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Do you have a family member in Spain with judicially modified capacity? Do you need to protect the estate in Spain of that legally disqualified person? In the following lines, our English speaking litigation lawyer in Marbella will give an approach to the judicial procedure, to be carried out in Spain, for the protection of the estate of people with disabilities.

Legal regulation in Spain to protect the estate of a person withdisabilities in Spain

The regulation established in the Spanish legal system comes to culminate in Spanish Law 41/2003 of November 28, on the protection of the property of persons with disabilities. This Spanish law was born as a result of the constitutional requirement of article 9.2 to promote the real and effective participation of all citizens and their involvement in political, economic, cultural and social life, in relation to the provisions of article 49 of the same constitutional text.

 

This Act contains a set of provisions relating to the assets of persons with disabilities.

 

It determines the norm as beneficiaries, these being people who suffer from a mental handicap equal to or greater than 33%, or physical or sensory handicap greater than 65%.

 

Welex, your trial lawyer in Spain! Contact our law firm in Marbella now for any litigation issues in Spain.

For its constitution, it may be carried out by parents, guardians or custodians, the de facto guardian, as well as any person who has a legitimate interest, as well as the disabled person himself, who may request the constitution by simultaneously offering a contribution of goods and rights sufficient for this purpose.

 

The assets will be constituted in a public document or in a judicial resolution. This document must include the initial inventory of assets and rights, the rules of administration and control, and any other provisions deemed appropriate. The contributions may also determine, at the time of their contribution, the destination of such property or rights or, where appropriate, their equivalent after the assets have been extinguished in accordance with Article 6.

The formalisation and limitation mentioned above shall be taken into account in the civil, property and commercial registers, where applicable.

Regarding the form of such protection, Title II of Law 15/2015, of July 2, on voluntary jurisdiction, configures the files of voluntary jurisdiction in matters of persons, dedicating Chapter VI to the protection of the assets of persons with disabilities, comprising 6 articles, although the latter are intended for a procedure of access to personal privacy and self-image.

Its scope of application is the same for the constitution of the patrimony; the approval of contributions; the appointment of the administrator; the establishment of exemptions and the requirement to obtain judicial approval to carry out acts of administration, taxation or others related to the goods and rights of the patrimony; the substitution of the administrator; the change of the rules of administration; the establishment of special measures for the control; the adoption of precautions; the extinction of the protected patrimony and any others related to this patrimony.

The first instance Court in Spain of the domicile or residence of the person with a disability shall be competent to hear this procedure, and the Public Prosecutor’s Office alone shall be empowered to promote it, without prejudice to the fact that the latter may also act on the basis of a complaint.

The application, processing and resolution of the file, once initiated, will be processed according to the rules of the oral procedure after which the judge will issue the appropriate resolution, with the content required by the rule. This resolution may be appealed in both cases, with the exception of the appointment of the administrator.

All of the above demonstrates the technical complexity of the constitution, administration and extinction of the assets of persons with disabilities in Spain. Our procedural lawyers in Spain of our firm WeLex, will assist you in the constitution of the patrimony as well as in its administration and extinction, accompanying you in its management.  

 

The jurisdiction of judges and courts in Spain in the criminal field

Have you suffered any crime in Spanish territory? Have you witnessed a criminal act being committed in Spain and you don’t know where the facts may be investigated? In the following lines, the English speaking criminal lawyers at our offices in Marbella will give you a first approximation to the jurisdiction, determining the body in charge of the investigation of the facts that could have criminal characteristics.

Do not hesitate to contact Welex, your criminal law firm in Spain. Approach our English speaking criminal lawyers in Marbella, the heart of the Costa del Sol, Spain.

Matters of jurisdiction are an essential element in the investigation of a criminal act, because knowledge of the case by a judicial body that is not called upon by law to carry out an investigation or to prosecute and rule on the case could render that procedure null and void, since it violates the provisions of Article 117 of the EC, as well as Article 24(2) of the EC, and the right of the ordinary judge predetermined by law, which implies that the judge must determine the criminal act before it is committed, outlawing what are known as ad hoc courts.

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The ordinary judge predetermined by law in Spain

The Spanish Constitution configures the judicial power as an independent power, being the only power of the State to which the name of power is given.

The Spanish judicial system configures as one of the essential pillars of the Administration of Justice the determination of the ordinary judge predetermined by the Spanish law, as a preposition of the jurisdiction and arising directly from the separation of powers.

Going deeper into this idea, the Spanish Constitution configures the judicial power as an independent power, signed in Title VI of the Spanish Constitution

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Preliminary rulings in the criminal field in Spain

The Spanish law of criminal prosecution introduces preliminary rulings as a key issue regarding the complexity of criminal offenses in Spain

Jurisdiction for the sole purpose of repression

By Welex, your criminal lawyer in Marbella!

The jurisdiction of the criminal courts in Spain is one of the most important procedural matters, since its non-observance can have such a relevant consequence as the violation of the constitutional guarantee of the ordinary judge predetermined by law in article 24 of the Spanish constitution, sanctioning its non-observance with the nullity of the act.

In this scenario, and in front of the complexity of the criminal definitions, which on many occasions make it necessary to define the regulatory elements of the criminal definitions, the need arises for the judicial body to deal with these elements solely for this procedure. This question is covered by the Spanish law of criminal procedure in Chapter II, Title I of Book I, under the heading “Preliminary rulings”, to which the law devotes only 5 articles.

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The defender of a disappeared person in Spain

Do you have a family member who is missing in Spain who has assets or rights? Are there interests in Spain of a missing relative whose business cannot be disregarded without serious prejudice?

Our law firm in Marbella can assist you in the appointment of a legal defender in Spain so that he meets the legitimate rights of this person.

Contact the lawyers of Welex, your law firm in Marbella specialized in litigation in Spain.

The objective situation of any person that has gone missing from his last domicile or residence without having any more news from them causes the need to articulate a protection mechanism regarding the legitimate rights and interests of both the missing person and third parties, by ensuring traffic and legal security in businesses that depend on them.

The civil code in Spain includes the assumption of disappearance in article 181, book one, title eight, first chapter including this last article under the heading of the declaration of absence and its effects.

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New eviction law in Spain

Do you have a ‘squatter’ in your home in Spain? Then take into account the reform in law 5/2018 in relation to the process of eviction for non-payment. This blog is written by Welex, litigation lawyers in Marbella, Málaga, Spain.

The procedure of eviction for non-payment in Spain , which was already established in nineteenth-century regulation in the law of civil procedure of 1881, provides for a procedure to evict the person who was in situation or under the condition of tenant at sufferance (Article 1565 LECA).

By way of illustration, the Spanish Supreme Court has defined the legal concept of occupancy without a lease because there was no legal definition (STS judgments of April 13, 2011 and June 13, 2006), stating the following:

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Bankruptcy proceedings in Spain: All you need to know?

Our law firm in Marbella can answer all your questions about Spanish bankruptcy proceedings. First, it is important to note that Spanish law tries as much as possible to help individuals and companies that are going through complicated situations meet their payment obligations.

If it is foreseen that the Spanish bankruptcy procedure will take a long time, that is to say, that there is no short-term solution, a so-called creditors’ meeting will be requested. This enables a judge to intervene and assign an administrator to be in charge of mediating between a business and its creditors in order to find a solution to end the situation of the outstanding debts.

What is the aim of bankruptcy proceedings in Spain?

The creditors’ meeting is the tool to help, or at least to try to help, a company stay in business. A company with outstanding debts will search for ways to pay their creditors and it will try to stay viable.

How does the creditors’ meeting work?

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