EFFETTI DELLA RIFORMA E DELLA CASSAZIONE DELLA SENTENZA NON DEFINITIVA

This paper deals with the vicissitudes of non-final judgments in the appeal stages, which are opened up by the choice of one of the parties-absolutely discretionary and unquestionable-to file an immediate appeal instead of a reservation of appeal. The thesis is divided into three chapters constructed according to the classic deductive method (from general to particular). In the first chapter, the author provides the relevant legal background, first analyzing the relevant principles of civil procedural law (i.e., those relating to the substitution effect of the appellate judgment, the devolutionary effect of the appeal, and the expansive effect of reform and cassation) and then focuses on additional constitutional or cross-cutting principles, with the intention of demonstrating the fallacy of analogical arguments-often used by doctrine and jurisprudence-in the absence of a corresponding finding of the existence of a technical gap in the system. In the second chapter, on the other hand, after analyzing the concepts of "claim" and "issue", both statically and dynamically, we get to the heart of the illico et immediate appellate judgment by analyzing the principles related to the object of cognition and the powers related to the reform of a non-final judgment. In particular, the author argues that when the appealed judgment deals with issues that are likely to define the judgment or with prejudicial claims having an absorbing character, in reforming it the appellate court must consequently decide the original claim, thus giving rise to the lapse of the first instance judgment still pending at the preliminary stage or of the final judgment. Finally, the third chapter first deals with the distinction between substantially and formally non-final judgments, the middle paragraph analyzes all possible outcomes of the judgment of legitimacy instituted against a judgment reforming or confirming a non-final judgment (including that, not regulated by the legislature, of cassation with referral) and, lastly, there are brief hints regarding the so-called horizontal application of the rule of external expansive effect related to the problem of the theoretical conflict of judgments.

Grantor dc:publisher

Università degli Studi di Milano

Year dc:date

2023

Author dc:creator

• MONOSI, LUCA

Contributors dc:contributor

• tutor: S.M.P. Vincre
• E.S.C. Marinucci ; phd coordinator: G. Ludovico
• L. Monosi
• VINCRE, SIMONETTA MARIA PIA
• LUDOVICO, GIUSEPPE

• Sentenza non definitiva
• appello immediato
• ricorso immediato per cassazione
• riserva d'appello
• riserva di ricorso per cassazione.
• Settore IUS/15 - Diritto Processuale Civile

Statement dc:rights

• info:eu-repo/semantics/openAccess

Language dc:language

ita

Identifier

http://dx.doi.org/10.13130/monosi-luca_phd2023-07-12
10.13130/monosi-luca_phd2023-07-12

OAI identifier oai:identifier

oai:air.unimi.it:2434/981588