DISEÑO E IMPLEMENTACIÓN DEL PROCESO MONITORIO COMO HERRAMIENTA ESENCIAL DE LOS SISTEMAS DE JUSTICIA

Abstract

The order for payment procedure aims at the rapid creation of an enforceable title (also called "enforcement title" in some countries), considering the low probability of opposition by the defendant. To this end, the plaintiff's claim (or the defendant's performance of his obligation is ordered, depending on the system) is initially decided upon and the defendant is then given the opportunity to object. If the defendant does not object, the initial decision can be enforced (enforcement order). If the defendant objects, the debate is opened with full compliance with the right of defence. The monitoring technique, with the set of eventualities that it implies, is presented as a special procedural structure in which the enforcement order (initial decision) as well as the eventual opposition phase that is generated (whether it is substantiated by the ordinary procedures or a summary structure is followed) is just as much an order for payment as the possible opposition phase that is generated. The aim is to attain maximum efficiency and effectiveness and this is achieved precisely through the interplay of eventualities. An appropriately designed order for payment procedure does not infringe the fundamental principles of due process. The text brings in some comparative experiences such as Germany, Ecuador, Colombia, Brazil. Within the framework of the full digitalisation of the procedure and the help of artificial intelligence, an order for payment procedure could be conceived even without legal sponsorship, with the application designed as a simple digital form, for specific cases where the probability of opposition by the defendant is low (either because of the incentive system or because of the high percentage of reliability of the plaintiff's claim, depending on pure or documentary systems). This, in the Latin American context of a shortage of people working in the judiciary - and in some countries also of people working as lawyers - would provide an efficient online litigation tool, which would relieve judges of an important part of their task, allowing them to focus on the conduct of hearings in ordinary and summary proceedings or on the proportionally few cases in which the debate is opened in order for payment proceedings.