The complementarity rule in the subgrounds of Improper Application of Law and Violation of Law by Omission within the appeal for cassation

Part I

In Guatemala, the extraordinary appeal of cassation is processed and resolved by the Supreme Court of Justice, Civil Chamber. This appeal aims, among other things, to determine the correct application of the law by the various courts of the Republic. This guarantees security and legal certainty for the governed that a certain judicial dispute will be resolved according to the law. Likewise, it has the peculiar function of unifying the interpretation of laws, meaning that through cassation, the Supreme Court of Justice unifies the legal criteria that courts must apply when resolving similar matters.

This appeal has different grounds for admissibility, including substantive reasons, in which the ruling is challenged due to the considerations made by the court regarding the subject matter of the case and the choice of rules applied for this purpose, allowing, in any case, the questioning of the rule used for resolution was not adequate (improper application of the law), implying that the court, when analyzing the case, failed to apply the rule that is appropriate for such a solution (violation of law by omission).

The Supreme Court of Justice, Civil Chamber, when resolving the sub-reasons of Improper Application of Law and Violation of Law by Omission, has the power to establish which laws are suitable for resolving certain disputes, with the aim that, through its judgments, any person knows and understands what considerations the court considered to establish or fix its position regarding its application. This is particularly relevant in disputes of a tax nature since often the discussion that arises between the Tax Administration and taxpayers consists of determining which legal norm is applicable in the dispute, requiring the intervention of a judicial body for its resolution.

Therefore, the Supreme Court of Justice, Civil Chamber, to establish which rule is suitable to apply for the resolution of a dispute, has developed a legal doctrine regarding the following: when the sub-reason of Violation of Law by Non-Application is alleged, the thesis must be complemented with the indication of the rule that was improperly applied in any case. This legal doctrine is contained, among others, within the cassation judgments issued within the files 4-2017, 20-2017, 120-2017, 306-2022, 10-2022, and 239-2020.

Comments regarding the principle of complementarity of the theses of the sub-reasons.

Regarding the legal doctrine that develops the complementarity between both sub-reasons, such a rule is reasonable because:

    • 147 subparagraph d) of the Judicial Organ Law, Decree 2-89 of the Congress of the Republic, requires that, in the judgment, the judge or court issuing it make a reasoned analysis of the laws on which what is resolved is based. In simple terms, the court, when issuing a judgment, must analyze and reason why, to resolve the dispute, it applies a certain law, that is, every judgment must have a legal basis on which the ruling was issued.
    • The foregoing entails that, if the party that considers itself aggrieved by what was resolved challenges the judgment under the estimation that the rule applied was not adequate for the resolution of the conflict, this implies that, in their opinion, when resolving, the rule that was appropriate for the resolution of the conflict was not applied.

Therefore, it is logical to think that, for the Supreme Court of Justice, Civil Chamber, to establish which was the appropriate rule for the resolution of the dispute, the appellant must explain the reasons why they consider that the rule used was not adequate and, if applicable, also explain why the rule that they consider omitted is correct for the resolution of the dispute. As a result, when analyzing the case, the court can, after studying both rules, discern which one is suitable for the resolution of the dispute. It could not do so only by knowing why it is said that the rule is not appropriate, without knowing which rule, if applicable, should have been applied, since I insist, a judgment without a legal basis could not exist.

If you require further information on this topic, please do not hesitate to contact us at