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  • Estudio Alvarez Calderón


The Judiciary has established 12 rules with a binding judicial precedent character in accordance with the provisions of article 400 of the Civil Procedure Code for relevant problems related to the scope, procedure and criteria for the proper exercise of the ex officio test and its evidentiary assessment. Likewise, in accordance with the provisions of article 400 of the Civil Procedure Code, they declared that the following rules constitute the binding judicial precedent:

First rule: Article 194 of the Civil Procedure Code contains a legal statement that confers on the judge a probative power as an exceptional power and not an obligation; This legal provision enables the judge to carry out an ex officio test, when the case warrants it, respecting the limits imposed by the legislator.

Second rule: The judge will fix the controversial points with precision and exhaustiveness. Which should not be a mere description of the procedural claims postulated in the process.

Third rule: The judge of first or second instance, in the exercise and processing of the ex officio test, must comply with the following limits:

a) exceptionality;

b) relevance;

c) sources of evidence;

d) motivation;

e) contradictory;

f) not supplying the parties; and,

g) in a single opportunity ”.

Fourth rule: The contradictory in the ex officio test can be prior or deferred and is exercised by the parties orally or in writing, depending on the nature of the process.

Fifth rule: In the first instance, if the process is written, the judge may use the ex officio evidence at the end of the admitted evidence, exceptionally before the sentence; in processes subject to oral procedure, it will be done at the preliminary hearing, exceptionally at the hearing of evidence.

Sixth rule: When the evidence is untimely or was not admitted due to default, the judge of first or second instance must analyze its relevance and relevance, and evaluate its informal admission; the same treatment must be given to the means of evidence formally declared inadmissible and no appeal has been made.

Seventh rule: The judge may assess the need to automatically incorporate certified copies, physical or virtual, of the judicial processes or related administrative procedures related to the controversy and with a direct impact on the outcome of the process.

Eighth rule: The Court of Appeals in the resolution that schedules the hearing of the case will indicate the possibility of ex officio evidence, submitting it to the contradictory in the hearing of the cause and making the decision in that act. If the means of proof is deferred action, this will be in charge of the Senior Judge of less seniority.

Ninth rule: When appropriate, the appeal against the resolution that orders ex officio proof will be granted without suspense effect and with deferred quality. In the second instance, the challenge to the ex officio evidence may be alleged as an argument in the appeal, when it is feasible to apply this appeal.

Tenth rule: In processes related to real rights, the judge can use, especially as ex officio evidence:

i) judicial inspection of the property that is the subject of debate;

ii) expert evidence to correctly identify the property, its location, its dimensions, numbering, boundaries, overlaps, among others;

iii) documents consisting of

a) registration item and / or archived title of the asset issued by Public Registries or similar registry;

b) cadastral certificate issued by SUNARP stating that the property is not independently registered or that it belongs to a larger one;

c) full literal copy of the registry entry in case of overlapping registry;

d) any other registry information, notarial or in charge of a public official, that is relevant for the case.

Eleventh rule: In the processes in which claims of a personal nature are processed, in case of insufficient evidence the judge may use as ex officio evidence those that allow him to determine the truth of the facts that are the subject of controversy, the same rule applies for cases in which there is a manifest nullity of the legal business, in accordance with article 220 of the Civil Code.

Twelfth rule: In processes that discuss the rights of people in a condition of vulnerability for reasons of age, gender, disability, belonging to indigenous or minority communities, victims, migrants, people in extreme poverty, deprived of liberty or others, the judge may order the performance of ex officio tests when he notices in the process limitations or obstacles for the full exercise of the rights recognized by the national legal system, international treaties and the Inter-American Human Rights System.

(Source: The Judiciary)

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