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e-book Fundamentos de Derecho civil (Spanish Edition)

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Litigations that extend beyond one Labor Court:. Collective disputes or collective bargaining that extends beyond one Autonomous Community:. First instance: Labor Chamber of the National Court. We must distinguish between high-ranking soldiers commandant and higher and low-ranking soldiers. Table of Contents. As a consequence of the recognition of autonomy at Spanish Constitution, Autonomous Communities can organize:.

Autonomous Communities issue their own legal provisions. The Statute must contain article SC :.

The structure of the Legislative Assembly is basically the same in all Autonomous Communities, and it is based quite accurately on the provisions set by the Regulation of the Congress. All Autonomous Communities except Catalonia have issued their own electoral legislation. Compositions of the Executive Councils have also followed similar guidelines.

The President is elected by the Assembly among its members and will assume article SC :. As said before and stated in article 1. The Crown is an organ configured by the Constitution itself, so it is one of the constitutional organs of the State. In this sense, the King is in a position of parity with all the other constitutional organs, because all of them derive directly from Constitution. Nowadays, the titular of the Crown is H.

According to article 56 SC the King is the Head of State, with the functions expressly attributed to him by the Constitution.

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The King enjoys formal and honorific higher dignities and he is the symbol of the unity and permanence of the State. The person of the King is inviolable and shall not be held accountable article Succession is regulated by article 57 SC and it is based on the principles of primogeniture and representation, complemented by the following rules:. This rule does not mean that women can not reign. Questions of regency are regulated by article 59 SC and the guardian of the King during his minority by article 60 SC.

The King will be proclaimed before the Cortes Generales. The functions of the King are listed at articles 62 and 63 SC. The Royal Household [19]. The Constitutional Court is not a part of the court system. It is the supreme interpreter of the SC article 1. Constitutional Court members are chosen among magistrates and prosecutors, university professors, public officials and lawyers, all of all of them with at least fifteen years' practice in their profession article Their mandate is for nine years and they are renewed every three years by thirds article The Constitutional Court has jurisdiction over the whole territory and its functions are stated at article These functions are:.

The Constitutional Court accomplishes its functions through different procedures:. This is an appeal alleging unconstitutionality of acts and statutes having the force of an act and it is regulated by article If a judicial body when hearing a case considers that an applicable regulation with the force of an act may be contrary to the Constitution it may bring the matter about its constitutionality before the Constitutional Court.

Entities or individuals entitled to lodge the mentioned procedures are stated at. Article SC. Issues of unconstitutionality can only be held by judicial bodies. If an international treaty contains stipulations contrary to the Constitution its conclusion will require prior constitutional amendment. The Constitutional Court is also entitled to hear about disputes among the different organs of the State article The Spanish legal system is a civil law system. The three main codes in Spain are:.

The SC should regulate sources of law but due to historical reasons sources of law are regulated by the Civ i l C o de. Must be understood in the sense of any written rule of law created by the State. Custom needs the existence of a practice and the existence of an opinio iuris that is the general conviction about the obligatory character of a customary rule. Custom against legislation contra legem is forbidden by the article1 Cc.

General principles of law are the basic rules reflecting the convictions of a community in respect its organization. General principles of law permeate the legal system, for instance art 1. SC and they also inform other sources. Case law issued by the Supreme Court is a complementary source of interpretation and application of the law. The Supreme Court is allowed to decide not only if the if decisions are against the law, but also, if judicial decisions of the lower courts were against the established jurisprudence.

Fundamentos del derecho civil patrimonial IV : las particulares relaciones obligatorias

The decisions of a court may be appealed if they not conform to the case law decided by the Supreme Court on the same issue in at least two judgments. No applicable rule can be derived from legal doctrine. It is not mentioned as a source of law and the Supreme Court has denied this character. Legal doctrine just provides an interpretation or clarification about the other sources of law.

The Spanish legal system is hierarchical, so laws of a lower jurisdiction cannot override laws of a higher jurisdiction. The rank, from higher to lower level, is:. Organic Laws are a specific type of statute. They are regulated by article 81 SC and are different from ordinary legislation in two ways:. Exercise of fundamental rights and public liberties, Statutes of Autonomy, the general electoral system and others provided for in the Constitution must be issued by an organic law article Ordinary laws are all the laws whose subject matter is not reserved to organic laws by the Constitution.

They require a simple majority of the Congress and of the Senate, with the Congress adopting the final decision. These are provisional legislative decisions that Government may issue for extraordinary and urgent matters and rank as laws. Decree Laws may not affect basic institutions of the State; rights, duties and liberties of the citizen regulated in Title I; the system of the Autonomous Communities or the general electoral law.

Decree Laws must be ratified by the Congress, convoked for that purpose if it was not gathered, within a period of 30 days. Legislative decrees are dispositions of the Government containing delegated legislation article 85 SC and also rank as laws. This legislative delegation must be granted by a Basic Law Ley de Bases when its objective is the formation of articled texts or by an ordinary law when is a matter of arranging several legal texts in to a single one article This delegation must be granted to the Government in an express form, for a concrete matter and establishing a period of time for its exercise article Regulations are legislation of a lower status.

The term Regulation refers to any general rule dictated generally by the Government. Article 97 SC gives the Government regulatory power, but other constitutional organs of the State may also have regulatory power in order to regulate their own function.

Derecho Civil

For instance: Congress and Senate article Regulations may regulate matters without legislative coverage or develop an existent law. They also may create or modify rights and duties of the citizens, or just organize administration activities affecting only the citizen who has a special relationship with the administration. Types of regulations:. If the treaty attributes to an international organization or institution the exercise of competencies derived from the Constitution, the authorization must be established by means of an Organic Law article 93 SC. Any other treaty may be signed for the Government who shall inform the Parliament article As stated in article 95, any international treaty which contains stipulations contrary to the Constitution shall require a prior constitutional revision.

Government or either the Chambers may request the Constitutional Court to decide whether this contradiction exists. In Spain became a member of the European Union and transferred the exercise of certain domains and State powers. European Treaties and the rules produced by the institutions of European Union, as International rules, are directly applicable as a part of the national system once signed, ratified and published in the Official State Gazette. The Spanish Supreme Court and European Court of Justice have both resolved that any conflict between domestic legislation and the European Union legislation must be resolved by ordinary jurisdiction according the principle of supremacy of Community law.

For further information about EU law:. Available in all EU languages. As stated in article 87 SC, legislative initiative belongs to:. Government exercises the legislative power on behalf of a bill Proyecto de Ley. Bills are approved in the Council of Ministers Consejo de Ministros which shall submit them to the Congress accompanied with an exposition of motives and the antecedents article 88 SC.

Once a bill has been approved by the Congress, it will be delivered to the Senate that may, through a message explaining the reasons, veto by an absolute majority or introduce amendments into it article Congress may or may not accept the amendments. If not, Congress must ratify the initial text by an absolute majority or by simply majority once two months have passed since the presentation of the text. Congress may also accept or not the amendments, expressing whether or not it accepts them by a simple majority article Proposals of law are regulated in the Regulations of the Chambers.

The ones taken under consideration by the Senate shall be sent to the Congress article Assemblies of the Autonomous Communities may ask the Government to adopt a bill or send to the Board of the Congress a proposal of law article This initiative shall require at least , signatures and is not applicable to Organic Laws, taxation, international affairs and the prerogative of pardon. Proposals of law from the Congress and from popular initiative pass directly to the next step.

Groups can maintain amendments not accepted by the Commission. The Commission studies the text section by section and debates the amendments tabled. The Senate may accept, table a veto or table amendments. In both cases the text is the one approved initially by Congress. Congress can preclude the veto placed by the Senate. The King shall sanction the laws approved by the Parliament within the period of fifteen days and shall promulgate them and order their publication art 91 SC.

Free access since Decisions of special importance may be submitted for a consultative referendum of all the citizens convoked by the King at proposal of the President of the Government authorized by the Congress article92 SC. As said above, Autonomous Communities issue their own legal provisions, in order to organize their institutions and regulate the domains attributed to them by SC. These legal provisions are only applicable in the own Autonomous Community.

They are produced by the Legislative Assembly according to the method established. The practice of any legal profession in Spain requires obtaining a law degree at a law school Facultad de Derecho. After obtaining the law degree, one can choose to complete a Doctorate program. The Doctorate in Law provides specialization of knowledge in a certain area through lectures and seminars and the presentation of a thesis on a legal topic.

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Law School. Universitat Oberta de Catalunya [26]. Universitat Oberta de Catalunya. Law School [27].

Hevia, Martín

Facultad de Derecho - Universidades y planes de estudio. Links to Spanish Universities, Law Schools and study program s. The main legal professions in Spain are:. Lawyers carry on the advice and defense of public and private interests through the application of legal science and legal techniques. This provides a definition of lawyer and the functions, rights and duties, the requirements to practice as a lawyer and the governing organizations of the legal profession. There is one Bar Association in each province and in major towns. Lawyers can settle their retributions but contingent fees cuota litis are expressly prohibited.

Main Bar Associations:. Barcelona Bar Association. Madrid Bar Association. Consell dels Il. They also receive and deliver documents from and to court. As a side note, this figure does not exist in all E. Notaries perform a public service conferring authenticity to documents. To develop their function they have a delegated power from the State. In this sense, they depend from the Ministry of Justice and they join the profession after passing an official examination. The profession is regulated by Law May 28, , and by Decree June 2, A Doctorate in Law is required after obtaining the Law degree.

Historia del Derecho Romano. Joan Miquel. Derecho Privado Romano. Derecho Romano. Historia e Instituciones. Tirant lo Blanch. Derecho Constitucional. Temas de Derecho Constitucional. Derecho Internacional Privado. Parte Especial. Julio D. Centro de Publicaciones. Ministerio de Justicia. Alejandro J. Instituciones de Derecho Comunitario. Lecciones de Derecho Comunitario Europeo. Curso de Derecho Administrativo. Derecho Administrativo.

Derecho Procesal Civil. Derecho Procesal Penal. Derecho Jurisdiccional. Proceso Penal. Derecho Penal. Parte General. Santiago Mir Puig. Curso de Derecho Penal. Directed by Manuel Cobo del Rosal. Marcial Pons. Boix Reig, E. Orts Berenguer, J. Carbonell Mateu, J. Curso de Derecho Civil. Manuel Albaladejo. Fundamentos del Derecho Civil Patrimonial.

Elementos de Derecho Civil.


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Derecho Mercantil. Curso de Derecho Mercantil. Manuel Alonso Olea. Derecho del Trabajo. Manual de Derecho del Trabajo. Derecho Sindical. Instituciones de la Seguridad Social. Derecho de la Seguridad Social. Sistema de la Seguridad Social. Curso de derecho Financiero y Tributario. Sociedades Mercantiles Commercial. Social Labor. Fiscal Tax. Republic's action is brought under Civil Code Article , 31 L.

Aqueduct seeks to escape this logic by pointing out that Article , which creates the right to restitution, creates in the same sentence the right to seek annulment of the contract. The entire article reads,. When the nullity of an obligation has been declared, the contracting parties shall restore to each other the things which have been the object of the contract with their fruits, and the value with its interest, without prejudice to the provisions contained in the following sections. This article provides both for a judicial declaration that a contract is void and also creates a right to restitution, both of which claims may be asserted in the same action.

Ruiz Serramalera, Derecho civil: El negocio juridico, n. We reject this argument because the words "could have been instituted" do not refer to the type of procedural convenience that Rule Rather, those words, as previously pointed out, refer to the existence of a noncontingent legal claim or cause of action. The commentators state that even when a party seeks both a declaration that a contract is void and restitution in the same action, there can be no restitution without the declaration of invalidity; only when the contract is declared void, and not before, does the obligation to provide restitution arise.

Prior to that declaration, Republic had only a contingent claim, an "expectation" of being able to ask for restitution. Therefore, in our view, the courts of Puerto Rico would hold that, since Republic's restitution claim was not perfected until , the statute of limitations did not begin to run until that time. Aqueduct claims that the district court erred in refusing to allow it to relitigate the claim that the contract is void. The court found that such relitigation was barred by the doctrine of res judicata both under Puerto Rico Code of Civil Procedure, Article , 32 L.

Aqueduct notes, however, that for this latter article states that. Aqueduct argues that there is not sufficient "identity" between Republic and Mechanic. That is to say, in Aqueduct's view, the suits involve different parties. Republic, as an assignee of Mechanical's rights under its contract with Aqueduct, is Mechanical's "legal representative. Guasp, Derecho procesal civil, tome I, 3d ed. See, e. Benet, 25 P. Santos, 54 P. This is obvious once one realizes that the Spanish word that the official translation renders as "legal representative" is "causahabientes," a word more properly translated as "successor in interest.

Code of Civil Procedure, Article , supra. We note that, in cases of discrepancy "the Spanish text shall be preferred. Since principles of res judicata make the prior judgment binding upon Aqueduct, we need not consider the issues Aqueduct raises about collateral estoppel, for it seems clear that res judicata, under the law of Puerto Rico, binds Aqueduct upon such questions as the validity of its contract with Mechanical. Herce Quemada, Derecho procesal, vol. I, 4th ed. Guasp, supra at Aqueduct seeks to use the finding of "identity of parties" as a two-edged sword. If Republic is the same party as Mechanical, it argues, then the first suit "Mechanical v.

Aqueduct" must have been precisely equivalent to the suit "Republic v.

Aqueduct ;" and, therefore, Republic is barred from bringing its restitution claim because it is a claim that "could have been litigated and adjudicated in a previous suit between the same parties and about the same cause of action"-i. Mercado Riera v. Mercado Riera, P. That is precisely what the Supreme Court of Puerto Rico held. Thus it is not an issue that could have been litigated in the first suit-at least not unless Republic joined the first suit. But, joinder by Republic was permissive, not mandatory. See Rule And, we see no reason to make joinder mandatory in effect by barring a subsequent suit under principles of res judicata.

Moreover, there is nothing illogical about saying that Republic is the same party as Mechanical, except as to issues arising out of the assignment relation itself. And nothing in Mercado Riera cited by appellants, holds to the contrary. Aqueduct makes two evidentiary points. The testimony was related to how much money Mechanical had spent on the project and thus to how much restitution Aqueduct owed.

Federal Rule of Evidence b 1 specifically states that when a "declarant is unavailable as a witness," a court need not exclude as hearsay his "testimony given as a witness at another hearing of Moreover, in light of the affidavits presented by Republic and Spinelli stating that Spinelli could not come to Puerto Rico for the second trial, the district court's finding that he was "unavailable" within the terms of Rule b 1 was within the scope of the judge's discretion.

See Bailey v. Southern Pacific Transportation Co. Southern Pacific Co. Second, Aqueduct claims that certain of the transcripts admitted were not properly attested. Aqueduct admitted, however, at Republic's request that the exhibits in question were "genuine" and "authentic," and it cannot now escape the effects of that prior admission. Aqueduct finally claims that the district court was wrong to require it to pay Republic interest on the expenses that Mechanical had incurred from the time that Mechanical first brought its original suit.

Aqueduct points out that Rule That provision has been authoritatively interpreted to require an interest payment, as a substantive element of restitution, at least from the time that a suit to void the contract was brought. See J. See also A. Terre, Droit civil: Les obligations, 2d ed. Stark, Droit civil: Obligations, We are aware of nothing in the Commonwealth's Rule of Civil Procedure Republic raises one question: Was the district court wrong in calculating interest at 6 percent?

Should the court instead have calculated interest at 10 percent-a rate closer to the prime interest rate during the years for which interest was awarded? The district court used the 6 percent figure because Article of the Civil Code of Puerto Rico specifically states, " u ntil another rate is fixed by the Government, interest at the rate of six percent per annum shall be considered as legal.

And, the commentators, interpreting the restitution provision under which interest was awarded, namely Civil Code Article , have reasoned persuasively that the interest payable under this Article is "to be established in accordance with the legal rate. The single exception which the Code arguably provides-when the parties have bargained for a different rate-Civil Code, Article , 31 L. Republic, noting "the unfairness" of an interest rate so much lower than what it might have earned on its money had it possessed it at the time, seeks to circumvent this language in several ways.

First, it claims by analogy to the law of admiralty and certain other common law doctrines, that the interest rate under Article is left to the discretion of the trial court. In interpreting the Civil Code of Puerto Rico, however, authoritative commentaries on analogous provisions of the Spanish Civil Code are more persuasive than common law analogies, which are inapplicable but for purposes of comparative analysis. American International Insurance Co. Employers Fire Insurance Co. Diaz de Yanez, D. As just mentioned, the relevant commentary states that interest in a restitution case is to be fixed at the legal rate.

Second, Republic argues that the government has effectively fixed "another rate. The first of these statutes, however, deals with the "Maximum interest to be earned by bonds, notes and other obligations of the Commonwealth" and the second of these concerns "maximum rates that shall be demanded or received" in certain other transactions. Emphasis added. Buil v. Banco Popular de Puerto Rico, 69 P.

Garcia, 61 P. Neither of them concerns the legal rate of interest for purposes of court actions. It is perfectly reasonable for governmental regulation of contractual interest rates to take the form of a maximum. But the legal rate, "a rate established by the law"-L. Diez Picaso y Ponce de Leon, Fundamentos de derecho civil patrimonial, vol. I, -by its nature will presumably be a certain fixed rate.

At least historically this is so. I, , 6th ed. Had the Commonwealth's Legislative Assembly intended these acts to deal with the legal interest rate, it is unlikely it would have used the word "maximum," it is unlikely it would have referred only to transactions where the legal rate is not at issue, and it is likely that it would have referred to that portion of Article that gives the government specific authority to change the legal, 6 percent, rate if it wishes to do so. In a word, we do not believe the acts to which Republic points are designed to change the legal rate of interest.

Third, Republic points out that under Commonwealth Law No.