The Supreme Court rejected the cassation appeal in the case lodged against the judgment of the Court of Temuco. This confirmed the fundamental decision that no complaint had been lodged against the regulation of real estate.
Regularization was requested for a plot of land on the outskirts of the city of Temuco under the provisions of Legislative Decree No. 2695 of 1979.
A third party objected, claiming that the property belonged to him and that it corresponded to an indigenous property, so that, according to the principle of specialty, the rules of the indigenous law – Law No. 19.123 – had to be applied and did not give rise to such Registration.
The Court of First Instance considered the objection not filed, finding errors in the defamation and not complying with the formal requirements for this procedure, giving effect to the warning provided for in Article 22 of DL No. 2695, and ordered the property to be registered in name of applicant; Decision upheld by the Temuco Court on appeal.
The plaintiff appealed against this last judgment on the merits, alleging a violation of Articles 2 and 170 of the Code of Civil Procedure and Article 13 of the Civil Code in relation to Articles 2, 12 and 56 No. 2 of Law No. 19,253.
The complainant alleged that the judiciary did not reflect on the situation of the judicial process and its development in the light of the norms of indigenous law and re-applied a replaced procedural rule, which violates the principle of specialty regulated by Article 13 of the Civil Code, as it is about real estate and parts with indigenous status. The foregoing leads to the conclusion that the judiciary issued a warning that was inadmissible in view of the procedural legislation, since there is no warning in Law No. 19,253 as in the sub-lite case and the continuation of the proceedings should have been ordered in accordance with the indigenous law by causing discontent among the opponent by leaving him defenseless without the possibility of discussing the basis of resistance to regularization.
The Supreme Court rejected the appeal on the matter on the grounds that “(…) it is essential that the defamation in question clearly and conspicuously sets out the error committed by the judges in applying the law under which they decided the debate have decided that was presented to them.” their decision, which inevitably means that they have to rely on the so-called “procedurally crucial” norms; These are the people according to whom the legal dispute must be decided, because only they can significantly influence the tenor of the judgment. In the present case, these are those that concern the regulation and application of the warning contained in Article 22 of Legislative Decree No. 2,695 in relation to Articles 19 and 20 of the same legal entity, rules by which this was granted Therefore, the complainant’s objection was considered not to have been raised.”
On this basis, the Supreme Court rejected the appeal on the merits.
