Posted on April 10th 2017
EXCEPTION AND RECONVENTION.
In the exercise of the action by the plaintiff, the defendant has the right, within the term granted by law to answer the application, to oppose any exceptions that he considers pertinent in order to combat the action, and at the same time, to bring a counterclaim (Except in the case of an executive commercial judgment), such counterclaim constitutes in itself a new action, but asserted by the defendant against its original claimant.
The strict sense of litigation as such is that there is a dialectical reason between two parts, from this basic precept is where the exception is derived as a reaction to the action, which is merely the defendant´s resistance to action, Deriva de exceptio That gives origin to the voice exipating, dismemberment or disturbance. Dismemberment of the intentio, that is, try to counteract the intentio material. Turbulence in the sense of disturbing the action before a judge.
The exception is a means of defense, of substance and of form, by which the defendant opposes resistance to the demand, resistance that intends to destroy the march of the action or the action itself. It is the opposition that, without denying the basis of the claim, tries to prevent the continuation of the trial by temporarily paralyzing it or permanently extinguishing it. The exception is a counter-right in the sense that it is a power of annulment against the right.
Most point out that when we seek the essence of the exception we must resort to the nature of action. Initially, the exception was an independent right (Roman law) later considered a specific right (the law corresponds to the defendant) then it is considered an abstract right (right of all citizens) and, finally, it is considered a legal power ( The power of every citizen to go to the court, in this case of the exception, to defend against). Already a sustenance of form as of substance, the action and the exception are necessary elements within the guardianship of the process.
It is important to emphasize that the action and the exception limit the jurisdiction constituting to say it in a way two "borders" to call them thus, in the first place is the objective that refers to the principle of legitimacy mentioned, simply to what expressly a judge has the Faculty to know and to exercise right of that scope; And the subjective, in which the legal status of the actor or party is that which determines the limitation of the jurisdiction itself, making the exception itself a derivative of modern guarantees and principles such as the guarantees of due process, equality of Parties before the law, prescriptions pro reo, indubio pro reo and incompetence and prescription.
There are several classifications of exceptions, for practical purposes we can divide them into:
• Background Exceptions: seeks defects in alleged substantive law.
• Exceptions of form: seeks defects to the way of exercising said substantive right
• Parenting Exceptions: extinguish actor's right or destroy principal action
• Delays: do not destroy action, delay it
• Mixed exceptions: they have the nature of the dilatory exception but their result is of parentorial exception
• Real exception: exercised over objects of an economic nature
• Personal Exception: about a person criminal actions
As for the counterclaim, it consists in the exercise, by the defendant, of a new action against the actor, so that it is substantiated in the same process and it is decided in the same sentence that will resolve the initial demand. It must be asserted in the brief answering the claim and will accommodate to what for the claim is established in the law. The counterclaim must clearly state the specific judicial protection that is sought with respect to the actor and, if applicable, other subjects. In the event of a counterclaim, the primary actor will have the right to respond to the counterclaim by invoking the exceptions that he deems necessary to try to destroy the action set in motion against him.
Horacio López González.
Master in Constitutional Law and Amparo.