PREJUDICIAL QUESTIONS. — These are questions which, in a given judicial proceeding, must be resolved preliminarily, since the decision on them necessarily affects the principal action.
It is well known that the so-called procedural prerequisites are subject to prejudicial examination; they «consist in modes of being of the subjects of the procedural relationship and are in themselves independent of the judicial claim, although they must exist at the time when the latter is brought» (Della Rocca). Specific examples are the capacity to be a party to proceedings, procedural capacity to act, that is, legittimatio standi in iudicio, and the legal representation of a person incapable of appearing in court personally. Consequently, matters for prejudicial decision are cases in which «the potential or implicit subject of the dispute is a legal status, a complex legal relationship, or a legal relationship conditioning the principal action» (Della Rocca).
In the law of the Church, as indeed in civil legislation, the p. q. must be distinguished from incidental matters. In fact, according to can. 1632 of the CIC, a question is p. when the decision on it determines that of the principal question, and it must be immediately examined by the judge; an incidental question, on the other hand, as prescribed by can. 1633, may be resolved before the principal question when its solution opens the way to the resolution of other questions. If, instead, there is no logical connection between the two questions, they may be resolved independently. Thus, according to the interpretation of the CIC and of the common doctrine, whereas the resolution of a p. q. possesses a character of necessity, since it constitutes the necessary logical antecedent of the final question, this character is not found in incidental questions, which, in order to be regarded as such, need only have a certain connection with the principal question. It is disputed in doctrine whether the bringing of a p. q., or even of an incidental question, suspends the principal proceedings; authoritative writers rightly hold, however, that such questions, rather than suspending the principal proceedings, constitute a special phase thereof. Indeed, there can be no doubt that this determination, both with respect to the substantive legal relationship and with respect to the procedural relationship, forms an integral part of the principal proceedings.
The ordinary procedural provisions apply to a prejudicial action, as also to all incidental questions, namely, the submission of the application by written petition or orally. The choice of one form or the other is relevant if the judge immediately rejects the application as merely dilatory. In the first form, the judge must summon the parties in the manner prescribed by can. 1711 et seq., in order then to declare the rejection; in the other, since the application has been submitted orally and therefore in the presence of the parties, no summons is necessary. If the judge does not deem it appropriate to reject the application immediately, he orders the incidental question to be heard. It may be resolved by a reasoned and non-appealable decree, or by an interlocutory judgment, which may be challenged together with the final judgment. Under arts. 19, 20, and 21 of the Italian Code of Criminal Procedure, criminal proceedings must be suspended until the outcome of the civil proceedings, which involve the examination of questions concerning personal status that are prejudicial to criminal proceedings. Obviously, for the civil or even administrative question to require prior resolution, it must constitute the logical and juridical antecedent of the offence or of one of its circumstances. It must likewise be held, on the basis of art. 3 of the same Code, that if the determination of an offence affects the decision of the civil dispute, the civil proceedings are suspended, unless the law expressly provides otherwise, until a preliminary judgment of dismissal no longer subject to appeal has been issued, or until a final judgment has been issued after committal for trial, or also when the order of conviction has become enforceable.