The End of Cassation in Chile? Recourse to the Chilean Supreme Court in Civil Matters

Abstract

At the moment of its creation (1823), the Chilean Supreme Court had five judges. In reaction to the codification period and because of its subsequent increasing caseload, the Court expanded and today has twenty-one judges. The function of the Supreme Court was amended in 1902 to include cassation appeal following a reform of the code of civil procedure. Building on the French model, Chilean cassation reviews questions of law and procedure, excluding questions of fact. However, Chilean cassation does dictate a new decision on the merits. Aside from the formal admissibility requirements, the Court is additionally competent to filter out cases if they are ‘manifestly unfounded’. A complete reform of civil procedure is currently under discussion in the Chilean Congress. As for the Supreme Court, the draft bill aims to replace cassation with an ‘extraordinary recourse’ (recurso extraordinario). The main difference is that the new recourse will be characterized by restrictive filters, according to which the Supreme Court should only deal with contradictions in case law and violations of fundamental rights. This modification is one of the most debated aspects of the reform and at present the future of the reform remains uncertain.