The prohibition of surprise-judgements: Reinterpretation of iura novit curia from the due contradictory

Abstract

The principle that the judge knows the law and can decide the legal classification and finally the rule applicable to the case (iura novit curia) autonomously and in a soliloquy is discussed. There is the need for prior dialogue with the parties about the possibility of considering a vision of the applicable law that did not was considered previously. We speak thus of a dialogical iura novit curia, in such a way that the decision of the judge does not surprise the parties and also making these participants of how the case will be decided. Those decisions that surprise in their content-already ready and pronounced the judgement-to the parties and which could well have been discussed in advance are the focus of attention. The parties must be allowed to be heard regarding the iura novit curia. This study demonstrates the correlation between the duty of collaboration linked to the iura novit curia that allows an adequate contradiction with a plural discussion of those involved in the civil process for a fairer judgement. The dogmatic-comparative methodology is used to arrive at the conclusions that defend these positions from the stated hypothesis.