Subject: the course will attempt to bring out instances in which the concept of abuse of process, typical of substantive law, can be applied to the field of procedural law. It will try to focus on those instances where there may be an abuse of the rights and powers legally attributed to each person vis-à-vis the legal protection of rights, that is, within the civil process.
In other words, the aim is to assess in which instances the exercise of the right of action or of defense can be construed as an act of abuse, having regard, in essence, to the principles of good faith and of reasonable duration of the trial.
Building on general concepts, a number of specific cases that are actually emerging in case law will then be defined, such as for example the case of the asserted prohibition to pay debt by installments in the lawsuits pertaining to that debt. The modality through which the legal system can respond to the act of abuse will then need to be identified, determining which of the various procedural “penalties” is (or are) the most suitable and legally admissible.
In this context, a moment of reflection will also be dedicated to the legislative action in matters concerning the costs, with particular reference to Art. 96 paragraph 3 of the Italian Code of Penal Procedure and to Art. 13 Legislative Decree No 28/2010.
Objectives: the course aims to provide magistrates with one more instrument capable of simplifying the State judicial machinery, bringing out both the limits within which an abuse of the right of action or defense is applicable and the response that the legal system can give in such cases.
Structure and methodology: one or, at the most, two introductory presentations will be given, after which participants will be assigned to individual work groups in order to conduct, through the workshop method, a number of in-depth analysis of various case studies.
Candidates: civil magistrates of first instance and high court. The course is open to private practice attorneys.