DOCSLIB.ORG

Methodological Basis of Legal Personality of the State (Civil Aspects) Anatoliy Kostruba

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Methodological Basis of Legal Personality of the State (Civil Aspects) Anatoliy Kostruba Methodological Basis of Legal Personality of the State (Civil Aspects) Anatoliy Kostruba To cite this version: Anatoliy Kostruba. Methodological Basis of Legal Personality of the State (Civil Aspects). Journal of Legal, Ethical and Regulatory Issues, 2017, 20 (1), pp.1-11. 10.5281/zenodo.3701577. hal-02503145 HAL Id: hal-02503145 https://hal.archives-ouvertes.fr/hal-02503145 Submitted on 9 Mar 2020 HAL is a multi-disciplinary open access L’archive ouverte pluridisciplinaire HAL, est archive for the deposit and dissemination of sci- destinée au dépôt et à la diffusion de documents entific research documents, whether they are pub- scientifiques de niveau recherche, publiés ou non, lished or not. The documents may come from émanant des établissements d’enseignement et de teaching and research institutions in France or recherche français ou étrangers, des laboratoires abroad, or from public or private research centers. publics ou privés. Journal of Legal, Ethical and Regulatory Issues Volume 20, Special Issue 1, 2017 METHODOLOGICAL BASIS OF LEGAL PERSONALITY OF THE STATE (CIVIL ASPECTS) Anatoliy V Kostruba, Vasyl Stefanyk Precarpathian National University ABSTRACT Article deals with the investigation the legal nature of the state. It was found that the state is the allied unity of settled people provided with primary power of primacy. The essence of the state lies in creation of conditions for the development of the civil society, implementation of shared interests of members of society. The state is a means of social compromise of members of civil society. It appears not only as a form of provision of such social compromise, but also as an active and equal member of the relevant legal relations. The ability of the state to be an active participant in social communications configures its natural right that can and should be implemented. As a result, the subject gets legal opportunities for its activities and transformed into a legal person the nature of which is revealed through the signs of interest, will of the subject and its individual separation. Since the state is a union of interests of persons united in the unified social organism for their support, the fact that the legal entity as a legal person synthesizes in itself not only characteristics peculiar to the corporation, but also characteristics peculiar to the state as a legal person is justified. Implementation of the civil capacity of the state is revealed through the institution of representation. The justification of universal character of legal capacity of the state is given. It is proved that the subject of legal relations is not the specified one, the nature of relations in which it stands is also not specified. The volume right of an individual, who is granted with certain powers from the principal, is specified. The special capacity is not peculiar to the state as a legal person, but to a relevant government authority that implements its own competence, for which it has the rights and obligations, exercises the authority, including private-legal sphere. Keywords: State, Legal Capacity, Capacity, Legal Person, Legal Entities, Government Authorities, Legal Personality. INTRODUCTION One of the modern problems of domestic legal science is the discourse of the private legal measurement of the nature of the state. The study of the nature of the state from the earliest times is the subject of the search for the humanities, including philosophy and presented in the treatises of Plato, Aristotle, Nicolas Machiavelli, Hugo Grotius, John Locke, Jean-Jacques Russo, Alexander Radishchev, Emmanuel Kant, Georg Hegel, Karl Marx, etc. Since then, despite the lack of unity in the views of scientists regarding its legal nature and sources of origin, the state is seen as a form of organization and functioning of political power. At the end of the nineteenth century, bourgeois order is established in Europe. There is a transition to a capitalist socioeconomic formation with its complex infrastructure of industrial relations. The movement for expanding political and social rights is strengthening. As a result, it Legal regulation of the relationship between a citizen and the state in the CIS countries 1 1544-0044-20-SI-1-110 Journal of Legal, Ethical and Regulatory Issues Volume 20, Special Issue 1, 2017 receives its development pluralism of views on the essence of the state, formed the diversity of its theoretical and methodological foundations and conceptual categorical apparatus. However, the vector of the study of the essence of the state remained unchanged. Today it is in the wake of the general theoretical direction of its public-legal nature. In this context, the state is considered in the works of Onischenko, Petryshyn, Rabinovich, Skakun, Skrypnyk, Tymoshenko and others like that. However, in our opinion, the investigated, the determined role of the state is not exhausted. At the present stage of development, in the state, in addition to political ones, there is a group of social phenomena that are of paramount importance in civil society. Interpersonal interaction integrates social connections, ensures the unity and harmonization of social structures in which the state is perceived as a subject of development of civil society. Therefore, the disclosure of the phenomenon of the state through the use of private legal instruments is a matter of scientific interest and is of vital importance at the present stage of the development of legal science in UkraiSne. A similar opinion is expressed by Professor Kuznetsov, who points out that "…Re-thinking of the essence and role of the state and the law, the ratio of these important institutions in modern society, the awareness of the need for qualitative changes in society itself, which will allow him to qualify as a civilian, make relevant research in this sense the phenomenon of civil law…" (Kuznetsova, 2014). And then "…It is precisely because of the institutes, structures and mechanisms of civil law as the rights of the private in society that those principles, ideas and principles that make this society civil…" (Kuznetsova, 2014). The achievement of the above is ensured by a transdisciplinary approach to the clarification of the legal nature of the state, which is characterized by the transfer of established cognitive schemes to another plane of scientific traditions, which are the subject of research and the purpose of this scientific publication. The State is a Subject of Public Relations The solution to this task opens to us the position of the dualistic theory of the state of Jellinek (1908), who considers the legal structure of the state not only from the point of view of legal science, but also the position of sociology. Scientist denies the objective nature of the state, explores it as a phenomenon of subjective consciousness. The state, in his opinion, is not a universal concept and belongs both to the sphere of the essential and to the sphere of the proper. Hence the polysystem approach to understanding the state: sociological and legal. The state is a legal category, the content of which is disclosed through social. According to the first approach, the state is considered as the sum of social relations between people in the plane of individual consciousness. According to Jellinek (1908): "…The state is provided with the primary authority of the rule of allied unity of settled people. The natural individual volitional acts of these people are transcendental to the union unity. Individual acts that are a means of expressing this unity depart from persons who generate and attribute to union unity. Persons, who are deprived of their own will, since they create such a will, become the instrument of this will, that is, the organs of the whole. If the synthesis of the human mass in the target unity is logically inevitable, it is no less logical that the will of the body is the will of the union unity…" (Jellinek, 1908). Legal regulation of the relationship between a citizen and the state in the CIS countries 2 1544-0044-20-SI-1-110 Journal of Legal, Ethical and Regulatory Issues Volume 20, Special Issue 1, 2017 Scientist changes the vector in the understanding of the class nature of the state towards sociocentrism. Civil society as a self-organized system should not feel the influence of the state, not due to its own expression of will. The essence of the state, according to Jellinek (1908), is to create conditions for the development of civil society, in the implementation of the solidary interests of members of society. The state is a means of social compromise of members of civil society. It is wise that, in a sociological context, the state cannot be an objective abstraction whose existentialism is not conditioned by the activity of the community. Civil society is in the constant interaction of its members among themselves. The conflict of interests of its members is a factor in the development of society through the presence of dissipative self-organization. In turn, with the help of the legal criterion of theory, Jellinek (1908), we get rid of its excessive politicization; we give the state a functional character of the means of realizing its social essence. The state is considered through a set of features due to its social nature. Substrate concept of the state is objective social phenomena that occur in the civilian environment. Such a design allows us to consider the state in another social progression. The state has no organizing role. It does not serve as the foundation of civil society. The state is an instrument for the formation and proper development of such a society. The indicated convincingly indicates that the state has a derivative value from the will of the individual. It is an artificial formation, the emergence of which is due to the realization of the social interests of individuals or groups of individuals.
Load more

Recommended publications
  • Corporate Governance
    CCCorporateCorporate Governance Carsten Burhop Universität zu KKölnölnölnöln Marc Deloof University of Antwerp 1. General introduction Since the late 1990s, a series of papers published in leading economics and finance journals contain evidence for a significant impact of institutions on financial and economic development (e.g., Acemoglu et al., 2001, 2005; La Porta, Lopez-de-Silanes, Shleifer, and Vishny – LLSV henceforth – 1997, 1998, 2000; La Porta, Lopez-de-Silanes, Shleifer – LLS henceforth – 1999, 2008). According to this literature, high-quality institutions cause financial development. In turn, financial development is a driving force behind economic growth. The historical legacy seems to play an important role in the relationship between the financial development of countries, their current institutions and their past institutions. Indeed, prominent contributions demonstrate a strong positive correlation between legal origins (common law is considered to be better than civil law) and three further elements: first, current indices of the rule of law (Acemoglu et al., 2001; Beck et al., 2003); second, financial development (LLSV 1997, 1998; Beck et al, 2003); and third, the dispersion of share ownership and the separation of ownership and control (LLS 1999). In general, shareholders are supposed to have the strongest protection in common-law countries, followed by German-style civil- law countries. Shareholder protection is the weakest in French style civil law countries. In contrast, secured creditors are supposed to be best protected in the German legal system. Consequently, common-law countries have relatively high numbers of listed firms and of initial public offerings and a relatively high ratio of stock market capitalisation to GDP.
    [Show full text]
  • The Law, Corporate Finance, and Management
    The Law, Corporate Finance, and Management v. 1.0 This is the book The Law, Corporate Finance, and Management (v. 1.0). This book is licensed under a Creative Commons by-nc-sa 3.0 (http://creativecommons.org/licenses/by-nc-sa/ 3.0/) license. See the license for more details, but that basically means you can share this book as long as you credit the author (but see below), don't make money from it, and do make it available to everyone else under the same terms. This book was accessible as of December 29, 2012, and it was downloaded then by Andy Schmitz (http://lardbucket.org) in an effort to preserve the availability of this book. Normally, the author and publisher would be credited here. However, the publisher has asked for the customary Creative Commons attribution to the original publisher, authors, title, and book URI to be removed. Additionally, per the publisher's request, their name has been removed in some passages. More information is available on this project's attribution page (http://2012books.lardbucket.org/attribution.html?utm_source=header). For more information on the source of this book, or why it is available for free, please see the project's home page (http://2012books.lardbucket.org/). You can browse or download additional books there. ii Table of Contents About the Authors................................................................................................................. 1 Acknowledgments................................................................................................................. 5
    [Show full text]
  • What Is Corporate Law?
    ISSN 1936-5349 (print) ISSN 1936-5357 (online) HARVARD JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS THE ESSENTIAL ELEMENTS OF CORPORATE LAW: WHAT IS CORPORATE LAW? John Armour, Henry Hansmann, Reinier Kraakman Discussion Paper No. 643 7/2009 Harvard Law School Cambridge, MA 02138 This paper can be downloaded without charge from: The Harvard John M. Olin Discussion Paper Series: http://www.law.harvard.edu/programs/olin_center/ The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract_id=####### This paper is also a discussion paper of the John M. Olin Center’s Program on Corporate Governance. The Essential Elements of Corporate Law What is Corporate Law? John Armour University of Oxford - Faculty of Law; Oxford-Man Institute of Quantitative Finance; European Corporate Governance Institute (ECGI) Henry Hansmann Yale Law School; European Corporate Governance Institute (ECGI) Reinier Kraakman Harvard Law School; John M. Olin Center for Law; European Corporate Governance Institute Abstract: This article is the first chapter of the second edition of The Anatomy of Corporate Law: A Comparative and Functional Approach, by Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda and Edward Rock (Oxford University Press, 2009). The book as a whole provides a functional analysis of corporate (or company) law in Europe, the U.S., and Japan. Its organization reflects the structure of corporate law across all jurisdictions, while individual chapters explore the diversity of jurisdictional approaches to the common problems of corporate law. In its second edition, the book has been significantly revised and expanded.
    [Show full text]
  • THE DUAL SYSTEM of CIVIL and COMMERCIAL LAW We Are in the Habit Rf Contenting Ourselves with a Division of Law Into Two Categories, the Civil and the Criminal
    THE DUAL SYSTEM OF CIVIL AND COMMERCIAL LAW We are in the habit rf contenting ourselves with a division of law into two categories, the civil and the criminal. The civil we again livide into law and equity, and these further into a number of more or less inter-related subjects. When we commence the study of the laws of Christian nations other than Great Britain, the Scandinavian'countries, Switzerland and ourselves, we find that a large part of the law which we call civil' and a small part of the criminal have separated themselves off or grown up independently and form a distinct body known as commercial law. In the whole field of law, where are we to place commercial law? The separation of law into crimes, contracts, associations, negotiable instruments, torts, trusts, etc., cramps a larger and more scientific division. The student who looks into foreign treatises or has studied at a Continental law school is impressed with the fact that such a minute subdivision as we are accustomed to make is there regarded as of little importance. He finds law divided into natural and positive. Natural law is the eternal principles of justice and equity, based upon human nature and knowing no political boundaries. Positive law is national law, based on the principles of natural law and approximating them as closely as circumstances and history permit. Positive law is divided into ecclesiastical and civil law; the civil, into public and private. Public law is divided into international and national law, the latter of which includes political, administrative, penal and procedural law.
    [Show full text]
  • Fraud Litigation in Pennsylvania
    FRAUD LITIGATION IN PENNSYLVANIA Doc. #531047v.1 - 11/21/2001 1:08 am FRAUD LITIGATION IN PENNSYLVANIA By: Louis C. Long Robert W. Cameron Meyer, Darragh, Buckler, Bebenek & Eck 2000 Frick Building Pittsburgh, Pennsylvania William B. Mallin Patrick R. Kingsley Eckert Seamans Cherin & Mellott 600 Grand Street, 42nd Floor Pittsburgh, Pennsylvania 10K11018 Doc. #531047v.1 - 11/21/2001 1:08 am FRAUD LITIGATION IN PENNSYLVANIA Copyright 1993 National Business Institute, Inc. P.O. Box 3067 Eau Claire, WI 54702 All rights reserved. These materials may not be reproduced without permission of National Business Institute, Inc. Additional copies may be ordered by writing National Business Institute, Inc. at the above address. This publication is designed to provide general information prepared by professionals in regards to subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, this publication should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought. Doc. #531047v.1 - 11/21/2001 1:08 am FRAUD LITIGATION IN PENNSYLVANIA TABLE OF CONTENTS I. INITIAL CONSIDERATIONS ....................................................................................... 1 II. PLEADINGS AND MOTION PRACTICE.................................................................... 3 A. SPECIFICITY REQUIREMENTS....................................................................................
    [Show full text]
  • Methodological Basis of Legal Personality of the State (Civil Aspects)
    Journal of Legal, Ethical and Regulatory Issues Volume 20, Special Issue 1, 2017 METHODOLOGICAL BASIS OF LEGAL PERSONALITY OF THE STATE (CIVIL ASPECTS) Anatoliy V Kostruba, Vasyl Stefanyk Precarpathian National University ABSTRACT Article deals with the investigation the legal nature of the state. It was found that the state is the allied unity of settled people provided with primary power of primacy. The essence of the state lies in creation of conditions for the development of the civil society, implementation of shared interests of members of society. The state is a means of social compromise of members of civil society. It appears not only as a form of provision of such social compromise, but also as an active and equal member of the relevant legal relations. The ability of the state to be an active participant in social communications configures its natural right that can and should be implemented. As a result, the subject gets legal opportunities for its activities and transformed into a legal person the nature of which is revealed through the signs of interest, will of the subject and its individual separation. Since the state is a union of interests of persons united in the unified social organism for their support, the fact that the legal entity as a legal person synthesizes in itself not only characteristics peculiar to the corporation, but also characteristics peculiar to the state as a legal person is justified. Implementation of the civil capacity of the state is revealed through the institution of representation. The justification of universal character of legal capacity of the state is given.
    [Show full text]
  • The Law of Civil Responsibility DRAFT
    Introduction to the Laws of Kurdistan, Iraq Working Paper Series The Law of Civil Responsibility DRAFT Iraq Legal Education Initiative (ILEI) American University of Iraq, Sulaimani Stanford Law School Kirkuk Main Road Crown Quadrangle Raparin 559 Nathan Abbott Way Sulaimani, Iraq Stanford, CA 94305-8610 www.auis.ed.iq www.law.stanford.edu CIVIL RESPONSIBILITY 1. INTRODUCTORY CONCEPTS Picture a busy neighborhood full of restaurants and shops on a Saturday night. Hundreds of people walk along the sidewalks, and many cars fill the streets. Ibrahim is driving one of these cars home from work. Ibrahim is a safe driver. He is not driving fast or talking on his mobile phone, and he is watching for other cars and people. But as Ibrahim continues driving down the street, he has a heart attack. His car swerves off of the street and onto the sidewalk. As the people on the sidewalk jump out of the way, Ibrahim’s car continues moving until it crashes into a popular café. Ibrahim’s car is badly damaged and so is the café. The car has destroyed several tables and left a large hole in the front wall. The café owner thinks the repairs will require the café to close for several weeks. A few people in the café also have injuries from diving out of the way of the car. Who should pay to repair the café and to send its customers to the hospital? The law of civil responsibility, found in the Iraqi Civil Code, governs obligations among parties that result from their actions.
    [Show full text]
  • The Formation of Contracts & the Principles of European Contract
    Pace International Law Review Volume 13 Issue 2 Fall 2001 Article 5 September 2001 The Formation of Contracts & the Principles of European Contract Law Maria del Pilar Perales Viscasillas Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Maria del Pilar Perales Viscasillas, The Formation of Contracts & the Principles of European Contract Law, 13 Pace Int'l L. Rev. 371 (2001) Available at: https://digitalcommons.pace.edu/pilr/vol13/iss2/5 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. THE FORMATION OF CONTRACTS & THE PRINCIPLES OF EUROPEAN CONTRACT LAW Maria del Pilar Perales Viscasillas* I. Introduction ....................................... 371 II. Freedom of Form: No Consideration or Cause ..... 373 III. Construction of the Contract: The Parol Evidence Rule and Merger Clauses .......................... 374 IV. Formation of the Contract: Exchanging an Offer for its Acceptance? ....... ... 376 V. The Offer: Essential Elements ..................... 377 VI. The Offer: Withdrawal, Revocation, and Expiration ......................................... 381 VII. Irrevocability of the Offer ......................... 383 VIII. Acceptance ........................................ 386 IX. Counteroffer ....................................... 388 X. Battle of the Forms ................................ 389 XI. Written Confirmation ............................. 391 XII. Conclusion of the Contract: Time and Place ....... 394 I. INTRODUCTION The Principles of European Contract Law (PECL)' dedi- cates Chapter 2 to the formation of the contract; that is, to regu- late the process of the formation of the contract mainly through the exchange of two declarations of will: the offer and the ac- ceptance.
    [Show full text]
  • English Law, Roman Law, and Handwritten Wills
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1994 The Transmission of Legal Institutions: English Law, Roman Law, and Handwritten Wills Richard H. Helmholz Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard. H. Helmholz, "The Transmission of Legal Institutions: English Law, Roman Law, and Handwritten Wills," 20 Syracuse Journal of International Law and Commerce 147 (1994). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE TRANSMISSION OF LEGAL INSTITUTIONS: ENGLISH LAW, ROMAN LAW, AND HANDWRITTEN WILLS R.H. Helmholz* Dean Michael Hoeflich, organizer of this Conference and founder of the Roman Law Society of America, has been a leader in tracing the tangled, continuing, and important relationship between Roman law and Anglo-American law. Through a series of articles, he has lifted the cur- tain on more than one of the facets of this subject, always showing his readers something of value about the inner nature of that relationship.' This article attempts to follow his lead by looking at one particular as- pect of the law of testamentary succession, the validity of unattested, handwritten wills. In one sense this is a very small topic, perhaps wor- thy of only a footnote or two in treatises on the law of wills. However, the subject does provide an excellent example of the much larger phe- nomenon of the transmission of institutions from one legal system to another.
    [Show full text]
  • How Should the Old Testament Civil Laws Apply Today
    Liberty University Law Review Volume 2 Issue 3 Article 12 March 2008 How Should the Old Testament Civil Laws Apply Today Joe M. Sprinkle Follow this and additional works at: https://digitalcommons.liberty.edu/lu_law_review Recommended Citation Sprinkle, Joe M. (2008) "How Should the Old Testament Civil Laws Apply Today," Liberty University Law Review: Vol. 2 : Iss. 3 , Article 12. Available at: https://digitalcommons.liberty.edu/lu_law_review/vol2/iss3/12 This Article is brought to you for free and open access by the Liberty University School of Law at Scholars Crossing. It has been accepted for inclusion in Liberty University Law Review by an authorized editor of Scholars Crossing. For more information, please contact [email protected]. HOW SHOULD THE OLD TESTAMENT CIVIL LAWS APPLY TODAY? Joe M Sprinklet I. INTRODUCTION What is the role of the Mosaic civil laws today under the new covenant? There have been a number of Christian approaches to this question: the Reformed approach, dispensational approaches, the approach of theonomy (Christian Reconstructionism), and finally the principalizing approach. Each will be discussed in turn. II. THE APPROACH OF REFORMED THEOLOGY TO THE LAW The first approach to the law, an approach that remains influential, is that of Reformed theology. A. The Approach of Reformed Theology to the Law Defined Reformed theology's approach to the law is spelled out in the Westminster Confession of Faith (A.D. 1646) in Chapter XIX "Of the Law of God."' This approach begins by dividing the laws into three categories: moral, ceremonial, and civil. The moral law refers to the broad moral principles of the law, especially as expressed in the Decalogue (Ten Commandments).
    [Show full text]
  • RICO Civil Fraud Action in Context: Reflections on Bennett .V Berg G
    Notre Dame Law School NDLScholarship Journal Articles Publications 1982 RICO Civil Fraud Action in Context: Reflections on Bennett .v Berg G. Robert Blakey Notre Dame Law School Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Civil Law Commons, and the Criminal Law Commons Recommended Citation G. R. Blakey, RICO Civil Fraud Action in Context: Reflections on Bennett .v Berg, 58 Notre Dame L. Rev. 237 (1982-1983). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/170 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg G. Robert Blakev* I. Introduction /Tjhe ofle of all theJudges is always to make such. construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasionsfor continuationof the mischief,.. and to addforce andlife to the cure and remedy, according to the true intent of the makers of the Act pro bono publico. Hdon's Case, 76 Eng. Rep. 637, 638 (Ex. 1584). In Bennett v. Berg,' the United States Court of Appeals for the Eighth Circuit, as a matter of "first impression in the Circuit Courts of Appeals," 2 faced and resolved a number of significant issues in the construction of Title IX, the Racketeer Influenced and Corrupt Or- ganizations (hereinafter "RICO") provisions of the Organized Crime Control Act of 1970.
    [Show full text]
  • The Interaction of Civil Law and Commercial Law, 42 La
    Louisiana Law Review Volume 42 | Number 5 Special Issue 1982 The nI teraction of Civil Law and Commercial Law Enrique Lalaguna Domínguez Repository Citation Enrique Lalaguna Domínguez, The Interaction of Civil Law and Commercial Law, 42 La. L. Rev. (1982) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol42/iss5/10 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE INTERACTION OF CIVIL LAW AND COMMERCIAL LAW Enrique Lalaguna Dominguez* DISTINCTION AND INTERACTION BETWEEN CIVIL LAW AND COMMERCIAL LAW In the Spanish law, civil law and commercial law appear to be two distinct disciplines. Legislative autonomy permits one to define with clarity the norms, or rules, inherent in each, which justifies the separation of the study of these disciplines into the scientific and didac- tic orders. In reality, a vital interaction between civil law and com- mercial law can be perceived. There are, certainly, legal relations that are subjected in an ex- clusive manner to the province of one body of legislation or the other. The basic juridical relations of the state, the condition and legal capaci- ty of people, family relations, and relations within succession law are genuine juridical civil relations. Such relations that derive from the bill of exchange, those that exist in companies, and those that arise from financial transactions are typical commercial relations. In addi- tion to these, which are clearly framed in the civil or commercial legislation, there are others whose effects are produced in an area where both bodies of legislation overlap.
    [Show full text]