the time limit runs from this notice.
§3. The time limits mentioned above do not run as long as the injured person is a minor.
Can. 1647 §1. The petition for restitutio in integrum suspends the execution of a sentence if execution has not yet begun.
§2. If from probable indications there is a suspicion that a petition has been made in order to delay the execution, however, the judge can decree execution of the sentence, though with suitable guarantees to the one seeking the restitutio that there will be indemnity if the restitutio in integrum is granted.
Can. 1648 If restitutio in integrum is granted, the judge must pronounce on the merits of the case.
JUDICIAL EXPENSES AND GRATUITOUS LEGAL ASSISTANCE (Can. 1649)
Can. 1649 §1. The bishop who directs the tribunal is to establish norms concerning:
1/ the requirement of the parties to pay or compensate judicial expenses;
2/ the fees for the procurators, advocates, experts, and interpreters and the indemnity for the witnesses;
3/ the grant of gratuitous legal assistance or reduction of the expenses;
4/ the recovery of damages owed by a person who not only lost the trial but also entered into the litigation rashly;
5/ the deposit of money or the provision furnished for the payment of expenses and recovery of damages.
§2. There is no separate appeal from the determination of expenses, fees, and recovery of damages, but the party can make recourse within fifteen days to the same judge who can adjust the assessment.
THE EXECUTION OF THE SENTENCE (Cann. 1650 - 1655)
Can. 1650 §1. A sentence that has become a res iudicata can be executed, without prejudice to the prescript of ⇒ can.
§2. The judge who rendered the sentence and, if an appeal has been proposed, also the appellate judge can order ex officio or at the request of a party a provisional execution of a sentence which has not yet become res iudicata, after having set suitable guarantees, if the case warrants, for provisions or payments ordered for necessary support; they can also do so if some other just cause urges it.
§3. If the sentence mentioned in §2 is challenged, the judge who must investigate the challenge can suspend the execution or subject it to a guarantee if the judge sees that the challenge is probably well founded and irreparable damage can arise from execution.
Can. 1651 Execution cannot occur prior to the executory decree of the judge which declares that the sentence must be executed. This decree is to be included in the text of the sentence or issued separately according to the particular nature of the cases.
Can. 1652 If the execution of a sentence requires a prior rendering of accounts, it is an incidental question which the same judge who rendered the sentence ordering the execution must decide.
Can. 1653 §1. Unless particular law establishes otherwise, the bishop of the diocese in which the sentence was rendered in the first grade must execute the sentence personally or through another.
§2. If he refuses or neglects to do this, the execution of the sentence, either at the request of an interested party or even ex officio, pertains to the authority to whom the appellate tribunal is subject according to the norm of ⇒ can. 1439, §3.
§3. Among religious the execution of the sentence pertains to the superior who rendered the sentence to be executed or the superior who delegated the judge.
Can. 1654 §1. Unless the text of the sentence leaves it to the judgment of the executor, the executor must execute the sentence according to the obvious sense of the words.
§2. The executor is permitted to deal with exceptions concerning the manner and force of the execution but not concerning the merit of the case. If it is discovered from another source that the sentence is null or manifestly unjust according to the norm of cann. ⇒ 1620, ⇒ 1622, and ⇒ 1645, the executor is to refrain from executing it and, after having informed the parties, is to refer the matter to the tribunal which rendered the sentence.
Can. 1655 §1. In real actions, whenever the petitioner is awarded something, it must be handed over to the petitioner as soon as there is a res iudicata.
§2. In personal actions, when the guilty party is condemned to furnish a movable thing, to pay money, or to give or do something else, the judge in the text of the sentence or the executor according to his or her judgment and prudence is to establish a time limit to fulfill the obligation; this time limit, however, is not to be less than fifteen days nor more than six months.
THE ORAL CONTENTIOUS PROCESS (Cann. 1656 - 1670)
Can. 1656 §1. All cases not excluded by law can be treated in the oral contentious process mentioned in this section unless a party requests the ordinary contentious process.
§2. If the oral process is used outside of the cases permitted in law, the judicial acts are null.
Can. 1657 The oral contentious process takes place in the first grade before a single judge according to the norm of ⇒ can. 1424.
Can. 1658 §1. In addition to the things enumerated in ⇒ can. 1504, the libellus which introduces the litigation must:
1/ set forth briefly, completely, and clearly the facts on which the requests of the petitioner are based;
2/ indicate the proofs by which the petitioner intends to demonstrate the facts but which cannot be presented at once, in such a way that the judge can collect them immediately.
§2. The documents on which the petition is based must be attached to the libellus, at least in an authentic copy.
Can. 1659 §1. If the attempt at reconciliation according to the norm of ⇒ can. 1446, §2 proved useless and the judge thinks that the libellus has some foundation, the judge is to order within three days by a decree appended to the bottom of the libellus that a copy of the petition be communicated to the respondent, giving to the latter the opportunity to send a written response to the tribunal chancery within fifteen days.
§2. This notification has the effect of the judicial citation mentioned in ⇒ can. 1512.
Can. 1660 If the exceptions of the respondent demand it, the judge is to establish a time limit for the petitioner to respond, in such a way that from the points brought forth by both of the parties the judge clarifies the object of the controversy.
Can. 1661 §1. When the time limits mentioned in cann. ⇒ 1659 and ⇒ 1660 have elapsed, the judge, after an examination of the acts, is to determine the formula of the doubt. Next, the judge is to cite all those who must take part to a hearing which must be held within thirty days; the formula of the doubt is to be attached to the citation of the parties.
§2. In the citation the parties are to be informed that they can present a brief written statement to the tribunal to verify their claims at least three days before the hearing.
Can. 1662 At the hearing the questions mentioned in ⇒ cann. 1459-1464 are treated first.
Can. 1663 §1. The proofs are collected at the hearing without prejudice to the prescript of ⇒ can. 1418.
§2. A party and his or her advocate can be present at the examination of the other parties, the witnesses, and the experts.
Can. 1664 The notary must put into writing the responses of the parties, the witnesses, and the experts and the petitions and exceptions of the advocates, but in a summary fashion and only in those matters pertaining to the substance of the dispute; the deponents must sign these acts.
Can. 1665 The judge can admit proofs which are not brought forth or sought in the petition or response only according to the norm of ⇒ can. 1452. After even one witness has been heard, however, the judge can only decide about new proofs according to the norm of ⇒ can. 1600.
Can. 1666 If all the proofs were not able to be collected during the hearing, a second hearing is to be scheduled.
Can. 1667 When the proofs have been collected, the oral discussion takes place at the same hearing.
Can. 1668 §1. Unless the discussion reveals that something must be supplied in the instruction of the case or something else turns up which prevents a proper pronouncement of the sentence, at the completion of the hearing the judge in private is to decide the case immediately; the dispositive part of the sentence is to be read at once before the parties who are present.
§2. The tribunal can defer the decision up to the fifth useful day because of the difficulty of the matter or for some other just cause.
§3. The complete text of the sentence with the reasons expressed is to be communicated to the parties as soon as possible, ordinarily in not more than fifteen days.
Can. 1669 If the appellate tribunal discovers that the oral contentious process was used at a lower grade of a trial in cases excluded by law, it is to declare the nullity of the sentence and remit the case to the tribunal which rendered the sentence.
Can. 1670 In other matters pertaining to the manner of proceeding, the prescripts of the canons for the ordinary contentious trial are to be observed. In order to expedite matters without prejudice to justice, however, the tribunal, by a decree expressing the reasons for its decision, can derogate from procedural norms which have not been established for validity.