Il rapporto tra iudicium publicum e iudicium privatum nel nuovo modello processuale delle cognitiones extra ordinem

This paper concerns the relationship between civil and criminal actions in the procedural system of cognitiones extra ordinem: even in the extra ordinem process, in which the same judge decides both private and public iudicia, the procedures followed remained different, leaving that the different object and the different purpose pursued by who intended to start the action would guide the choice of the relative means of defence (if aimed at resolving a private dispute or punishing the guilty party of a crime). The sources attest the existence of the cumulation, but in some cases only elective competition, among such procedural instruments: the rationale underlying the choice of the legislator appears clear each time. With regard to the hypothesis of cumulation, when the same case required both the private protection of those who believed themselves to be infringed in one of their rights (real or credit) as well as the criminal persecution of the culprit of the harmful event, we studied, in particular, the questions, on the one hand, of the necessary (or not) precedence of the public judgment over the private one (i.e. of the existence, or not, of the prohibition of the praeiudicium of the private iudicium to the public one), on the other hand, of the origin of the figure called ‘constitution of a civil party’ in the criminal trial. Similarly, the problem of the precedence of a type of iudicium to the other concerns the different theme of the mere connection between the civil litigation and the criminal case (as happens, for example, when during the course of a private trial a the criminal question of the falsity of a document, also on which the judge of the private dispute should have based his decision): concerning that point, we tried to understand which needs the legislator attempted to satisfy when disciplining, in a direction or another, the relationship between the connected causes.