LESSON 1 Flashcards
Jurisdiction (concept)
To judge and enforce a judgments according to what the law says.
How many branches does the State have? Name them
It has 3 branches, legislative, judicial and executive.
Explain the evolution of the private justice (autotutela)
- Autotutela
- Lex tallionis
- Cultural and legal development
- State involvement.
PROCESS:
1. In primitive times, we had the system of “self-protection” or “autotutela”, which involved the use of physical strength and violence. It was often hard for people to see the proportionality between the right that was infringed and the persons reaction to the infringement.
2. With time, this system became more sophisticated and the “lex tallionis” was introduced (ojo por ojo, diente por diente). Even though this first advancement was violent still, it introduced an important legal concept: proportionality.
3. Cultural and legal development lead to the protection of individual rights and interests by a third party, with systems such as arbitration, judicial settlement, etc. This new method worked with the voluntariness of the parties involved, since a third party could only intervene when those involved in the conflict decided to use this method to resolve their conflict.
4. This finally lead to the State intervening and prohibiting the “autotutela”, “private justice” or “self-protection”. It is the State who assumes the exercise of conflict resolution and establishes bodies in order to do so, recognizing fundamental rights in this matter.
Art. 455 CP, prohibition of the “autotutela”
The use of “private justice” is a crime known as “realización arbitraria del propio derecho” and it is punished with a fine of 6 to 12 months.
The use of weapons is an aggravating factor.
Process (concept)
The method used by the State for conflict resolution
Jurisdiction (concept)
The power to solve conflicts, it means “decir el Derecho”, “lo que dice el Derecho en casos en particular”.
What is the labor of the Legislative branch of the State?
It creates legal norms.
What is the labor of the Jurisdictional branch of the State?
It applies the legal norms.
Mention the three differences between the Legislative branch and the Jurisdictional branch
- Abstractness.
- Generality.
- The consequence of the act.
- The acts that come from the legislative branch of the State are abstract, since they regulate future hypotheses. On the contrary, an act from the jurisdictional branch of the State is NOT abstract, since it can only be applied to conflicts that have already originated.
- The acts that come from the legislative branch are general, they can be applicable to any case. The acts from the jurisdictional branch are NOT general, since they are applied to a particular single case.
- The acts from the legislative branch create new rights and duties, and the ones from the jurisdictional branch do not (case-law and precedent are not sources in the Spanish legal system).
Administrative branch of the State
It focuses on achieving specific purposes that are necessary to the community, for example: having good education.
Mention the differences between the Administrative branch and the Jurisdictional branch
- Independence.
- Impartiality.
- The resolution (res iudicata).
- The Courts are independent because a higher judicial body cannot give orders to a lower judicial body on how to solve a specific case or what to do in particular situations, hierarchy only exists because sentences of some organs can be appealed before other organs. However, in the administrative branch, superior bodies CAN give orders to inferior ones.
- The Courts have to remain impartial during a process, if the judge has any relation to the case or the parties involved, he must abstain or “recusar” (recuse, refuse). The administration only focuses on their own achieving specific goals, so it does not matter if they have a special interest in the case at hand.
- The resolutions dictated by the Courts CANNOT be reviewed by other State bodies (with the exception of the Constitutional Court), their resolutions are “Res iudicata” (cosa juzgada). On the other hand, in an administrative proceeding the resolution is NOT “res iudicata” (cosa juzgada) and it can be appealed to the Courts, since the activity of the Administration is always under the supervision and control of the Courts.
Name the two fundamental principles of jurisdiction
- The Principle of Unity of Jurisdiction.
- The Principle of Exclusivity of Jurisdiction.
Explain the principle of Unity
Art. 117.5 CE -> basis of the organization.
Art. 3.1 LOPJ -> Prohibits establishing special Courts NOT expressly provided for in the Constitution.
Art. 137 CE (Title VIII) -> Principle of Territorial Unity of Jurisdiction.
- Art. 117.5 CE states that the principle of Unity is the basis for the organization and functioning of the Courts (judicial bodies), the law shall regulate the exercise of military jurisdiction strictly within military limits and in cases of State of Siege (Estado de sitio, “martial law”) with accordance to the principles of the Constitution.
- Art. 3.1 of the LOPJ establishes that jurisdiction is unique (hay una única jurisdicción) and it is exercised by the Courts and Tribunals that this same law provides, without prejudice to the jurisdictional powers that the Constitution recognized to other bodies. It prohibits the establishment of special courts NOT expressly provided for in the Constitution. Art. 3.1 LOPJ has sole jurisdiction for overseeing this act.
- Art. 137 CE (Title VIII), establishes that the State is divided and organized in Comunidades Autónomas, who have their own parliaments and governments (Parlamento autonómico, gobierno autonómico), as well as their own legislation and administration in accordance to the Organic Law that created them.
However, there is NOT a judicial organization of the CCAA, but a judicial power of the STATE in the CCAA.
The CCAA can assume certain competencies, such as the administration of the administration of justice (providing for the materials and/or personal that the Courts need to carry out their functions) and they also have their own Superior Court of Justice.
However, they may NOT assume the essential core of the administration of Justice, since it only belongs to the State.
Explain the Principle of Exclusivity
Art. 117.3 CE -> positive manifestation
Art. 117.4 CE -> negative manifestation
- Art. 117.3 CE (positive manifestation) establishes that the State monopolized jurisdiction. The State assumes the exercise of jurisdictional functions and creates bodies for this purpose, therefore prohibiting NON-State bodies from exercising jurisdictional functions.
The exception to this rule is the Institution of Arbitration, in some matters, parties can agree that a NON-State third-party resolves their conflict, and the resolution (Laudo in Spanish) has to be abided by the parties voluntarily.
The difference between a “laudo” and a resolution from a Court is: the resolution from the Courts can be enforced by the judges, but a referee cannot enforce a “laudo”. If a “laudo” is not being abided voluntarily by the parties, they must go before a Court to enforce it.
- Art. 117.4 CE (negative manifestation) establishes that, while judicial bodies can only exercise jurisdictional functions, it is possible for them to assume NON-jurisdictional functions, as is the case with the “Registro civil” and the so-called “involuntary jurisdiction” (when a judicial body must intervene even if there is NO conflict). These NON-jurisdictional functions are recognized in the CE.
Which types of liability/responsibility belongs to the members of the judiciary?
- Criminal: it is imposed when the members of the Court perpetrate crimes during their performance.
- Disciplinary: since the members are public servants, they can subjected to disciplinary proceedings.
