By: Herbert Guerrero
Expert Adviser in Litigation – LatinAlliance El Salvador
In El Salvador, the court cannot legally impose any obligation of conduct prior to initiating a lawsuit, as in the case of a pre-action letter. It is only the obligation of the parties, in civil matters, prior to the lawsuit, to carry out all the necessary steps to obtain the evidence and documents that must be presented along with the lawsuit, either by requiring the counterparty to show any document necessary to sue or the generation of some evidence such as the expert report.
Prescription Periods:
In general, whoever wishes to file a civil claim is limited to previously collecting all the documentation and establishing the other evidence that will be used, since after the filing of the claim, they will not be able to present new documentary evidence that has not been offered to the start unless said document is of a later date or shows that it was impossible to know it at the time of the claim.
Regarding the period to present the claim, it must be presented before the substantive law that protects it prescribes, which in civil matters is generally ten years; If it is submitted after said term, the counterparty only has to allege the prescription for the judge to reject the claim.
Jurisdictional requirements of the plaintiff:
As a general rule, the plaintiff must sue the defendant in the jurisdiction of the court of the latter's domicile. But in addition, the parties may agree, in the main document, to submit any controversy to a court of a specific jurisdiction. If the court before which the claim is filed considers that it is not competent to hear the case by reason of the matter, degree, amount or territory, it may refer the file to the judge that it considers to be competent, and if both courts consider themselves incompetent to hear the case. litigation, the last one is sent to the Supreme Court of Justice, so that it decides who is the competent court.
The Initial Demand:
The lawsuit, for its presentation in court, must be accompanied by all the documents that prove the right to sue, as well as those documents that prove the facts alleged in the lawsuit, or at least indicate where they are located and if judicial assistance is needed to obtain them. Exceptionally, it is allowed, after the claim has been filed, to add new documents not mentioned above, if they constitute a new fact or new knowledge, which must be subject to consideration by the judge.
Rules:
Notifying the defendant that he has been sued is the responsibility of the court that admitted the lawsuit; This procedure is called location and is carried out by the judicial officer authorized by the judge for that purpose. The law also allows, if so requested and justified by the party, for the judge to authorize a notary public to carry out said procedure, who is nominated by the party that requests it. In the event that the defendant is outside the jurisdiction of the court, and notification has not been ordered by means of a notary public who can perform said function both inside and outside the Republic of El Salvador, said procedure is entrusted by postal mail to another court of the jurisdiction to be summoned of the same degree or of a lower degree to carry out such diligence. Finally, if the defendant must be summoned outside the country, the mechanism is through the Supreme Court of Justice and the diplomatic means of the government, in the diplomatic headquarters in the countries with which there is a relationship, and with the respective international treaties. .
Failure to respond to a demand:
The consequence of not answering a lawsuit is that the defendant is declared rebellious and the process continues without further notifying him of what happened in it, and only for not violating constitutional rights, the last thing that is notified is the sentence that determines the litigation.
About class action lawsuits:
The law allows class actions, specifically only in matters of consumer protection, labor (union) and environmental protection. To integrate a collective demand for consumer protection, it can only be done through duly legalized consumer protection associations; in environmental matters, the people who consider themselves affected can sue; in the case of unions, their representative; and in cases of public order, if the people who filed the collective lawsuits leave them, the judge continues to hear until the process is brought to a sentence.