PRELIMINARY QUESTIONS. - These are the questions that in a given judicial proceeding must be resolved preliminarily, since their decision necessarily affects the principal action.
It is well known that the so-called procedural presuppositions form the object of preliminary examination; these «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 moment when it is brought» (Della Rocca). Specific examples are the capacity to be a party to the suit, the procedural capacity to act, that is, the legitimatio standi in iudicio, the legal representation of a person incapable of appearing in court personally; and consequently those cases in which «a legal status, a complex legal relationship, or a legal relationship conditioning the principal action is the potential or implicit object of controversy» (Della Rocca) constitute matter for preliminary decision.
In the law of the Church, as indeed in civil legislations, the preliminary question must be distinguished from incidental questions. In fact, according to can. 1632 of the CIC, a question is preliminary when the solution of the principal question depends on its solution, and it must be immediately taken up for examination by the judge; an incidental question, on the other hand, as can. 1633 prescribes, may be resolved prior to the principal one when its solution opens the way to the solution of other questions. If, however, there is no logical connection between the two questions, they may be resolved independently. Thus, while — again according to the interpretation of the CIC and of common doctrine — the solution of the preliminary question has a character of necessity, constituting as it does the necessary logical antecedent of the final question, such a character is not found in incidental questions, which, in order to be considered as such, need only have a certain connection with the principal question. It is debated in doctrine whether the raising of a preliminary or even an incidental question suspends the principal proceeding; authoritative writers, however, rightly hold that such questions, rather than suspending the principal proceeding, constitute a special phase of it: in fact, such an ascertainment, whether with respect to the substantive legal relationship or with respect to the procedural one, undoubtedly forms an integral part of the principal proceeding.
The ordinary provisions of procedure apply to the preliminary action, as also to all incidental questions, namely the filing of the petition by means of a libellus or orally: the choice of one or the other form is of consequence in the case where the judge immediately rejects the petition as purely dilatory; with the first form, in fact, the judge must summon the parties in the manner prescribed by can. 1711 ff. in order then to be able to declare the rejection; with the other, on the other hand, since the petition was filed orally and therefore in the presence of the parties, no citation is required. If the judge does not see fit to proceed to the immediate rejection of the petition, he orders the handling of the incidental question, which may be resolved by a motivated and unappealable decree, or by an interlocutory sentence, which may be challenged together with the definitive one. Criminal proceedings, under arts. 19, 20 and 21 of the Italian Code of Criminal Procedure, must be suspended until the outcome of the civil proceedings, which involves the examination of questions of personal status preliminary to a criminal trial. As is obvious, for the civil or even administrative question to have to be resolved beforehand, it is necessary that it constitute the logical-legal antecedent of the crime or of a circumstance thereof. As must also be held, on the basis of art. 3 of the same Code, whenever the cognizance of a crime affects the decision of the civil controversy, the civil proceedings are suspended, save for a mandatory provision of law to the contrary, until an interlocutory judgment of acquittal no longer subject to appeal is pronounced, or a final judgment after committal for trial, or also when the decree of conviction has become enforceable.
Bibliography3 works
Giuseppe Spinelli