The Right to Withdrawal and Waiver in Civil Judicial Proceedings

In the realm of civil procedural law, withdrawal and waiver are two legal mechanisms that allow the parties involved in litigation to end the judicial process, albeit with different effects and consequences. Understanding these differences is essential for litigants and their legal representatives.

Withdrawal from a Judicial Proceeding

Withdrawal is the unilateral decision of the plaintiff to terminate the judicial process they initiated. This means that the plaintiff decides not to continue with the legal actions against the defendant. However, it is important to note that withdrawal does not generate the effect of res judicata. This implies that the plaintiff has the possibility to refile their claim in another judicial process in the future.

According to Article 20 of the Civil Procedure Act (Ley de Enjuiciamiento Civil, LEC), the procedure for withdrawal varies depending on the stage of the process. If the withdrawal is submitted before the defendant has been served or cited, the judicial process ends immediately. If the defendant has already been served, they are notified of the withdrawal to either agree or oppose it. If the defendant does not oppose within ten days, a decree of dismissal is issued, and the plaintiff can initiate a new trial on the same subject. If the defendant opposes, the judge will decide what is appropriate.

Judicial Waiver

Waiver, on the other hand, directly affects the legal action requested or the claimed right, not the judicial process itself. Waiver implies that the plaintiff abandons their specific claim, resulting in a judgment of acquittal for the defendant regarding the waived action or right. This judgment does generate the effect of res judicata, meaning that the plaintiff cannot reclaim the same right or claim in the future.

According to Article 19 of the LEC, waiver may be inadmissible by the judge if it affects legal claims related to disability, filiation, marriage, and minors, or if it is considered contrary to public interest or harmful to third parties, in accordance with Article 6.2 of the Civil Code. In such cases, the process will continue.

Litigants' Faculties

Both withdrawal and waiver are manifestations of the litigants' power to dispose of the subject matter of the trial. Litigants may, in addition to withdrawing or waiving, acquiesce, submit to mediation or arbitration, and settle on the subject of the litigation, except when prohibited by law or limited for reasons of general interest or for the benefit of third parties.

Final Considerations

Civil procedural law clearly and specifically regulates the options of withdrawal and waiver for litigants. The choice between withdrawing or waiving depends on the particular circumstances of the case and the plaintiff's objectives. Withdrawal allows the plaintiff to retain the option of litigating again in the future, while waiver implies a definitive abandonment of the legal claim.

In both cases, the judge's intervention is crucial to ensure that the rights of all parties involved are respected and that legal provisions are met. A detailed understanding of these legal mechanisms is essential for an appropriate legal strategy in the judicial process.