PREJUDICIAL QUESTIONS. — These are the questions that, 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 form the object of prejudicial examination; these «consist in modes of being of the subjects of the procedural relationship and are themselves independent of the judicial demand, even though they must exist at the moment when this is proposed» (DELLA ROCCA). Specific examples are the capacity to be a party in a lawsuit, the procedural capacity to act—that is, standing to sue—the legal representation of a person incapable of appearing in court personally, and consequently, the causes in which «a legal status, a complex legal relationship, or a legal relationship conditioning the principal action may potentially be the object of the establishment of controversy» (DELLA ROCCA) constitute matters for a prejudicial decision.
In canon law, as in civil legislation, the prejudicial question must be distinguished from incidental questions. Indeed, according to can. 1632 of the CIC, a question is prejudicial when the decision on it depends on that of the principal question and must be immediately examined by the judge; an incidental question, as prescribed by can. 1633, may be resolved before the principal one when its resolution opens the way to the resolution of other questions. If, however, there is no logical connection between the two questions, they may be resolved independently. Thus, according to the interpretation of the CIC and common doctrine, the resolution of the prejudicial question is necessary, as it constitutes the necessary logical antecedent of the final question; this necessity is not found in incidental questions, which, to be considered such, need only have a certain connection with the principal question. Doctrine is divided on whether the proposition of a prejudicial or even an incidental question suspends the principal proceeding; however, authoritative writers, and rightly so, hold that such questions, rather than suspending the principal proceeding, constitute a special phase of II. Indeed, such a determination, whether with respect to the substantive legal relationship or the procedural one, undoubtedly forms an integral part of the principal proceeding.
The ordinary provisions of procedure apply to the prejudicial action, as well as to all incidental questions, namely, the submission of the petition by libellus or orally. The choice between the two forms is significant in the case where the judge immediately rejects the petition as merely dilatory. With the first form, the judge must summon the parties in the manner prescribed by cann. 1711 ff. in order to then declare the rejection; with the latter, since the petition was submitted orally and thus in the presence of the parties, no citation is required. If the judge does not deem it appropriate to immediately reject the petition, he orders the treatment of the incidental question, which may be resolved by a decree, reasoned and unappealable, or by an interlocutory judgment, which may be challenged together with the definitive one.
The criminal proceeding, pursuant to articles 19, 20, and 21 of the Italian Code of Criminal Procedure, must be suspended until the outcome of the civil proceeding that involves the examination of personal status questions prejudicial to a criminal judgment. Obviously, for a civil or administrative question to be resolved beforehand, it must constitute the logical-legal antecedent of the crime or of a circumstance thereof. As must also be held, pursuant to article 3 of the same Code, when the adjudication of a crime influences the decision of a civil controversy, the civil proceeding is suspended, unless a specific contrary provision of law applies, until a non-appealable judgment of acquittal is pronounced or an irrevocable judgment after committal for trial, or even when the decree of conviction becomes enforceable.