PART 1 (CHAPTER 1) Flashcards
The LAW
system of rules regulating the conduct of individuals within a society, assisted by a set of mechanisms put in place to ensure its enforceability
The law exists because…
Ubi homo, ibi societas (where there is man, there is a society)
Ubi societas, ibi jus (where there is a society there is the Law)
The state
politically organized community, established on a specific territory, which is exclusive to it characterized by being independent and sovereign
Key elements of a state
The people
The territory
The political power
Religion
religions set rules that should be followed by its believers (cannot be enforced)
Moral
aims at orienting individuals’ conduct to practice good
Social rules of conduct
rules regarding the social conduct of individuals within the society
Natural law
claims that humans are born with a certain moral compass that guides behaviors
Positive law
system of legal rules and principles that are enforced by the government
Key elements in law:
A system
Legal provisions
Enforceability
Legal Systems
The Law is not a mere set of rules, these rules are part of a system
Legal systems: common law
- relies on previous court decisions (precedents) to guide future rulings
- judges interpret laws based on past cases
- used in countries like UK, US, Canada and Australia
Legal systems: civil law
- relies on written laws (statutes) rather than court decisions
- laws are typically codified and cover many aspects of daily life
- used in countries like France, Germany, Japan
Statutes
are legislative acts that contain rules of conduct. They are composed of legal provisions
Legal provisions
all statutes, laws, ordinances, rules, regulations, judgments, orders and decrees of any Governmental Entity
Main characteristics of legal provisions
- Generic
- Abstract
- Mandatory
- Breakable
- Enforceable
Legal provisions (Generic)
basic rules that apply to many different situations. They’re written broadly so they can cover a lot of different cases
Legal provisions (abstract)
described in a broad and non-particular manner, they do not contemplate particular cases
Legal provisions (mandatory)
issue a command that should be complied
Legal provisions (breakable)
they apply to free people, therefore there is a possibility that someone may choose to break the law
Legal provisions (enforceable)
supported by a system with the means to enforce them
National legal provisions
apply to the entire territory
regional legal provisions
apply within the autonomous regions
local legal provisions
apply within local municipalities
Perfect legal provisions
sanction illegal acts by rendering them invalid or null and void
More than perfect legal provisions
in addition to the invalidity of the act, a penalty is established
Less than perfect legal provisions
establish a penalty but do not invalidate the illegal fact
Imperfect legal provisions
legal provisions without a sanction
Direct legal provisions
provide the solution to the case
Indirect legal provisions
created to solve legal problems, they indicate the applicable law
Enforceability (Sanctions)
unfavorable consequences imposed by law upon the offender as a result of an infringement of a law. Sanctions are imposed by the state
TYPES OF SANCTIONS
(i) Compulsory
(ii) Reconstructive
(iii) Compensatory
(iv) Preventive
(v) Punitive
Compulsory penalties
intended to guarantee that, after an infringement, the law is complied with (Periodic penalty payment, Right of retention)
Periodic penalty payment
the Court may order the debtor to pay a monetary amount for each day of delay in complying with his
obligations or for each offense
Right of retention
the right to retain possession of
certain things owned by another person until the possessor’s claim against the
owner has been satisfied
Reconstructive sanctions
seek to reconstitute the situation exactly as it was prior to the infringement as if the infringement never occurred (Reconstitution in natura, Specific execution)
Specific execution
a contract has been signed and all the terms and conditions have been satisfied
Specific damages
If the debtor is under the obligation to replace the damaged good, they must compensate
Compensatory penalties
aims to create a situation that is equivalent to the situation that would exist if the breach did not occur
Punitive penalties
aim to impose suffering upon the offender and to reprove his conduct
Types of punitive penalties
Criminal penalties
Civil penalties
Disciplinary sanctions
Sanctions related to administrative offenses
Criminal penalties
Fines or imprisonment
Civil penalties
involves monetary payment, or a court order to do or not to do something
Disciplinary sanctions
like a warning, such as probation, suspension, dismissal, etc.
Sanctions related to administrative offenses
Non-submission of tax returns/statements within the legal deadlines
Preventive penalties
aim at preventing future violations, thus in addition to imprisonment, supplementary penalties may also apply
4 entities exercising sovereignty in Portugal
the parliament, the court, the president, the government
Sovereign
people/groups having the power to make rules
