Negative Feststellungsklage bei unberechtigter Abmahnung

Abstract

Over time the consecration of political and democratic social models have allowed to convert the process into a category of an instrument or alternative in exercising the fundamental right to Access Justice; it is an Instrument, certainly, but it is an indispensable instrument in achieving this and it became a guarantor of citizens, with the right to claim protection and to do so from parameters that responded from a formal structure to the achievements that modern constitutionalism has achieved. We might think the world has changed. And with this change society and Justice has also undergone transformations. The panorama that we live offers us a desperate search for a model of Justice in which prevails in the reduction of costs of the public treasury. This economic vision that inspires national, supranational and international policies has inspired reforms, has led to changes, justified absences and minimized the process. This, as a conquest of civilization in the context of conflict resolution, became the nuclear axis of a model of social justice in which citizens acquired the leading role and the protective state assumed the role of guaranteeing them to facilitate real Access to Justice for all. The importance of knowledge and management of the process led to the consolidation of university education in the process, with the subject of and with a very important amount of scientific work that has allowed to maintain the study of the process, besides the jurisdiction and the action, in one of the core-subjects of legal studies. The 21st century has dawned, however, with a very different reality. For many reasons, it is easy to observe how in the most prestigious foreign universities the subject of Procedural Law disappears from the curriculum of law, and the Chairs of Procedural or Process Law are replaced by Justice, Litigation “ADR, Evidence or Sentencing. Obviously, the process has not disappeared. There it is, and it is subject to changes, successive modifications, constantly, some of them are contradictory, almost as if you wanted to find it in a pill of happiness, as a method of transferring it to a third the competence to solve all evils. And, of course, we want a quick response, without excessive cost and favorable to anyone asks for it. The consequence of all this has led to the creation of a collapsed procedural model, without the adequate means to respond to this litigation explosion to which OLSON referred to at the end of the last century, generating a great dissatisfaction among citizens.