Medical Reference Book
The book is designed to serve as Role in these proceedings No. 1249-1, followed before the Second Court of Letters of Buin, above ordinary court for challenging paternity, covers Arnaldo Morales Marincovich Lillo Marincovich Mirtha with Syria, the judge held, Judgement of 29 May two thousand and two , written on pages 262 and following, accepted, without costs, the demand for folio 16, in all its parts, and declared that the defendant Mirtha Syria Marincovich Lillo, no blood ties and kinship with Don Pedro Manuel Arnaldo Rodriguez Marincovich and subinscribir ordered failure outside the birth certificate No. 2947, 1951, El Almendral district No. 2, dated August 8, 1951, the city of Valparaiso, corresponding to the demand for cars. The ruling was appealed by the defendant and a Chamber of the Court of Appeals in San Miguel, by resolution of January 10, two thousand five, written at page 321, corrected by thirteen of the month and year, as reads folio 330, by majority vote, confirmed. Against him, the appeals filed DEFENDANT in the manner and at the bottom. The cars were brought into relation. WHEREAS:. FIRST: That the appellant founds the challenge in the causal No. 5 of Article 768 of the Code of Civil Procedure, that is, to have been pronounced the sentence with omission of any of the requirements listed in Article 170 of the Code, particularly the provisions in No. 4 of this article, this is because it contains the findings of fact or law which it is based, and because they develop in the ruling on appeal are contradictory, and therefore cancel out, therefore left to the court of second instance, devoid of the necessary considerations to explain the legal basis for its decision, it basically for three reasons. 1 .- There are in the ruling that is challenged, or the failure is in the first degree that it confirms the legal foundation for determining what law is applicable to the descent to the present case,. 2 .- There is no analysis of legislative developments, changes and modifications regarding the relationship and / or challenge paternity action, the action is tried in cars by the brother of the father of the defendant; y. 3 .- There is no retroactivity analysis about whether or not the current law of filiation, which could operate in this particular case,. SECOND: That the appellant believes that the central issue under discussion is whether the legislation applies today as it made the decision without any argument to that effect, or vice versa if the law is applied prior to the enactment of the Law of Filiation. He adds that, having been the legitimate daughter's marital status before the enactment of Law No. 19,585, the first thing that should have made the decision is to determine the law applicable under Article 5 of the Act transient. This forced him to determine: what persons were entitled to challenge the status of legitimate child of the defendant, and if the deadline for doing so was beaten for not having done, or conversely, having within that period, the action to challenge legitimate paternity was extinguished. By not doing so, he adds, not only sentencing violated that provision, as discussed in the appeal on the merits, but also the No. 4 Article 170 of the Code of Civil Procedure. Has been correctly applied Article 5 º transient current Filiation Act would have had to resolve that do not apply to this case, none of the current rules relating to action to challenge paternity, and proceeded, without giving any reason – to implement the current law rules of descent, that is the Act of October 19 585 1998, such as: the provision of evidence in the possession notorious; on biological evidence, and rules on applicability of action recognition. Appellant submits that the exclusion biological test carried out at the trial, has no special merit in the cause, it should be regarded as a simple expert report appreciate the court pursuant to the rules of sound criticism, and of course , is unaffected by public instruments studied and analyzed, if they have merit or complete full proof,. THIRD: That, on the other hand, argues the appellant, does not discuss the legal presumption of knowledge of the birth of the father, who lives in the same city where it occurs. This occurs because, not having made the critical distinction of Article 5 transient Affiliation Act cited, did not notice the sentencing in the provision of paragraph 2 of Article 183 of the Civil Code prior to reform. But even in either case, although the rules are different, there is one that is common to both legislation and corresponds to paragraph 2 of Article 183 of the Civil Code prior to the reform, and that the new Law of Filiation repeated in paragraph 2 of new Article 212. They say two provisions regarding knowledge of her husband the fact of birth: the husband's residence in the place of birth of the child will be presumed that he knew immediately, unless it be proved that part of the woman giving birth has been concealed. The contested decision, he says, he no longer considered abundant documentary evidence that proves beyond reasonable doubt that the deceased took up residence in Valparaiso, and accordingly it is presumed that Marincovich Pedro Rodriguez s upo the birth of their daughter, defendant, and it was for the actor to prove the concealment of birth, which recognizes the judgment same did not happen,. FOURTH: That, finally to found his appeal the appellant submits that there is contradiction between the various paragraphs of the statement of appeal with the basics that keeps the decision at first. On the one hand the sentence of the first degree, as well as the second instance, has applied the rules on possession notorious, expert biological challenge action and recognition of current legislation and not the last. However, the same sentence of the second degree is no longer subsisting the foundation 28 of the lower court ruling which states: That the above reasons, it is opposed to the provisions of Title Research affiliation in Title VIII of the Civil Code , given that such provisions are not retroactive as to argue that the defendant would be only in the category of non-marital child, provisions in this state of things, not enough. That is, on one hand the very sentence of second instance mentioned rules apply retroactively, but by keeping the recital twenty-eight of the court decision, asserts that they have no retroactive effect, which falls into an obvious contradiction, since one hand it is applied to a situation that is more than fifty years, and on the other hand, argues that the provisions do not apply retroactively. As HE has failed. Recitals contradictory Supreme Court cancel each other, and equivalent to lack of grounds, which fault occurs in the second degree, for which no preparation the resource. FIFTH: That in order for an appeal in the form can be accepted, it is essential that the party that enters into the absence has claimed that underpin it, putting in time and in every degree possible remedies under the law, a fact that in this case has not been met, since it states that there is a basis that does not contain the court of first instance, nor the Court of A PPEALS, under circumstances that only appealed the decision of the first degree, for which in this part of the action falls to be rejected for not being prepared. SIXTH: That as to the alleged contradiction between the arguments given by the judge of first instance and those expressed by the Court of Appeals for the retroactive application of certain laws, responsibility is to express, without prejudice to be marked with reason for the appeal on the merits, that this contradiction is more apparent than real, for the fundamental fact is, as he himself expresses appellant that the court decision, like the second, have applied the rules on hold notorious, expert biological challenge action and recognition of the current legislation, and not before. Thus, the reasoning expressed no objection to the fact clarify the statement on the instance that come to the conclusion that fatherhood invoked by the defendant was excluded, add that aspect is reinforced by the survey completed by DNA no matter the legislation applied retroactively to the time of failure, nor that there is a cancellation of the considerations, for what is noted is that the invocation of expertise is not reached retroactively apply the provisions that refer to the same , so that the ground of appeal has not been set. EIGHTH: That the appellant believes that the first violation of law, judges incurred by the fund, is related to the expiration of the challenged action. In this sense maintains a violation of Article 183 of the Civil Code, on its face before the Affiliation Act No. 19,585, in connection with articles 49, 2492 and 2493 Civil Code, the latter by poor implementation. Section 183 is violated in several respects aggregates and senses, but here is infringed by the contested decision in his first recitals and says: That does not appear in the record that the defendant has alleged timely prescription and / or forfeiture of the action exerted on demand. The words prescription and limitation relating to the extinction of an action or a right not included in the reply brief, which was invoked estoppel car action, which is different from the prescription and expiration. For his part, he adds, much better agreement with the dissenting opinion in that case said third and fourth paragraphs: Third, that the time for the parent contests paternity are aging and not of limitation, the expiration being a way prevents the legislature, after the deadlines established by law to exercise a right or performing an act without having exercised the right or performed the act, and can not be done later, its meaning and purpose therefore it is possible to assimilate term of preclusion. Fourth, in the event of dispute of paternity the legislator, attended the special family and social relevance of this action, set expiration time for the relevant interest is to quickly stabilize a legal situation, and that is what the dissident estimated preferential case, because in his view was stabilized father and daughter relationship between Peter and Mirtha Marincovich Marincovich. The appellant maintains that what the Minister did not say two things are equally important. a) the right things are what they are, not what the parties say, and moreover, point out all the writers in the world, and the jurisprudence of this Honorable Court has repeatedly resolved, adding that therefore , judges must apply the law properly and not as may be mistakenly saying the parties. If your part spoke of estoppel was not applicable because procedurally expired action when the right to pursue it, but this is not sufficient for the court to disregard the law which is applicable to the situation invoked; y. b) secondly, that in the case of a revocation is applied dog it's own rules and are those listed in Article 49 of the Civil Code, not the statute of limitations. As this Honorable Court has stated, he adds, in a decision dated December 3, 1964, published in the RDJ, Volume 61, Sec. 1page. 418: the provision of Article 49 of the Civil Code provides for the expiry, or lack of validity of acts that run outside the period stipulated by law. The contested decision infringed the provisions mentioned in that misapplied the rules of prescription which must be alleged and can not be declared officially by the judge to a limitation period, which for the reasons stated the judge not only can, but must act on its own. Have correctly applied the rules cited as violated, the court should have receive the appeal deducted on your part and reject the demand for cars,. NINTH: That a second offense committed by the judges in the background, is related to the putative marriage institution. In this regard, the appellant's complaint as a breach of Articles 179, 180 and 183 of the Civil Code in relation to the former Article 122 of the Civil Code prior to the amendment of Law No. 10,271 of 1952. Indeed, the court ruling confirmed without modification in this part of the second, in recital 21, point b), paragraph 2, point b.3 mentions as evidence the civil proceeding for nullity of marriage had to view, to be enforceable certificate of failure on March 3, 1952, from which it follows that we are in presence of a void marriage just prior to the entry into force of the abovementioned Act, which, in the opinion of the jurist Rene Abeliuk Manasevich, Volume I, descent and their Effects, p.61 not served to legitimize the children conceived before him., because the good faith of both parties ceased from the time of filing the application for annulment with the which will destroy the presumption of law in that the defendant was conceived within the marriage of their parents and therefore have the budget nción by that husband father, points to be discussed in a later section. The error in the statement is that, there being no declaration to the contrary, marriage was considered and considered until today as merely putative, and therefore, while not bound by a declaration to the contrary, produces the same effects of marriage valid, especially in what refers to children born within marriage, and if the child was conceived and born in wedlock, the presumption favoring the pater est is the old Civil Code Article 179, saying, quote: the child conceived during the parents' marriage is legitimate. Article 1 of Law No. 10,271, of April 2, 1952, added a clause that said that children conceived during the marriage null were also legitimate (now married affiliation) in the cases of Article 122. This provision was one clause which referred only to the putative marriage. Regarding the latter, and so declared the whole doctrine and jurisprudence, as the putative marriage is that it has contracted in good faith and for cause of error at least by one spouse, and as good faith is presumed, Marriage was always considered putative until mediate representation to the contrary. The mistake of the contested decision that he believes the legitimacy of children, marital affiliation today-is lost when the good faith of her parents is over, but forgets that constituted a civil state is not lost by a subsequent event, such as would be a declaration of nullity of marriage. According to Article 3 of the Law on the Retroactive Effect of Laws, marital status subsequently acquired is not lost even for a change of legislation. In conclusion, the contested judgment grave error of law committed by the stranger to today's date as the defendant then keep legitimate daughter (now married affiliation), notwithstanding the declaration of nullity of marriage of their parents, and, thus their status is determined by the provisions governing the constitution then the status of a legitimate child, and that in consequence nce, applying Article 183 of the Civil Code, necessarily must reject the demand for cars. Highlighting the mistake of law claim, the appellant states that the contested decision gives more credit to the subsequent legitimation Marincovich Mirtha Lillo, which in previous legitimacy, which will keep the names of the second entry and not those who initial and peers were at birth. ELEVENTH: That fourth violation alleged by the appellant, it places in the rules of impeachment. In this sense, alleges a breach of Articles 180 of the old Civil Code, in connection with the present Articles 212 and 213 of the Code, the 3 of the Act retroactive effect of laws and the 5 th transient Filiation Act. In fact, according to former Article 180 above, a child born after the expiration of 180 days subsequent to marriage, is said to be conceived in it, and that her father was her husband, a presumption which has now been changed, as seen in current Article 184 of the Civil Code. Paragraph 2 of former Article 180 provides: The husband, however, may not recognize the child as his, if he proves that all the time when, according to Article 76 could be presumed conception, was in absolute physical impossibility of access the woman. The present Articles 212 and 213 of the oft-quoted legal body, establish other rules for the challenge of parenthood today called marriage rules as those that have been applied to the defendant in the wrong way and stating further that they could not apply retroactively. With it, he adds, has infringed Article 3 of the Act retroactive effect of laws making marital status acquired under the law prevailing at the date of its incorporation shall remain even if it changes, and 5 transient Affiliation Act as it applies the previous legislation, if the husband's appeal period had expired. Add the appellant that according to the reasons given in its appeal, no one can deny that the defendant acquired his status today affiliation legitimate daughter married under the law then in force. Nothing happened then, and the declaration of nullity of marriage which is void under the law putative then, and now, neither the issuance of a subsequent law allows such affiliation attack for different reasons, can affect acquired status under that law perfectly. Has little to do, he adds, who has subsequently legitimized by another alleged father to the defendant, as such legitimacy can not lose a legally constituted marital status. Have nothing to do, therefore, biological tests and notorious possession, because they are ineffective if they do not prove that the law only accepted then. This is confirmed by the transitional rules of the Law of Filiation. If the deceased had wanted to claim the legitimacy of the defendant, should have done within 60 days after it became aware that delivery. That was his term and, consequently, after this term expires the right to challenge then legitimate filiation, marriage today, and the judge should reject outright and similar trade dispute, but according to Article 184 of the old Civil Code, if the husband died before the deadline that the law granted to disown a child as his own, could do the heirs of the husband. Consequently, according to article 5 of the transitional referral is essential to challenge the legitimacy of the defendant to establish whether the term had begun to run or not, that is, if you had knowledge of the delivery or not, according to that established in Article 183 item 1. Notwithstanding this, the decision challenged in recital 14 states that the testimonial evidence is insufficient to be analyzed by accredited the date on which father and daughter met, precluding knowing whether some or all of the period referred Article 212 of the Civil Code to run life reached Don Pedro Marincovich Rodriguez. Then, if it was not known if the time to figure out the challenge had begun to run or not, could not accommodate the demand, because they were not certain the rules regarding the ownership and form as stated in Article 5 Transitional cited and, in Consequently, not being certain applicable rules, the action could not accommodate enta blade. Under Article 1698 of the Civil Code who corresponded determine this circumstance was the plaintiff, since the former Article 183 of the Civil Code clause 2 (ignored by the ruling) established a legal presumption that he knew to be resident in Valparaiso . Then, according to the provisions of Article 47 paragraph 3 of the Civil Code it was for the plaintiff to prove this and for not having done so, to accede to the substantive appeal filed;. TWELFTH: That the fifth and last violation alleged by the appellant makes it consist in the violation of the rules of burden of proof. Thus, estimated to have violated Articles 179, 180, 182, 183 and 184 of the Civil Code in relation to Article 1698 of the same Act. The actor in demand asylum in the current provision of Article 213 of the Civil Code and therefore determines that the husband has 180 days (60 days and not in strict compliance with legal and appropriate) to deduce its challenge, and conforms to provisions of current law, citing Article 5 expressly transient Affiliation Act. Then, it corresponded to establish that indeed the husband died without knowing that there was a delivery, which did not. Moreover, he adds, the judgment seriously infringes another regulatory standard of proof, because Article 183, clause 2 former Civil Code establishes a presumption that has not been applied in this process, and is an established fact in the record that the deceased lived in Valparaiso at marriage, and the birth of her daughter, without having been tested in part, or the concealment of birth, as recognized by the sentence itself, provided neither subsection 3 of section medical reference book 183 above. From the foregoing that the applicant-estimated by applying Article 1698 was for the plaintiff to prove that the husband did not know the birth of his daughter, proving the concealment of birth. The ruling recognizes that it is proved the concealment of birth, and yet receives the action under the provisions of current law, which has broken a law regulating the test, and precepts that have been mentioned,. THIRTEENTH: That for an accurate determination of the appeal ada corresponds to point out that Luis Arnaldo Morales sued Marincovich Marincovich Mirtha Lillo Syria is determined that this request has no ties by blood or kinship with Don Pedro Manuel Rodriguez and Arnoldo Marincovich subinscriba the final decision to do so using the margin of the birth of the Civil Registry, District El Almendral No. 2, Department of Valparaiso, registration No. 2947 of August 8, 1951, with express condemnation in costs, and, meanwhile, Mirtha Lillo Marincovich Syria have sought to answer the demand, stating that they reject in its entirety as the only real and legitimate identity Mirtha Syria signed Marincovich Lillo, with costs. Based on such background, it is consigned judges in the kind of action to contest filiation of a child marriage, in deriving the disputed legal bond, no marriage of the parents, as requested, therefore, is purpose than the usual affiliation is declared inaccurate or nonexistent (Recital 16 of the court of first instance). FIFTEENTH: That is useful to set down that before the Eighth Civil Court of Viña del Mar, in the role cars No. 238-2000, Marta Lillo Marincovich Syria requested the actual possession of intestate inheritance that caused the death of Manuel Pedro Arnoldo Marincovich Rodriguez, wielding the quality of legitimate daughter and sole heir, which was granted by resolution of June 16, 2000. Cars in which Marincovich Luis Arnaldo Morales appeared as legitimate gainsaying and wielding too, as sole heir, being half-brother of Peter Arnold Marincovich Manuel Rodriguez, a procedure that would have become contentious, remaining suspended its processing, resulting in the action brought in this process. SIXTEEN: That in relation to breaches of law that judges dismiss complaints by fund except for prescription call, should be stated that such sentencing noted that this was not claimed promptly, but then proceeded to resolve, setting as a fact of cause, Pedro Rodriguez ignored the fact Marincovich delivery, which was hidden by Lillo Dolores Pizarro, so he had no knowledge of the birth of the defendant and that it was not proven the date on which it became known, so the limitation period for action to challenge the paternity was attributed to Marincovich Rodriguez could not begin to run thereon. For having given these facts established, the application is built on assumptions that differ from those set in the case and determines that this chapter of the challenge can not succeed, the more so if it is not invoked as a ground of appeal in the background, violation of the provisions mentioned s, having completed, in addition, the time the actor had to contest the filiation of the defendant. Indeed, in relevant part, Article 182 of the Civil Code, in its original text stated: While the husband lives, no one can claim the legitimacy of the child conceived during marriage but the husband himself, expressed below in Article 183 Any claim by the husband against the legitimacy of a child conceived by his wife during marriage, shall be made within sixty days that he was informed that delivery. The residence of the husband in the place of birth of the child will be presumed that he knew immediately, unless it be proved that by women has been no concealment of birth. Meanwhile the current Article 212 of the Code, under the amendment introduced by Law 19,585, published in the Official Journal of 26 October 1998 and entered into force next year, states: The paternity of a child conceived or born during the marriage may be contested by her husband within one hundred eighty days following the date on which it obtained the birth, or within one year from that date if he proves that at the time of delivery was separated in fact women. The residence of the husband in the place of birth of the child will be presumed that he knew immediately, unless it be proved that by women has been no concealment of birth. In the comparison of the two laws is observed that the limitation period does not begin to contemplate computer in the event that the woman hide the birth mother and the husband does not know the birth of the child whose parentage is credited, concealment factual circumstance delivery than in the case gave the ruling challenged established and for which did not give violated rules governing evidence, reason precludes review by this Court of Cassation, so have not been also violated the provisions of Articles 49, 2492 and 2493 of the Civil Code expressly appropriated as the second argument of the decision of the Court of Appeal, which accompanied the photographs are insufficient to determine the date on which the latter (Marincovich Rodriguez ) met the defendant, which prevents use to set the date would be started within or part of the limitation period ran Marincovich life of Mr. Rodriguez. Moreover, the limitation period with respect to the actor should be counted from the death of Pedro Manuel Marincovich Rodriguez, who as mentioned occurred on April 12, 2000 and file the demand for cars on September 25 of that year, according to as provided in paragraph two of Article 5 Transitional Law 19,585, which reads: The deadlines referred to in the preceding paragraph and others to challenge the parentage, paternity or maternity which have not begun to run, even if they say regarding children born prior to the enactment of this Act, shall comply with the new legislation, that is, according to the situations referred to in Article 212 of the Civil Code, the term is 180 days, so that the shelf life, such event has not been produced. SEVENTEENTH: That as the second chapter of violations of law expressing the appellant, consistent in estimating that the nullity of the marriage of Pedro Rodriguez and Dolores Lillo Marincovich Pizarro stopped having the character of the putative beginning of the trial for invalidity of
Categorised as: Uncategorized