PRESIDING JUDGE'S INSTRUCTIONAL POWERS IN SOCIAL SECURITY LAW CASES: OVERCOMING THE DOGMA OF NULLITY OF THE JUDGEMENT

Abstract

ABSTRACT: The article investigates the instructive powers of the presiding judge in the social security judicial cases, based on the interpretation of the rule of article 938, paragraph 3, of the Code of Civil Procedure (CPC/2015). It deals with the instrumentality of the process, the effectiveness of the jurisdiction and the principle of primacy of the decision on the merits. The article also discusses the “retrospective interpretation”, a technique that seeks to unravel the meaning and scope of the 2015 Code using valid criteria for the 1973 CPC. It concludes by the need to attribute effectiveness to the rule of article 938, paragraph 3, of CPC/2015, overcoming a judicial culture that insists on reaffirming the dogma of nullity of the sentence. It is no longer possible to determine the annulment of sentences in cases of deficiency or insufficiency of evidence. It will be up to the presiding judge in the Court (or the competent collegiate organ), to determine the conversion of the judgment into a diligence to produce the evidence, proceeding then with the judgment of the merits of the appeal. There is no limitation on the kind of evidence that can be produced in this procedure, and the presiding judge can decide whether the evidence will be produced in the Court itself or in the first degree of jurisdiction. The methodology used in the article is theoretical-dogmatic research, in addition to essential jurisprudential research for the solution of the proposed problem.