La sustitución procesal: análisis crítico

Abstract

Under a progressive dogmatic construction, the notion of procedural substitution has not always been defined equally. At present, however, there is a scientific consensus that procedural substitution refers to situations in which a person asserts other people’s rights in civil proceedings for their own benefit. The current definition of procedural substitution is the result of its own historicity or, if preferred, of the historical evolution of the assumptions that traditionally have been considered manifestations of this alleged legal institution. It was significantly heterogenous, as an expression of its own evolution and of the dogmatic construction on the parties’ status in civil proceedings. It was Josef KOHLER who introduced and included procedural substitution in the General Theory of Law, laying the groundwork for considering it as a phenomenon with a purely procedural nature, as a power or faculty to be exercised within a process. Thereon this institution was generally studied and researched by the German literature, although its subsequent developments have had little impact on our system. The second significant step toward raising the substitution to the status of an authentic procedural institution was given by the Italian literature and its efforts to import the first foundations laid about in Germany. It was Giuseppe CHIOVENDA who applied it to other cases and, paradigmatically, to the subrogation action, which could not be identified as such under German law. The first notions and formulations of the procedural substitution give cause to the Italian literature to deepen the dogmatic study about the parties within the civil procedure and the autonomy of the right of action and, in turn, served to illuminate the construction of the concept of standing in civil procedure, precisely from the phenomena of dissociation between the ownership of the right which is the subject of the process and the ownership of the right of action, that are considered characteristic of the phenomena of procedural substitution...