LE IMPUGNAZIONI INCIDENTALI CONDIZIONATE

The aim of this research is to analyse the position of the party which is winning on the merits (1st instance trial; appeal), although losing on issues, in the perspective of challenges. In the absence of a specific regulation, it is necessary to verify the compliance of his legal powers with the general principles of challenges. This research demonstrates that the successful party can either appeal or make a cassation complaint against those parts of the judgement that see his objections as rejected. The analysis of the appeal and the Supreme Court proceeding structures shows that the decision of dismissing the objections can be independently challenged within the judgement in both cases (art.329.2 c.p.c.). This means that the winning's party challenges, which intimately refer to that portions of the judge's decision, are based on “possible challengeable objects”. According to general principles, these challenges have to be admissible from a subjective perspective. Indeed, they need to reflect the interest of the successful party in his challenges. This interest can be identified in the advantages that the winning party will obtain from the acceptance of his challenges since, as a consequence of the adversary challenge, the winning party itself could become loser on the merits. Therefore, the interest becomes relevant whenever the acceptance of the winner’s challenges can lead to a solution which is preferable to that possible lost. It is worth highlighting that the winning party actually challenges a totally advantageous (winning) judgement. Therefore, in the case of challenges regarding issues of procedure, the winning interest is subordinated to the full acceptance of the adversary requests. Finally, this work focuses on the relationship between the winner’s challenges and the res iudicata through an historical overview that considers the position of the Supreme Court on the implicit identification of the jurisdiction that is innate in the judge’s decision on the merit. The critical point is to understand whether this rule applies (or can apply in principle) to any other similar issue on procedure. In this case, the winning party will have interest in challenging all the implicit decisions, thus leading to a huge proliferation of his challenge duties. This point is still largely debated and this thesis will try to clarify why the application of the implicit decisions regarding procedure issues can’t be accepted within our legal system. This implies that the winner’s challenges must be limited to the explicit content of the merit judgements.