The article outlines the ideas of Edoardo Garbagnati in the modern civil procedural doctrine and in the context of the various currents of thought.The Author remarks in particular that E.G. belongs to the “middle” generation of Italian doctrine who completes the building laid down by the founding fathers of Italian civil procedural system. Thanks to the continuous and transparent dialogue with the Deutch Doctrine, Edoardo Garbagnati attends to the fundamentals and emphasizes the relationship between substantial and procedural law.
Key words: Italian civil procedural system, the fundamentals of modern civil procedural doctrine.
The Author investigates the deepest meaning of Edoardo Garbagnati’s scientific research and, through the analysis of his most important works, he identifies their essential worth with the assertion of a rule: in dubio pro libertate. The necessity of guaranteeing a real protection of the citizens’ rights of freedom is reflected throughout the civil process in the constant and consistent quest of a formal rigour which the procedure requires in order to avoid any arbitrary action or abuse of power by the judge towards one of the parties or by one party towards the other. Compliance with the procedural rules becomes the current means through which equality between the parties in the proceedings and a fair judgement are assured and it is achieved through the legal action seen as the power of asking the judge the granting of an order. In this framework and considering the very authoritarian legal system of the time in which Garbagnati shaped himself, the rule that any limitation to the parties’ right of action must be confined by law is stated with great strength.
Key words: Processo civile, azione, contraddittorio, forme processuali.
A pupil depicts the great personality of Edoardo Garbagnati as scholar, professor, academic teacher, active also in the management of academic life during the student protest of 1968.
The Author reminds the figure of Garbagnati as a strong and friendly colleague. When Garbagnati was appointed as Professor at the Catholic University in Milan, where he had been studying since the beginning, he looked carefully at his own teaching as a mission directly entrusted by Fr Gemelli.
Key words: Italian civil procedural Doctrine, Garbagnati, Catholic University.
Regarding to one of the most highly debated figures in civil procedural law system, which is the extraordinary representative, the Author remarks the fundamental and the teorical perspective followed by Garbagnati. This is a great method guideline, which is just more useful today according to the European and international perspective.
Key words: Italian civil procedural system, extraordinary representative, the fundamentals of modern civil procedural doctrine.
This brief article reproduces word for word the oral speech held by the Author on May 22nd, 2013, at the academic conference celebrating the centennial birthday of Prof. Edoardo Garbagnati. It deals with one of the best known works of Prof. Garbagnati, notably the monograph on I procedimenti d’ingiunzione, published in Milan in 1991, and shortly discusses the reasons of its undisputed success and enduring legacy on the jurisprudence of the Italian Court of Cassation.
Key words: Diritto processuale civile, Edoardo Garbagnati, procedimento d’ingiunzione
The Author reminds of the two Garbagnati’s papers, the first edited in 1946 and the second one in 1950, both about the administrative justice: in both these papers Garbagnati explains its own idea about the object of administrative judgments.
Key words: Italian civil procedural Doctrine, administratrive justice.
This essay moves from an up-to-date review of Edoardo Garbagnati’s 1955 study (“Azione e interesse”), where he strongly criticized the opinion stated and supported by Salvatore Satta some years before, about the civil action and the procedural interest to the judicial remedy. According to Satta’s theoretical approach, there couldn’t be any structural difference between the substantial right (or interest) and the judicial action, to be legally brought before the courts of justice for its protection, because the action would simply be the same substantial right or interest (so to say) “in action”, while reacting by itself against its own violation. Garbagnati, on the contrary, positively defended and maintained the scientific opinion – still widely accepted, today – according to which the substantial rights (or interests) and the judicial action are structurally autonomous and separate. Therefore – although the difference between substance and procedure, especially at a constitutional level, is often relative – the civil action before the judiciary is the autonomous right (and the corresponding power), by which the violated substantial right (or interest) may be effectively asserted and enforced, on condition that the plaintiff has an actual and real interest to claim (and eventually to obtain) the requested judicial remedy.
Key words: substantial rights or interests, procedural interest to claim (and to obtain) their judicial protection, through adequate remedies, access to justice and constitutional guarantees, right to invoke the courts’ jurisdiction, power to bring an action before the courts of justice, right of action, civil action.
In the field of bankruptcy law, Edoardo Garbagnati’s studies focused on few but clearly identified topics, such as the allowability of claims or interests and its relationship with the subsequent distribution of the property of the estate. The article aims to show the main results of that researches, and their persistent actuality, particularly with regard to the necessity to consider individual execution and bankruptcy as parts of a unitary system, ruled by the same principles.
Key Words: Bankruptcy Law, proof of debts in bankruptcy proceedings, distribution of the property of the estate.
The essay considers the position of employees of the Italian Parliament, who are subject to the rules of proceedings of the two chambers (House of Deputies and Senate of the Republic) and judged by a special Commission from each chamber. The Author argues that although the rules of the chambers guarantee the independence of the Commissions, they are actually special judges, subject to the discipline of the Constitution, in particular regarding the guarantees of a fair trial. The decisions of the parliamentary Commissions are therefore subject to the jurisdiction of the Supreme Court of Legality (Corte di Cassazione).
Key Words: domestic jurisdiction, self-jurisdiction; autonomy and sovereignty of Parliament, rules of proceedings; employees, fair trial, fair process, due process of law, independence and impartiality of the judge, jurisdiction, special judges, judicial review.
Fascicolo digitale
|
