Libro Segundo Título II. Juicio oral

The following shall be processed in oral trial:

1.Lesser-amount matters.

2.Minimal-amount matters.

3.Matters relating to the obligation to provide maintenance.

4.The rendering of accounts by all persons upon whom this obligation is imposed by law or contract;

5.The division of the thing held in common and the differences arising among the co-owners with respect thereto.

6.The declaration of jactitation.

7.Matters which by provision of law or by agreement of the parties must be pursued in this proceeding.

All provisions of the ordinary trial are applicable to the oral trial, insofar as they do not conflict with what is prescribed in this Title.

The claim may be filed orally, in which case the secretary shall draw up the respective record. It may also be filed in writing. In both cases, that prescribed in Articles 106 and 107 of this Code shall be observed insofar as applicable.

If the claim complies with the legal requirements, the judge shall set a day and time for the parties to appear for oral trial, warning them to present their evidence at the hearing, under warning that the trial will continue in default of the party that does not appear.

Between the summons of the defendant and the hearing at least three days must elapse, which term shall be extended by reason of distance.

At the first hearing, upon commencement of the proceeding, the judge shall seek to bring the parties to an agreement, proposing equitable conciliation formulas to them and shall approve any form of settlement they may agree upon, provided it does not contravene the laws.

If conciliation is partial, the trial shall continue with respect to the claims not covered by the agreement.

If the defendant does not accept the plaintiff's claims, the defendant must clearly state at the first hearing the facts on which the opposition is based, and in that same act may bring a counterclaim against the plaintiff.

The answer to the claim and the counterclaim, where applicable, may be submitted in writing up to or at the time of the first hearing, fulfilling the requirements established for the claim.

If, in the period between the summons and the first hearing, or upon holding the latter, the plaintiff expands the claim, the judge shall suspend the hearing scheduling a new one for the parties to appear for oral trial, in the manner established in this Code, unless the defendant prefers to answer it in that same act.

The judge shall proceed in the same manner in the case of a counterclaim.

All defenses shall be raised at the time of answering the claim or the counterclaim, but those arising subsequently and those of res judicata, lapse, limitation period, payment, settlement and lis pendens may be filed at any time, as long as judgment has not been rendered in Second Instance. The judge must decide at the first hearing such preliminary defenses as he may be able to, in accordance with the provisions of Article 121, but may also decide them in a separate order. The remaining defenses shall be decided in the judgment.

If the plaintiff offers on that occasion evidence to contradict the defendant's defenses, the judge may set the hearing at which it is to be received.

The parties are obligated to appear at the first hearing with their respective means of evidence.

If at this hearing it is not possible to render all the evidence, a new hearing shall be set within a term not to exceed fifteen days. Extraordinarily and provided that, due to circumstances beyond the control of the tribunal or the parties, it has not been possible to submit all the evidence, the judge may set a third hearing exclusively for that purpose. This hearing shall be held within a term of ten days.

When evidence of declaration of the party is offered, the judge shall determine the hearing at which it is to be taken, from among those provided for in this article. The same procedure shall be followed for the recognition of documents.

The provisions of this article are understood without prejudice to the power of the judge to order measures for better provision in accordance with Article 197.

The judges who hear these proceedings are also empowered to set extraordinary time limits when any means of evidence must be rendered outside the territory of the Republic.

All incidents which by their nature cannot or should not be resolved beforehand shall be decided in the judgment. In the same manner, the nullities raised shall be resolved. In any case, the other party shall be heard for twenty-four hours, unless the incident or nullity raised must be resolved immediately. The evidence shall be received in one of the hearings specified in Article 206.

If the defendant acquiesces to the claim or admits the facts set forth therein, the judge shall render judgment within the third day.

When the defendant fails to appear at the first hearing without justified cause, the judge shall rule, provided that the evidence offered by the plaintiff has been received.

Within five days from the last hearing, the judge shall render judgment.

In this type of proceedings only the judgment shall be appealable. The judge or Superior Tribunal, upon receiving the record, shall set a day for the hearing, which shall be held within the following eight days.

Once it has been held, if measures for better provision have not been ordered, judgment shall be rendered within the following three days.

The execution of judgments shall be carried out in the manner established in this Code, but the time periods shall be deemed reduced by half.

When the amount in dispute does not exceed one hundred quetzales, the claim, its answer and further procedural acts shall be made orally, leaving a record thereof in a book to be kept for that purpose, as well as of the decision issued at that time. No appeal shall lie against that decision.

If the defendant fails to appear, the judge may summon him under warning that his non-appearance shall be deemed a confession of the facts asserted by the plaintiff, which shall be concisely stated in the record and judgment shall be rendered in accordance with the preceding paragraph.

In this class of proceedings, the parties shall not be charged with expenses, costs or fees of any kind.

The plaintiff shall file with his claim the title on which it is based, which may be: the will, the contract, the final judgment in which the obligation is recorded, or the documents proving kinship.

The need to seek maintenance is presumed, until the contrary is proven.

On the basis of the documents accompanying the claim and while the obligation to provide maintenance is being litigated, the judge shall order, according to the circumstances, that maintenance be given provisionally, fixing its amount in money, without prejudice to restitution if the person from whom maintenance is claimed obtains an absolutory judgment.

If no documents supporting the means of the defendant are attached, the judge shall prudentially fix the maintenance pension referred to in the preceding paragraph.

During the proceedings, the judge may vary the amount of the pension or decide that it be given in kind or in another form.

The claimant may request all kinds of precautionary measures, which shall be ordered without further proceedings and without the need to provide security.

If the obligor fails to comply, attachment and auction of sufficient property to cover its amount shall proceed immediately, or payment if cash amounts are involved.

If the defendant fails to appear at the first hearing and fails to answer the claim in writing, the judge shall declare him confessed as to the plaintiff's claims and shall proceed to render judgment.

All questions relating to the fixing, modification, suspension and extinction of the obligation to provide maintenance shall be heard under the procedure of the oral trial and under the special provisions of this chapter.

For this class of trials, no stamped paper shall be required from the maintenance obligee. The replacement of such paper with that bearing the corresponding legal stamp shall be borne by the defendant if he is held liable, who in such case shall also be ordered to pay the court costs.

When the rendering of accounts is demanded, whether because it has not been rendered, or because it has been done defectively or inaccurately, the judge, based on the documents on which the claim is founded, shall provisionally declare the obligation of the defendant to render the accounts and shall warn him to comply with this obligation at the first hearing that the judge sets, under warning of taking as true the assertions of the plaintiff and of ordering him to pay the damage and losses that the judge shall prudentially fix.

Against the assertions of the plaintiff, the defendant may present the evidence that he may have offered when answering the claim.

The procedure for the rendering of accounts of the depositaries appointed in trial shall be carried out in accordance with the provisions of Article 43.

As the case may be, the judgment may contain the following:

1.Approval or disapproval of the accounts.

2.An order to pay the balance resulting therefrom.

3.An order to pay damage and losses, to be fixed prudentially by the judge, in the case of default in rendering accounts, or of disapproval thereof, taking as a basis the assertions of the plaintiff.

4.An order to pay legal interest and costs.

5.The setting of the time limit within which payment must be made, or,

6.The exoneration of the defendant on the ground that he was not obligated to render accounts.

When the co-owners do not agree, division or sale at public auction of the common property may be requested, through the procedure of the oral trial.

A judicial declaration shall also be necessary when there are interests of minors, absentees, incapacitated persons or the State, who shall be summoned through their lawful representatives.

The Partitioner shall be a notary.

In the conciliatory phase, the judge shall seek to bring the parties to agreement on the appointment of the Partitioner; and if there is no agreement, he shall make the designation. Likewise, he shall seek to have the interested parties determine the bases of the partition.

After acceptance by the appointed Partitioner and discernment of the office to him, the judge shall fix a term for him to submit his partition proposal or to state to the tribunal the impossibility of carrying it out.

Prior to formulating the partition proposal, the Partitioner may privately request from the interested parties such instructions and clarifications as he deems appropriate. If they are not obtained, he shall apply to the judge to convene a hearing, so that the points he considers indispensable may be established therein.

Upon submission of the partition draft, the judge shall inform the parties thereof and convene them to a hearing, so that they may make such observations and present such evidence as they deem appropriate.

If the judge finds the objections of the parties to be well-founded, the judge may order, on a single occasion, that a new draft be prepared by the Partitioner, setting a time limit for that purpose. The parties shall be given notice of this new draft for five days.

The judge may extend the time periods for the processing of the oral trial as necessary to comply with the transfers of the partition draft.

Once the time periods referred to in the preceding article have elapsed, if there is no opposition by a party, the judge shall approve the partition in a reasoned order, and shall order it to be protocolized by the Partitioner himself.

If there is opposition, the judge shall render judgment, declaring as the case may be the approval of the proposal, its modification with specific determination of the points subject thereto, or the appropriateness of the sale of the thing at public auction.

For purposes of protocolizing the partition, the Partitioner shall receive from the Trial Court certification of the draft and of the order approving it, or of the judgment as applicable.

Said certification shall be transcribed, as regards the partition draft, respecting in all its parts the form given to it by the Partitioner, even if spaces have been left blank and it has not been written line after line.

If the judge orders the sale of the thing at public auction, the judge shall at once set a day and time for that purpose, observing the steps of the executive procedure insofar as they are applicable for the purposes of the auction sale.

The declaration of jactitation lies against any person who, outside of trial, has claimed a right over the claimant's property or credits or actions against him, of whatever kind they may be.

In addition to complying with the requirements established for the claim, the plaintiff shall state what the boast consists of, when it occurred, the means by which it came to his knowledge, and shall formulate a request that the defendant admit or deny the imputed fact or facts.

Upon summoning the defendant, the judge shall order him to admit or deny the imputed facts at the hearing designated by the judge, under warning that, in the event of default, the facts on which the claim is based shall be deemed true.

In case of default or where the defendant admits the facts, the judge shall render judgment declaring the boasting and setting for the boaster a term of fifteen days to file his claim, under warning that his right shall be deemed lapsed.

If the claim has been denied, the judge, on the basis of the evidence produced, shall render judgment, which shall declare whether or not the expressions that the claim attributed to him were uttered by the defendant. In the affirmative case, he shall proceed in accordance with the provisions of the preceding paragraph.

Upon expiry of the term fixed in the judgment, without the defendant having shown that he filed the claim, the judge, upon request of a party, shall declare the right lapsed and shall order issuance of certification to the plaintiff.