Iura novit curia in chilean private law jurisprudence

Abstract

The present paper carries out a critical analysis of the most relevant Chilean judicial decisions regarding the legal authority of the courts to decide about the legal rules that are applicable to a particular case. in its first part, it is explained how the distribution of procedural roles has responded to a series of hardly questionable dogma, and how its influence on judicial decisions is clear. Also, it deals with the most important consequences of the distinction between matters of law –which determination is assigned to the courts– and factual subject –which determination is assigned to the parties. Lastly, based upon diverse rulings, the paper explains the need to leave that rigid separation, in the light of procedural rights as the right of defense.