31562 - Judicial Protection and Alternative Procedures

Course Unit Page

Academic Year 2021/2022

Learning outcomes

The course tends to the knowledge and formation of a person skilled in mastering abilities to think critically and communicational paths, juridically in line with the times. Therefore, in fact, a first part completely dedicated to the study of general theory and principles of jurisdictional protection is provided, because only through these can be mastered the ability to face problems, the solution of which can be obtained using general theory basis even if that is not immediately evident. Second part is maily dedicated to the study of more specific and concrete fields; those, in fact, cannot miss in a modern graduated cv: alternative dispute resolutions, more rapid and effective than traditional one, and therefore very appealing to post-modern markets; attention to companies needs, not only from a macro-dispute point of view but also from those of a single worker; procedure and judicial law in corporate law; european law paths, that cannot be ignored from many year by now.

Course contents

Caledar of lessons, divided by topics (matching exam content): 1) Constitutional, international and european law about procedural law; role of judicial precedent and general principles; 2) Purpose of the trial: material and trial truth. Implications on protection models. 3) The judge: neutrality; impartiality. Outlines of judiciary law. 4) Jurisdicion. Ordinary and administrative tribunals. Jurisdiction regulation under reg. 1215/12/EU. 5) Costs and times of the trial. Demands for proceedings differentiation. Demands for proceedings standardising. Procedural models in a comparative perspective. 6) Plaintiff in civil proceedings. Procedural requirements and conditions for action. Formal aspects of documents instituing the proceedings 7) Action in criminal proceedings. The public prosecutor. Action in administrative and tax judicial proceedings. 8) Right to a fair hearing: the adversarial system. Judgement by default. (Un)contested claims. 9) The defendant in civil proceedings. Pleas and counterclaims. 10) The judgement: the adequate reasons; the corrispondence between the ruling and the application; the corrispondence between charges and the judgement in criminal proceedings. 11) The principle of res iudicata: judicial and substantial aspects. Subjective and objective limits to res iudicata in civil proceedings. 12) The principle of equality of arms in civil, criminal, administrative and tax proceedings. 13) Procedural documents: invalidity. Form and formalism in an european perspective. 14) The burden of proof. Categorisation of the means of proof. Written evidence. 15) Oral evidence. Non-typical evidence. Illicit evidence. The electronic document. 16) Arbitration 17) Mediation and conciliation 18) Basics on civil execution. Proceedings for compiance in administrative law. 19) Interim measures. 20) Conclusions: proceedings models compared.

Readings/Bibliography

FOR ALL STUDENTS

OPTION 1

1) G. F. Ricci, Principi di diritto processuale generale, VI ed. 2015, Giappichelli, Torino
2) F.P. Luiso, Diritto processuale civile, Volume V: La risoluzione non giurisdizionale delle controversie, X ed. 2019, Giuffré, Milano (chapters 3, 4, 5, 8, 9, 10, 12 only)

OR, AS AN ALTERNATIVE, OPTION 2

1) B. Brunelli, Lezioni di diritto processuale generale, diritto processuale del lavoro, diritto delle procedure concorsuali, Bologna, 2020 (up to 24th lesson included)

Option 1 is recommended to whom may be wanting to know more about arbitration and mediation; option 2 is recommended to deepen labour procedure law and the relationships between civil, criminal and administrative justice.

Teaching methods

Depending on the evolution of sanitary emergency, lessons are granted in presence. Active participation of attendants would be greately appreciated.

During the lessons, attending students will be offered some insights, case studies and exercises that will allow a reduction of the exam program, corresponding to the topics covered by the in-depth studies and exercises carried out.

Assessment methods

The oral exam is aimed at verifying the knowledge of the subject, the use of the correct terminology and the problem solving ability.

The evaluation shall take into account: the knowledge of the subject, in every part; the ability to connect the different parts and to reason critically; the use of an adequate technical language; the good level of the exposition.

Teaching tools

The students’ knowledge is assessed through a discussion, to evaluate the actual achievement of the learning outcomes. The exam consists in an interview with the appointed commission on the topics included in the programme.


The assessment will take into account the knowledge of the relevant institutional framework, the ability to analyse doctrinal and jurisprudential opinions and, to single out connections between the relevant topics, to critical reasoning, as well as the clarity of presentation and critical thinking.


By way of example, the following criteria will be used to assess the final mark (that will be out of 30/30):
- sufficient or barely sufficient knowledge on the programme, limited reasoning ability, some difficulties in using technical and legal language → 18-20/30;
- fairly good knowledge of the programme, adequate critical reasoning ability, sound use of technical and legal language → 21-24/30;
- comprehensive knowledge of the programme, notable reasoning ability, good command of technical and legal language → 25-29/30;
- extensive knowledge of the programme, very good reasoning ability, and ability to fully master technical-legal language → 30-30L/30.


Office hours

See the website of Roberto Bonatti