Principio de agotamiento de las capacidades de revisión en el recurso de casación.

Abstract

In this research work we will find the analysis of the legal institution of cassation, and the new dogmatic currents of application, especially the principle of exhaustion of the ability to review the appeal or Leistungsfahigkeit theory, which is a doctrinal legal theory originating in Germany, where a new method of resolving the judicial conflicts known to the judges of Cassation is established, and that in South America was applied for the first time in Argentina in 2005, in the sentence "Casal y others". After analyzing the development of judgments and resolutions in our country both National Court and Constitutional Court and we show that there is internal recognition of that theory, but that is not regulated in the procedural rules in the most appropriate way, therefore provokes the development of a sentence with several inconsistencies between the two. In the methodological development we can see in the results chapter, that despite the existing dogmatic recognition, there is a high percentage of ignorance about the doctrine that we are investigating, by the majority of professionals interviewed. We made a proposal for a reform of the General Organic Code of Process, where we implemented the Leistungsfahigkeit theory, having as axiological basis the development of legal principles that we want to implement for the consideration and procedural development of the Cassation resource.