Midterm Flashcards
Private Law
Rules governing the relationships between individuals. It englobes Civil Law and Commercial Law.
Civil Law
Is the essential nucleus of Private Law. It stands for generality, enormity and residual character.
Commercial Law
Englobes Corporate Law, trademarks, etc…
Convenio di Roma
Regulates commercial contracts mainly in Europe.
Ius Civile
Law of the roman citizens.
Ius Commune
Common legal culture in Europe.
Natural Law
Is the philosophy that certain rights, moral values, and responsibilities are inherent in human nature, and that those rights can be understood through simple reasoning.
The problem is that these moral standards and values change over time.
E.g Nuremberg Trials and UN Universal Declaration of Human Rights.
Rule of Law
Principle in which no person, government official or entity is above the law.
What are the implications of the Rule of Law?
- Supremacy of the Law.
- Separation of powers: legislative, executive and judicial.
- Equal subjection to Law.
- Protection of citizen’s rights and freedom.
- Publication of the Law.
- Substantial and procedural quality of Law.
Organic Acts
Regulate certain matters establish in the Constitution and are passed in the Parliament with absolute majority.
Ordinary Acts
Regulate any other matters which are different from those established in the Constitution. They are regulates by Organic Acts and are passed in the Parliament with simple majority.
Royal-Decree Acts
Are used in events of extraordinary and urgent necessity. They are drafted by the government but must be approved by the Parliament.
Royal Legislative Decree
Are the drafting to redrafting of legal texts with a minimum legal context.
Regulations
Bodies of rules approved by the government aimed to develop prior acts.
General Principles of Law
Basic rules whose content is very general and abstract, sometimes reducible to a maximum or simple context.
Precedent (Case Law)
A legal case that establishes a principle or rule. This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts.
Codification
The process of collecting and restating the Law of a jurisdiction in a certain subject, forming a legal code.
What are the problems of Classic Legal Interpretation?
- In the strict sense, e.g. unclear provision.
- Gaps, e.g. non-existent provision.
- Evolutive interpretation, e.g statute who’s meaning changes while its terms remain constant.
What is the legal interpretation of the Spanish Civil Code?
Two parameters:
- Proper meaning (wording).
- Others such as:
- Context (Systematic Criterion).
- Legislative background (Historical criterion).
- Social reality (Sociological Criterion).
- Spirit and Purpose of the rules (Theological Criterion).
Analogy (Gaps in the Law)
An analogy denotes that similarity exists in some characteristics of things that are otherwise not alike. In a legal argument, an analogy may be used when there is no precedent (prior case law close in facts and legal principles) in point.
Which requirements need to be met for Analogy in Spanish Law?
- No legal consequence has been set for the particular event.
- Similarity between both.
- Same ratio.
Equity (Gaps in the Law)
Is a legal system for obtaining a fair result when existing laws don’t provide a solution. These may only be used when allowed by the legislation, e.g. to determine the amount of compensations.
Entry Into Force
Is the process by which legislation, regulations, treaties and other legal instruments come to have legal force and effect.
Repeal
To repeal something — usually a law, ordinance or public policy — is to take it back. When a government decides to get rid of an ordinance or law, that ordinance or law is repealed.
