Topic 2; Spanish Political System (2017)Apunte Inglés
Vista previa del texto
Introduction to Business Law
Spanish Political System
SPANISH POLITICAL SYSTEM
Spanish Constitution established Spanish political structure. It's the supreme rule of the
whole legal system of Spain. It the construction doesn't give a power to a certain
person/organization, it doesn't have it then.
The form is Parliamentary monarchy, so the most important decisions are made by the parliament, and the monarch has some powers given to him by the constitution. (Article 1.3) It's a bicameral system: we don't have just the congress, but also the senate. Congress is the one that takes the most important decisions, and the senate is the "guiding hand above them", for some decisions, the most important ones, an agreement must be found between both. Generally, the main legislative power is the congress.
The parliament is there to represent all Spanish people. The 5 most important functions: 1. Legislative: what can you do and what can you not do 2. Budgetary: he decide how to use the taxes 3. Control of the Government: The have the power of impeachment; they can get rid of the prime minister.
4. Parliament also authorizes the international obligations of the State (e.g. Spain in Irak 2003: 188 votes PP v. 16) : International treaties are decided by the parliament, not the government.
5. Parliament nominates candidates for other constitutional organs (e.g.
Constitutional Court, Ombudsman): they decide the person that defends you from the state if its violates the human rights. If you are not nominated you cannot be named.
Structure: All powers have to be written in constitution. Parliament is regulated by articles 66 to 80 of Spanish Constitution and by the own internal regulations of each Chamber: Regulation of the Congress, February 24, 1982 Regulation of the Senate, May 3, 1994 In this regulation we can find code of conduct (how the speakers of parliament are supposed to act, who speaks, how long the decision is supposed to take…), which make the Constitution less general.
The Parliament is divided in two chambers (article 66.1 of the Spanish Constitution): The Congress of Deputies (Congreso de los Diputados) : article 68 of the Spanish Constitution The Senate (Senado): article 69 of the Spanish Constitution Different institutions regarding Roles: • CONGRESS: exclusive roles in 1 Introduction to Business Law Spanish Political System • INVESTITURE (establishing in office) and censure prime minister. (The prime minister mostly comes from the political party with the majority, so this isn't a problem usually.) • Ratification of decrees • LEGISLATIVE: producing the main rules of the system • BUDGETARY: authorizing the expenses of the State • CONTROL OF THE GOVERNMENT : elects the president or the prime minister, and he appoints all of the other ministers.
• Parliament also authorizes the international obligations of the State and proposes candidates for other constitutional organs • SENATE: they cooperate with the congress on the most important issues, or they act like a safety belt for the congress, they can veto a proposition, they can cancel it. the veto doesn't always stop the law, but is a firm no to the legislative proposition as the way that that congress made it.
Each chamber has its own organs: • • • • A President A Board (Mesa) Board of Spokespeople (Junta de Portavoces ) A representative from the Executive, chaired by the President of the Chamber Both Chambers work in Plenary Sessions and in Commissions (article 75.1 Spanish Constitution). The problem of plenary session is that is just too many people. that's why we have commission, is a narrowed group of ~20 people (technically of any party), and they decide on something, and when they decide they put it to vote in the plenary session.
Then, the Plenary Session decides is the law is ok or not.
ELECTION SYSTEMS • • • • Original law for Political Reform 1976 and Decree law of March 1977 Today: Organic Law 5/1985, June 19, del Régimen Electoral General (LOREG) and by Real Decreto 605/1999, de 16 de abril, de regulación complementaria de los procesos electorales.
Congress: proportional representation, Hondt Rule (how the shares in the parliament are distributed. Its beneficial towards majority parties, because it overrepresents them. There's a three percent rule: any party that hasn't got the 3% of the votes you don't exist for the congress, you cannot get in the country. You determine the seats by dividing them) o Congress comprises of 350 Deputies o 52 Electoral districts: provinces + Ceuta + Melilla Each district appoints at least two Deputies (C and M one each) The remaining 248 are assigned to districts according to their population (see D’Hondt Method in continuing) Senate: they are elected in a different way. It's limited vote.
o Each voter casts three votes for individual candidates of their province (50 provinces established in 1833 following the centralized French model).
2 Introduction to Business Law o o Spanish Political System The four candidates with most votes are elected.
Provinces receive equal representation regardless of their population.
LEVELS OF GOVERNMENT Spain has three different levels of government 1. Central government 2. Autonomous communities government 3. Municipal government Spain has a lot of population, so giving all the power to the central government is not useful. That's why we have smaller governments, closer to the people. The limits and domains of each one of the governments are specified in the Spanish Constitution.
LEGISLATIVE PROCESS ARTICLE 87 OF THE SC LEGISLATIVE INITIATIVE: means simply proposing a law, proposing something that's supposed to be the law. It's not only in the hands of the government or the parliament.
1. Government: projecte de llei; Usually the government sees a problem, thinks a way to solve it, and then they try to make it a law.
1. Council of Ministers 2. Congress – exposition of motives and antecedents 3. Senate – veto or introduction to amendments 4. Congress – may or may not accept amendments 2. Congress and Senate: proposició de llei 3. Parliament of the Autonomous Communities 4. Popular initiative: 500.000 signatures 3 Introduction to Business Law Spanish Political System The need for the law comes from the administration under the government, those are the ones that create the law. Then, it's not a political decision. The pure project of law it's not really political. Then, when the project gets through the council of ministers, they decide if it agrees to what they think, and finally, in the congress and senate it becomes really political, they decide if it's something that they can support in respect of what did they talk about in the election.
ORDINARY LEGISLATIVE PROCESS: It's made for ordinary laws. The bills proposed by Government or the proposals of law issued by the Senate are discussed at Congress. Plenary session is conducted in order to either be • • • Accepted Table vetoed → they don't want the proposal Have table amendments → they like the law, but they will like to introduce some changes to it Proposals of law from the Congress and from popular initiative pass directly to the next step – Senate. Popular initiative doesn't pass through the congress, because since congress represents the people, it makes no sense for them to ban them.
The bill or the proposal of law passes to the study of a Commission. The Commission (a specific group inside of parliament) designates a “Ponencia” who will prepare a brief about the text (Dictamen). Then, it's discussed and voted in Plenary Session.
Once the text is approved by the Congress the bill or proposal of law is submitted by the President to the Senate. If Senate rejects the text (by an absolute majority (of all the votes possible, more than half the senate rejects it)) the text goes back to Congress which can: • • • Approve the bill or proposal of law by the same majority required at the Senate → 176 positive votes (350/2 +1); ignoring what the senate says Wait for two months and approve the text by a simple majority; ignoring what the senate says In both cases the text is the one approved initially by Congress. Congress can preclude the veto placed by the Senate.
If Senate introduces amendments, Congress only has to accept or reject them by a simple majority → majority of the votes that are made, not the total votes If text is accepted without any modification the text is ready to be sanctioned by the King The King shall sanction the laws approved by the Parliament within the period of 15 days and shall promulgate them and order their publication (article 91 SC); only a formal requirement today. there's a delay between the publication of the law and the moment that the law starts to take place, so the population can start to act according to the population (Vacatio legis) → usually it's 20 days, but exceptionally it can be made that the law starts to enter in force in the same day, especially when it's just small changes Sources of law come from legislative power and executive power (Topic 1); customs, general principles of law and jurisprudence (this just helps us to interpret the rules) 4 Introduction to Business Law Spanish Political System Legal Hierarchy in the Spanish legal system: Constitution>Organic Laws>Laws>Ordinary Laws>Regulations>Orders Each one must be according to the ones that come before, and everything must be in accordance with the Constitution.
LEGISLATIVE POWER Legislative power is the one writing the constitution, it's own rules. This is allowed because citizens, as the state, chose the parliament, and we as citizens have the rules to decide the rules that are going to rule us.
NORMS: • • • Constitution/amendments Regional Constitutions (Estatuts d’Autonomia) Acts o Ordinary acts (Lleis) o Organic acts (Lleis Orgàniques) o International Treaties and Conventions The Constitution is really hard to change, because there's a special procedure that makes it really hard to change. Moreover, international treaties cannot be signed by autonomous communities.
Laws come from the State Legislature and Autonomous community parliaments. The relationship between state level and autonomous communities is special, because in some instances autonomous communities can act freely and in some instances they have to act according to the Spanish rule. Articles 148 and 149 SC: distribution of domains between the State and the Autonomous Communities ORGANIC LAW: is different of the normal laws because of the procedure in which they are made → they can be made by obtaining absolute majority in the congress. The substance is the same, but the procedure is different. They must be made this way because of the subjects they treat: change in the constitution, giving power to the autonomous communities. Citizens cannot propose organic laws (no public initiative.) ARTICLE 148 OF THE SPANISH CONSTITUTION (1) The Self-governing Communities may assume competences over the following matters: (1) Organization of their institutions of self-government (2) Changes in municipal boundaries within their territory and, in general, functions appertaining to the State Administration regarding local Corporations, whose transfer may be authorized by legislation on local government.
(3) Town and country planning and housing.
(4) Public works of interest to the Self-governing Community, within its own territory (…) (20) Social assistance 5 Introduction to Business Law Spanish Political System (2) After five years, the Self-governing Communities may, by amendment of their Statutes of Autonomy, progressively enlarge their powers within the framework laid down in section 149. (they may, not they will. If they do, they have a limitation of the article of 149) So; it decides what things can the autonomous regions can or cannot do: taxes (which are the same and which aren't), Registro Mercantil, house planning, public services done in Catalunya the autonomous community has power over them, he has power over social assistance… ARTICLE 149 OF THE SPANISH CONSTITUTION (1) The State shall have exclusive competence over the following matters: (1) Regulation of basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and in the fulfillment of their constitutional duties (if something is made in Catalonia, it must be also made for all the people living in there, whether they are Catalan or not→ lots of people move to Catalonia because their conditions are better) (2) Nationality, immigration, emigration, status of aliens, and right of asylum.
(3)International relations (Problem: if we decide to be independent, international relations are assigned to Spain, so Catalonia cannot make treaties with other countries nor the UE) (4) Defense and the Armed Forces (5) Administration of Justice (There's no Catalan court, because it's Spain's domain) (6)Commercial, criminal and penitentiary legislation; procedural legislation, without prejudice, to the necessary specialties in these fields arising from the peculiar features of the substantive law of the Self-governing Communities Autonomous Communities can organize: • Their own INSTITUTIONS (Article 147.2 SC) • Their TERRITORY (Articles 148.1.2. and 152.3 SC) • Their FINANCIAL ACTIVITY (Article 156.1 SC The Spanish Constitution allows Autonomous Communities to have: • Executive power • Legislative power • NO JUDICIAL POWER → there are no Catalan courts, there are only Spanish Courts in Spanish Territory, so the interpretation of Catalan law is made by Spanish courts LAWS ("hierarchy") Fist we have the constitution (the "god law"), then we have the Organic Laws, tht are made by the state, and finally the Ordinary Laws that are made by state and autonomous parliaments If you have a organic law that doesn't go in accordance with a normal law, they are regularly in the same level, so you need a court to decide which one is more important.
This will rarely happen, because the subject that they usually treat aren't the same → organic law have "more important" subjects than normal law, and because of that, very rarely we will have a subject that can be both regulated by normal law and organic law.
Also, there's no public initiative for an organic law.
6 Introduction to Business Law Spanish Political System SPANISH CONSTITUTION First Spanish constitution 1812: the Constitution of Cadiz – short life because in 1814 the absolutist king Ferran VII came to power. He abolished the constitution, and from that moment, what the king said is the law. Was briefly reintroduced during two short periods during the XIXth century, but Franco came and he abolished it again.
Inspired by • US constitution 1787 → because of the merchant contact between US and Spain • Declaration of the Rights of Man and of the Citizen, France 1789.
Republican constitution 1931 • • • • • • First time separation of powers o Executive powers: president of the republic (6 years mandate) o Legislative powers: Congress – no Senate o Judicial powers: supreme court and lower courts Laic state Fundamental rights and freedoms Creation of the tribunal of constitutional rights Autonomous regions Universal right to vote (women) until 1933 → there was an economic crash (Black Friday 1929), that made totalitarism grow, because people were tired of the old story, they were sick of being hungry → fascism grows With the separation of powers we are trying to keep the separation of state objectified.
• • • • Civil war1936 – 1939 Franco dictatorship regime 1939 -1975 o No separation of powers o No political parties o No election o Confessional state – Catholic → people were taught to believe something, made a social norm, made easier for Franco to establish his power Political transition: reintroduction of a constitutional monarchy, King Joan Carles I Spanish Constitution of 1978 o Spain as a social and democratic state o Parliamentary monarchy o Values: freedom, justice, equality and political pluralism Market freedom King: head of state with no executive powers o State powers: Legislative: Congress + Senate Executive power: Government → Prime minister Judicial power: judges CONSTITUTIONAL RIGHTS Constitutional rights = Fundamental Rights 7 Introduction to Business Law Spanish Political System Social Rights • Right of education: right to free and compulsory education • Workers: belong to trade unions, right to strike Under the Spanish constitution you have the right of free compulsory education → kindergarten is actually not guaranteed for everyone, because for example, in Barcelona there are not enough public places. BUT they are not breaking the constitution. Economic and social right are sets of right under the constitution that they are not enforceable because they represent the general principles of law and not a fundamental right; a real law. On the other hand, our civil rights and the political rights are enforceable.
Civil Rights • • • Right to life Right to physical and moral integrity Right to personal security Political Rights • • • Right to vote Right to belong to political parties Right of association The constitution says that you have those right, and then there are laws passed to make this rights enforceable. If someone violates one of those right, you don't go to court and say "Constitution gives me the right to sue", you'll sue with the specific law.
PROTECTION OF FUNDAMENTAL RIGHTS IN SC 1978 • • Previously, ordinary courts CONSTITUTIONAL COURT: recurs d’ampar o Declaration of nullity, act of resolution → who can violate you civil rights? The state, and everyone who has power invested in them by the state: administration, police… So, usually, the courts are objective o Recognition of right or public liberties o Reinstatement of the integrity of the right and freedom Enforcement of a right is not always easy → making sure that our right are respected. The fundamental rights that are given to you by the constitution can be demanded by trial court. You can only go to the constitutional court if first you go to a trial court and ask for protection, then you must be denied protection by a higher court and finally you can go to the constitutional court.
ORGANIC LAWS Specific type of statute. They are regulated by article 81 SC and are different from ordinary legislation in two ways: 1. The subject matter of the regulation a. Exercise of fundamental rights and public liberties b. Statutes of Autonomy c. Electoral system 8 Introduction to Business Law Spanish Political System d. Others provided for in the Constitution must be issued by an organic law (Article 81.1 SC) i. Ombudsman (Defensor del Pueblo, Article 54 SC) ii. Council of State (Consejo de Estado, Article 107 SC) iii. Constitutional Court (Tribunal Constituional, Article 165 SC) iv. Popular legislative initiative (Article 87.3 SC) → not that a popular thing can make an organic law, but the way that popular initiatives can end in a law 2. Organic laws require an absolute majority of the Congress (Article 81.2 SC) ORDINARY LAW 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.
In the room of the congress, there are 180 people deciding. They have to adapt one organic law and a regular law. For the Organic law you would need a minimum of 176 positive votes and 4 negative ones, and for the regular law you'll need 91 positive votes and 89 negative.
REGULATION (REGLAMENTO) • • • • Lower status.
Any general rule dictated generally by the Government (state, autonomous communities, municipal).
Regulations may o Regulate matters without legislative coverage or develop an existent law o 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: o Decree (Decreto) from the Council of Ministers o Order (Orden) from the Ministers or Demegate Commissions o Instruction (Instrucción) and Orders of Regulation (Circulares) from inferior authorities and members of public administration Once a law is passed, the government is the one that passes the regulations. They regulate matters that the legislation doesn't cover, or they can develop more the law. Usually, they just specify in greater detail the laws made.
CUSTOMS A custom is basically a social norm, a tradition. They are non written law.
• • Non-written law Custom needs the existence of practice and the existence of an opinion iuris that is the general conviction about the obligatory character of a customary rule.
Practice means that we always do the same thing when in that situation. It also must be generally accepted as a rule.
9 Introduction to Business Law • • • Spanish Political System It is only applicable by a judge if there is no applicable law and cannot be contrary to morals or public law. When deciding on a case but there's no applicable law, judges use customs. So, when there's a Legal Void, a judge can use the customs.
Custom against legislation (contra legem) is forbidden by the article I of Civil Code.
A custom cannot be against law in general, not moral, not civil, not criminal.
Whoever claims its application must prove its existence and content and scope.
You would have to say "always this thing in this situation is always made like this and I can prove it with this and this" When are customs applicable? 1. Source only when there is no applicable law to the case (Article 1.3 of Spanish Civil Code) 2. Law determines the conditions by which customs are a source of law 3. Custom is not overridden just because there is a new custom Business is not regulated in great detail, because there are a lot of quick changes in the economy and the way of making things, so it must be a general thing that can be applied no matter what changes are made in business. If it as really regulated, it cannot be development.
GENERAL PRINCIPLES OF LAW They are the oldest social rules in the community, stating the basic rules in which the community in question is organized. They are basic rules reflecting the convictions of a community in respect to its organization.
General principles of law permeate the legal system, for instance Article 1.1 SC and they also inform other sources.
APPLICABLE ONLY in absence of law and custom applicable to the case.
Examples: Dignity and respect to the person Duty to compensate whoever we caused harm JURISPRUDENCE In civil law systems it does not formally constitute a source of law: in civil law systems judges do not create law, just interpret it. Is the case law of courts, basically. In civil law systems, it's not formally a course of law, we don't create law by judgments, we just interpret it. In countries with common law, jurisprudence actually makes rules, but in countries with civil law they just interpret it.
Jurisprudence: 1st Section of the Supreme Court ONLY! → it means that if the Supreme Court makes an interpretation of a law, everyone must make the same interpretation, but this is the only case. Even in this case, there must be some requirements: 1. STABILITY: requires a well defined doctrine 2. Doctrine must be fundamental to the resolution of the case 3. There needs to be at least two opinions in the same direction 10 Introduction to Business Law Spanish Political System 4. There must be an IDENTITY between the precedent (the facts of the case that the Supreme Course made the interpretation must be equal to those of the case that the interpretation wants to be applied to) and the case the doctrine wants to be applied to PUBLIC LAW VS PRIVATE LAW Public Law Defines the state or governs the relationship between the state and its citizens. Tends to be more general, may involve multiple parties and interests. More likely to be prospective (looking forward). In some cases goes beyond awards of monetary damages (e.g. imprisonment).
Private Law Governs relationship between citizens. Often retrospective, concerned with resolving specific disputes about past conduct between identified parties. Rarely has public policy implications.
KINDS OF RULES • • • SUBSTANTIVE: they give rights and obligations, say which is the punishment, etc o Constitutional law o Civil code o Commercial Code (Codi Mercantil) o Penal Code o Labor law o Administrative Code o EU law PROCEDURAL: it regulates how to do something, how to conduct o Rules of civil procedure o Rules of criminal procedure IMPERATIVE V. DEFAULT RULES → default rules says that if you didn't say anything in the contract, then you have to do what the law says, and imperative rules are rules that must always be respected, that cannot be contradicted in your contract THE EXECUTIVE POWER • • • GOVERNMENT o Responsible of: Internal and foreign policy Civil administration Armed forces Defense of the state Legislative powers: law decrees and regulations Composition: o President o Vice-president o Ministers o Appointed and separated by the president of the government 11 Introduction to Business Law Spanish Political System THE JUDICIAL POWER Two different papers: • • PROCEDURAL RULES SUBSTANTIVE LAW So, how do I get to a decision in the Superior Court of Justice? First going to the municipal level, and they denying my right and the appeal.
Different jurisdictions: • • • • Civil Criminal Administrative Labor BASIC STRUCTURE OF THE SPANISH JUDICIAL SYSTEM THE COMMON LAW SYSTEM •Example: US JUDICIAL SYSTEM The judiciary in the US has two major components: • • FEDERAL COURTS STATE COURTS Base of each system: state and federal trial courts, courts of original jurisdiction. You atart by here, they supervise the fact finding process.
• • • • Responsible for applying the law to the facts of the case; they supervise the factfinding process. → presenting and interpreting the evidence found The district courts serve as general trial courts of limited jurisdiction; they can hear cases only if there is an express grant of jurisdiction by Congress Beneath the district court judge in the hierarchy are bankruptcy judges and magistrates.
In several instances the jurisdiction of the district courts is concurrent with that of the state courts. This means that a person has the right to bring an action either in state court or in federal court (hey can decide. this is the exception(?)) Appellate Courts: state and federal appellate jurisdiction (you have on the state and on the federal level), you use them when you are denied you rights at the first level, They do not find new facts, the search for the mistakes of the decision in the first level. They want to find in the law was applied correctly in the trial court. If you find a new fact, most of times you are not allowed to show them.
• Correct mistakes of law made by courts beneath them; no fact-finding responsibilities State Supreme Court: discretionary power to review the decisions made below. They can decide if a case is worth of hearing (discretionary power) • US Supreme Court: court of appellate jurisdiction; consider cases from the lower federal courts and state courts. They do not hear new cases.
12 Introduction to Business Law Spanish Political System Out of their decision making comes binding precedents.
Typical State Court System: first you start on small claim courts in it's a small things, or a municipal court or Justice of the peace court. For this three courts are only small things.
Then you have state courts of General Jurisdiction, with different courts that treat different cases. Here there is a Probate Division and they decide whether the inmates must stay in prison or go home. Also, states if you are going to jail or not if it's your first offense. Then, you go to the State Appellate court, where you give your appeal if you don't agree with the smaller court, and finally ,if you don't agree with the decision, your last chance of being "successful" in state level is State Supreme Court (*important) Federal Court System: the most important one is U.S. Supreme Court, the highest power in the US legal system.
THE TWO LEGAL SYSTEMS: CIVIL LAW AND COMMON LAW There are constitution in both systems.
Constitutions • • • • The US Constitution is the supreme law of the land The US Constitution establishes the federal government and enumerates its powers Powers not given to the federal government are reserved to the states →EU is not a federation, is something specific. In EU the powers not given to the EU under the constitution (Treaty of Lisbon) are reserved, and at the same type aren't reserved, to the states. In some cases, both EU and the countries have the power.
This will be explained later.
State constitutions establish state governments and enumerate their powers CODIFIED LAW: STATUTES AND ORDINANCES Majority of laws in the common law is Case System, but there are some exceptions: Statutes are enacted by Congress and state legislatures Ordinances (regulations basically) are enacted by municipalities and local government agencies, the local government say how this things are going to be applied and the specifieties of the law.
They establish courses of conduct that must be followed by covered parties → soft law.
Corporate governance are the laws that say how the companies is going to be directed, and this is not a official law, but there is a "soft law" that gives recommendation, but companies are pushed to agree with it, because if they don't they have to explain why they do not do it and that makes their stock value fall.
EXECUTIVE ORDERS: • • Issued by the president and governors of states. The governor is a "president of a state", like a president of an autonomous community.
They regulate the conduct of covered parties 13 Introduction to Business Law Spanish Political System Donald Trump has been putting Executive Orders, like the one in immigration that banned people from 7 countries. The executive order, if they go against the constitution, the Constitutional Court can ban them, but they need time, is not something quick.
ADMINISTRATIVE AGENCY REGULATIONS AND ORDERS Administrative agencies are created by the legislative and executive branches of government. They may adopt administrative regulations and issue orders that regulate the conduct of covered parties. They do more specific rules, but they have to obey the law.
JUDICIAL DECISIONS Federal and state courts decide controversies In doing so, they issue decisions that state the holding of each case and the reasoning used by the court in reaching its decision. They have to state the facts, why it applies and how. It has to have a reglamentation, because if there isn't one you should immediately appeal.
SOURCES OF LAW US Statutes passed by Congress Administrative regulations Common law Judicial precedent Equitable remedies PRIORITY OF LAW IN STATES IN THE US • • • • US Constitution → The highest State constitutions: highest state law State statutes > over state regulations ; statutes are the basis, the law, and regulation must be according to them, making them more specific.
Valid state law > over local laws LEGAL HIERARCHY OF FEDERALLAW IN THE US • • • The US Constitution and treaties (international) > over all other laws Federal statutes > over federal regulations → same reason of federal law Valid federal law > over conflicting state or local law CIVIL LAW AND COMMON LAW: MAIN DIFFERENCES • • • • • • Sources of law Role of judges Selection of Judges Juries Characteristic of processes Main approach 14 ...