Legal requirements to decree innominate precautionary measures with the validity of the general code of the process

Abstract

With the issuance of the General code of the process in Colombia, was open to the possibility of decreeing and practice measures precautionary in declarative processes, other than the explicitly named by the legislature, with a view to guarantee not only the fulfillment of an eventual judgment but to make viable and effective law in litigation before arriving at the final stage of the process. These measures are a valuable tool for the plaintiff, although they can also cause threat of infringement of the defendant rights and the generation so called specific damages to be compensated. Therefore it will be essential for the judge and the parties know the legal requirements that must be met for requesting their decree, and take into account that some are on the norm that regulates its provenance and others are derived from the legal logic and other formal sources of law. In that sense, the article focuses on the examination of those requirements which, once verify, allow the provenance of calls innominate precautionary measures. To this effect, it started from a hermeneutic and exploratory study based on jurisprudential and doctrinal sources. The significance of the study lies in that it is a new institution of the civil procedural law in Colombia, and that, despite being recent, it has already found opinions and academic positions that guide the work of the interpreter; thus, they address legal requirements such as the legitimacy, necessity, proportionality and effectiveness among others rooted legal, jurisprudential and doctrinal.