The New Civil Cassation Remedy Procedure

The Royal Decree-Law 5/2023, of June 28, introduces various procedural measures in its Title VII aimed at simplifying and expediting the processing of cassation remedies. In the field of civil matters, the modification of the cassation remedypertains to Articles 477, 478.1, 479, 481, 482.1, 483, 484.1, 485, 486, and 487 of Law 1/2000. Additionally, the appeal “in the interest of the law” is abolished.

1.            Grounds for Cassation Appeal

The grounds for filing a cassation appeal are modified, eliminating the distinction between procedural and substantive rules, and removing the direct appeal based on the amount in dispute. The cassation appeal must be based (Art. 477.2 LEC) on a violation of procedural or substantive rule, provided that there is a cassation interest. It is necessary to prove that the violation has been denounced or repeated at the trial level or, if correctable, correction has been requested (Art. 477.6 LEC).

However, even in the absence of cassation interest, a cassation appeal may be filed against judgments rendered for the civil judicial protection of fundamental rights subject to constitutional appeal.

Cassation interest will be appreciated (Art. 477.3 LEC) whenever: a) The appealed decision contradicts Supreme Court jurisprudential doctrine, or b) Resolves points and issues on which there is contradictory jurisprudence from Provincial Courts, or c) Applies rules on which there is no Supreme Court jurisprudential doctrine.

Furthermore, a cassation appeal will be admitted if the matter affects the general interest, by “notorious cassation interest,” understanding that there is a general interest when the issue potentially or effectively affects a large number of situations, either in itself or by extending beyond the specific case in question.

The new legislation consolidates the jurisprudential doctrine of the “question’s assumption,” stating in Article 477.5 that the evaluation of evidence and the determination of facts cannot be subject to a cassation appeal, except for a factual error that is evident and immediately verifiable from the proceedings themselves.

2.            Structure and Format of Cassation Appeal

Article 481 LEC regulates the content of the cassation appeal filing, additionally stating that the Supreme Court’s Governing Chamber may determine the maximum length and other extrinsic conditions of cassation appeal filings and oppositions. The corresponding agreement was published in the BOE on September 21, 2023, to which we expressly refer.

3.            Preliminary Verification of Requirements in the Case of Cassation Remedy for Violation of Procedural Rules

This preliminary verification will be carried out by the LAJ of the Court to which the cassation appeal is filed (Art. 479 LEC). According to the legal wording, the LAJ’s approval will determine that the requirements of prior denunciation of the violation and, if applicable, the attempt to rectify it in the previous instance or instances have been met, and the appeal will be considered filed. In the negative case, the LAJ will bring it to the attention of the court for a decision on the admission of the appeal.

Finally, Article 479.3 LEC establishes that preferential processing will be given to cassation appeals against final judgments issued in the trial of witness proceedings (Art. 438ter of the Civil Procedure Act).

4.            Admission of the Cassation Remedy by the Supreme Court

If the appeal is formally considered filed, the LAJ will forward the proceedings to the Admission Section of the First Chamber of the Supreme Court or to the Civil and Criminal Chamber of the Superior Court of Justice to rule on the admission of the appeal (Art. 483 LEC).

The cassation appeal will be rejected by a decree declaring the firmness of the appealed decision and will be admitted through an order expressing the reasons why the Chamber must address the issue or issues raised in the appeal.

There is no remedy against the decree or order deciding on the admission of the cassation appeal.

5.            Resolution of the Cassation Appeal by Judgment or Order

As a general rule (Art. 487 LEC) and as it could not be otherwise, the cassation appeal will be decided by judgment. However, in cases where there is already jurisprudential doctrine on the raised issue, and the appealed judgment contradicts it, the appeal may be decided by order that will annul the appealed decision and remand the matter to the Provincial Court to issue a new decision in accordance with the jurisprudential doctrine.

It should be noted that in the vast majority of cases, there will be prior jurisprudential doctrine that, if considered violated, will authorize the Supreme Court to resolve the appeal through an order returning the matter to the Provincial Court; a procedure that, far from expediting the cassation process, will have the effect of prolonging it.

There is no remedy against the judgment or order deciding the cassation appeal. The pronouncements of the judgment rendered in cassation will not, in any case, affect legal situations created by judgments other than the one appealed that have been invoked.

6.            Entry into Force of the Civil Cassation Appeal Reform

The Tenth Transitional Provision of Royal Decree-Law 5/2023 establishes that, in general, the new regulation of the civil cassation appeal will apply to appeals filed against decisions issued after its entry into force.

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