c, depositing the file on the complaint at the court (art
In the civil process, before the application of the plaintiff, the defendant named in the judgment in the implementation of the adversarial principle, can be established: limited to challenging the the claims of the complaining party, proposing exceptions aimed at achieving the rejection of the instance of plaintiff by proposing the application of the assessment, incidental, or, finally, by formulating a counterclaimUnlike the mere defence or exceptions that tend only to reject the claim plaintiff and does not dilate the object of process, the counterclaim is an independent action, through which the defendant asks for a measure in itself favourable and unfavourable to the other party, that is, a real counter-question that expands the thema decidendum. In other words, 'with the counterclaim, the defendant abandons the attitude of a mere contrast of the application of the plaintiff (which is expressed with defences and exceptions), and tries to make the process functional to the affirmation of a subjective right, attempting to obtain from the court a ruling constituent, the amending or under way' (Gdp Ottaviano.).
To this end, the counterclaim of the defendant to be proposed, on pain of forfeiture, in the statement of response, to be deposited in the peremptory term of twenty days prior to the court appearance specified in the summons or of the hearing fixed in accordance with art.
-bis, paragraph, c. c, that is, ten days before in the case of abbreviation of the terms under art. -bis, nd comma, c. Where the object or the title of the counterclaim are omitted or absolutely uncertain, the judge, detect the invalidity, fixed to the defendant a deadline to integrate, while remaining subject to the lapse accrued, and without prejudice to the rights acquired before the integration (art. c, the counterclaim in the civil court is not feasible in an unconditional way, but must be established within the framework of a process already pending (the main cause), being able to solely depend on 'title deduced in court by the plaintiff or from that which already belongs to the cause as a means of exception'. In both of those cases, the court competent for the main claim - reads the art. - also knows of the counterclaims', provided they do not exceed the limits of its jurisdiction, or for value otherwise, it will throw the entire case to the high court judge (ex art. or shall the main question, leaving the parties to the competent court for the decision on the exception of compensation (art.
It is good to clarify that the counterclaim may also be brought by the plaintiff, in the face of demand promoted by the defendant.
In virtue of art. c, plaintiff, in fact, on the assumption legitimating of the counterclaim of the defendant can play the 'reconventio reconventionis' at the first court appearance of the parties and the hearing of the cause. It is understood that the questions, 'new', compared to the one originally proposed by the petitioner, are allowed under the provision referred to in art. c, 'only when they find justification in the counterclaim or in the exceptions proposed by the defendant' (Cass. Part of the doctrine and case law also recognizes the institute that our code of civil procedure does not regulate expressly the cd. counterclaim cross. It is, in substance, the question that the defendant raises is not against the actor but in relation to another defendant, also called by the actor to be part of the process. Generally the law considers sufficient for the purposes of his proposition, the inclusion of demand cross on the inside of the pop-up response, as is common counterclaim and without need of notification to the person against whom the same is addressed. It will then be the judge who, at the request of such person, assign a term to defend themselves. Not missing, in each case, who (in the doctrine) considers the application to be inadmissible and devoid of any value inside of our legal system.
According to the provisions of art
Given that, as we have seen, the counter-claim widens the thema decidendum and configure it, in fact, as an action that is 'additional', it also leads to an increase in the value of the claim is established.
Consequently, the one who proposes it is obliged to expressly declare that the new value for the purposes of legislation relating to court costs: the filing of a counterclaim, in fact, entails the obligation for the applicant to pay the standard fee, determined on the basis of the value of the same.
In any case, it should be noted that not always the counter-claim is admissible.
A prerequisite for its admissibility, the fact that it is connected with the principal claim.
However, as pointed out by the Court of cassation, with sentence number of the winds of December, subsequently confirmed by many other pronunciations (for example: the Court of Rome twenty-seven June), such a link should not be understood in a restrictive sense.
The main action and the counterclaim, therefore, does not have to necessarily depend on a single title: for the second to be admissible, it is sufficient (but unavoidable) that it is connected in an objective manner with the alleged principal, and that you need to, and appropriate to the simultaneus processus, for the purposes of procedural economy and in application of the principle of due process. born in, and resident in via no.
F.) electively domiciled in via n, at and in the study of the Advocate of the Hole (c.f.
fax - pec that represents and defends the right of attorney at the end of this act a writ of summons formally notified of the sig. called in judgment on the sig. before the suintestato Court, in order to see welcome to the following conclusions: With the present act, the sig.
it is in judgment in order to contest and reject the application plaintiff in all of its assumptions of fact and law, asking for the rejection, with acceptance of the counterclaim today's proposal, for the following reasons (argue the foundation of their defenses and claims, both in terms of the fact that in terms of law, by dividing it into paragraphs if necessary).) reject in its entirety the request made by sig, as unfounded in fact and in law, for the reasons given in the narrative) ascertain and declare that, and, in counterclaim, to condemn to.
you asking for the admission of witness evidence (and examination of) the following chapters of the trial, subject to further arguments, clarifications, amendments, deductions, investigations in terms of the law, also in the light of the defences of the other party. For the purposes of the regulations on costs of justice, it is stated that the value of the counterclaim amounts to euro and that therefore the unified contribution to be paid is equal to euro.
