Thesis title: Autonomia privata e processo civile: la cessazione della materia del contendere, in Italia e negli altri sistemi di civil law. Contributo allo studio di un'atipica ipotesi di mors litis dai confini ancora incerti
The subject of this study is the cessation of the matter in issue, wich is a hypothesis of “mors litis” that, although not expressly regulated in the Code of Civil Procedure, is of fundamental importance from a systemic-applicative point of view, since it is used daily in courtrooms. Starting from the reconstructions offered by the doctrine, the investigation focuses on the necessarily praetorian evolution of the institution. In the light of the most recent case law, the main issues raised by this atypical method of concluding civil proceedings are highlighted, including: the merely declaratory nature of the ruling; the return of this decision to the sphere of the rite or of the merits; the possible use of the criterion of “virtual loss of earnings” for the purpose of reimbursement of court costs; the fate of the measures rendered in the previous levels of proceedings, if it is declared in the appeal phase or in the legitimacy phase, as well as in the opposition to execution. Particular attention is also paid to the foreign experience of some of the main civil law countries, namely: Germany and France. Significant are the common features between the cessation of the matter in issue and the Erledigung der Hauptsache referred to in § 91a ZPO, in its ‘facets’ of the übereinstimmende Erledigungserklärung and the einseitige Erledigungserklärung, in particular from what can be deduced from the case law of the Bundesgerichtshof. At the same time, elements of affinity can also be found within the French legal system, especially in the transaction and in the jugement d'expédient or in the jugement de donné acte, which in turn can be traced back to the broader institution of the contrat judiciaire. The examination also extends to the most recent developments, both normative and jurisprudential, in administrative proceedings and tax proceedings: unlike civil proceedings, in both cases the cessation of the matter in issue is expressly provided for ex lege. At the conclusion of the survey, an attempt is made to propose some prospect of reform on the part of the Italian legislature, so as to recognise, even in civil proceedings, logical-functional autonomy to the cessation of the matter in issue.