Interpretación judicial al parágrafo primero del artículo 590 del Código General del Proceso, respecto del requisito de procedibilidad "conciliación", cuando la medida cautelar no recae sobre bienes inmuebles

Abstract

One of the significant changes brought by Law 1564 of 2012, is the one contemplated in the first paragraph of article 590 of said norm, in the context of allowing direct access to the administration of justice, without exhausting the procedural requirement, conciliation, as long as the practice of precautionary measures is requested, as contemplated in the first paragraph, which establishes: "In any process and before any jurisdiction, when the practice of precautionary measures is requested, you can go directly to the judge, without the need to exhaust the pre-judicial conciliation as a procedural requirement”. (Law 1564, 2012, art. 590) However, this tool creates a new interpretation criterion for judicial operators, which lies in a subjective interpretation at the time of the initial evaluation that the judicial operator makes of the requested precautionary measure. This new scenario gives rise to the exorbitant powers of the Judge, granted by this new norm, which will be reflected in judicial decisions based on the subjective interpretation given to the concept of precautionary measure, if it is limited to those precautionary measures subject to registration or precautionary measures that do not fall on this class of assets, such as the seizure of bank accounts, are admitted. In this sense, it is necessary to address, from a mechanic of interpretation of judicial rulings, the different criteria applied by judicial operators, this in order to establish whether this rule grants a special privilege or simply creates a legal vacuum that must be developed at the judge's subjective discretion.