The Counter-security of a Personal Nature and its Relationship with the Damages of the Defendant in the Courts of Huaraz

Abstract

The objective was to analyze the treatment of personal counter-security, specifically sworn guarantees, in relation to potential damages to the defendant in the mixed courts of the province of Huaraz. This qualitative, empirical-social study employed a non-experimental, cross-sectional design, supported by documentary analysis of court records, surveys of judicial administrators, and data triangulation. The sample comprised 200 case files related to precautionary measures over a five-year period and eleven respondents, including judges and clerks from two courts of the respective superior court. The results indicate that the nature of the precautionary measure, the amount of the claim, and the guarantees for payment of compensation are not considered criteria in most cases, and that sworn counter-security is preferred over real counter-security. It is concluded that the oath, contained in Art. 613 of the CPC, does not fulfill the purpose of compensating the defendant for damages in civil and contentious administrative proceedings, and that in practice in such courts it is permanently applied, even though this counter-guarantee does not guarantee or repair the damages resulting from the execution of a precautionary measure.