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Lesson-2-H.pdf
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Commercial Law I
2nd Degree in Law
law School
University of Granada
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Lesson 2: evolution and current profiles of commercial law.
1. Evolution of Commercial Law as special Law.
A) The generalization of Commercial Law.
The generalization of its institutions, which were born as exclusive to
merchants and came to be applied to subjects who do not have that quality. Commercial
Law ceases to be the special law applicable to a series of subjects.
B) Reduction of the scope of Commercial Law.
C) The commercialization of Civil Law.
Another way of understanding generalization is with the commercialization of Civil
Law, the transfer to the field of Civil Law of principles and legal institutions born in
Commercial Law.
D) The unification of private law. a) The
unification of national Private Law.
The unification of Civil Law and Commercial Law has the added difficulty of the
diversity of competences according to our Constitution, it corresponds to the
State on one matter and another.
b) The unification of European Private Law.
Efforts in the political and economic field to achieve a single market have been
frustrated by the existing diversities between the internal Law of the different
Member States, which has translated into advancing in European legal integration
without ruling out a European normative unification.
Private initiatives for the unification of European regulations, the discrepancies are
centered in relation to the legislative model adopted to carry out its unifying proposal.
The oldest working group is the Commission on European Contract Law.
Since 1992 work has been done on the preparation of a draft European Code of
contracts.
A significant advance on the path towards a greater integration of European Private Law,
constitutes the draft Common Frame of Reference, it has had an indisputable practicality.
E) The deprivatization of Commercial Law.
Much of the regulation that makes up the Commercial Law, has been acquiring an
imperative character, product of the increasing intervention of the State in the economy
caused by the crisis of the liberal State, which tries to correct the defects of the
market through the normative intervention of the State .
F) The so-called dissolution of Commercial Law and the birth of new
branches.
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The problem that arises is whether these new branches, and the fragmentation of the content of Commercial
Law that they entail, suppose or not a dissolution of it. The question of the autonomy of certain
branches of Commercial Law has been raised in relation to Consumer Law and Navigation Law.
a) Right of navigation.
Whoever affirms the autonomy of the Law of Navigation, opting for a broad concept of the same that would
integrate all the public and private, national and international norms that regulate maritime, fluvial or air
transport.
In its Explanation of Motives, it declares that the Law regulates the framework in which the activities of maritime
traffic are registered, constituted by the geographical environment itself and the physical spaces that make
it possible, as well as the instruments and vehicles, guaranteeing the necessary coherence of Spanish Law.
b) Consumer law.
The existence of a part of the doctrine that sees consumer law as a special branch, unrelated to civil,
commercial and administrative law, should be highlighted.
The difficulties that have been identified in the configuration of consumer law as a special
right are: the breakdown of the unity of private law, and the insufficient application base of this special
right, which is based on the situation of economic inequality; and that consumer protection can be achieved
without having to come to sustain scientific autonomy.
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2. Current profiles of Commercial Law.
A) Incidence of the Constitution in commercial law.
B) Incidence of the EU regulatory framework on Commercial Law.
C) Incidence of the internationalization of markets in Law
Trade. His international vocation.
D) Commercial Law and current legislative trends.
E) Commercial legislation and voluntary jurisdiction. a) The Voluntary
Jurisdiction Law.
Law 1/2000 of January 7, of Civil Procedure that sanctioned within a period of one year from the date of
entry into force of this Law, the Government will send to the Cortes Generales a bill on voluntary jurisdiction,
with fifteen years late, Law 15/2015 of July 2, on Voluntary Jurisdiction, has been enacted.
The main objective and the true importance in the modernization of the regulation of voluntary jurisdiction. To
give greater systematic coherence and rationality to the procedural legal system. The purpose is to
subtract the voluntary jurisdiction of the LEC, to recognize a differentiated legal treatment with respect to the
common procedural regulation.
The autonomy of voluntary jurisdiction means recognizing a greater role and relevance to an activity in which
highly relevant interests are at stake within the personal and patrimonial sphere, guaranteeing an effective
and simple channel for
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through which to facilitate obtaining certain legal effects and with respect to all rights and
interests involved.
What is intended by simplifying the rules is to modernize this institution so that it represents
a less expensive and faster channel.
The LJV deals with voluntary jurisdiction files that are processed before the courts. For its
regulation, the LJV is structured into 10 Titles. The Preliminary Title includes the general
provisions, among which we must now highlight the provision that the LEC will be
additionally applied to voluntary jurisdiction files in everything that is not regulated in the Law
itself.
Chapters I and II regulate the rules of private international law applicable to voluntary
jurisdiction. Titles II to VIII regulate the files on specific matters, the last of which is
devoted to voluntary jurisdiction files. Title IX is dedicated by law to conciliation.
Through its final provisions, it modifies a whole series of regulations. They limit aspects
related to commercial matters.
Most of the modifications are due to the primary objectives of the LJV, the dejudicialization of
certain cases of voluntary jurisdiction that it carries out by assigning certain files to legal
operators not vested with jurisdictional power, such as Court Clerks, Notaries and Property
and Mercantile Registrars.
b) The files of the voluntary jurisdiction.
b.1 -. The dejudicialization of voluntary jurisdiction files. transformation
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It is one of the newest features, where there is no jurisdictional content, elements of
an administrative nature predominate. In the search for the optimization of available
public resources, it is decided to attribute knowledge of a relevant number of matters that
were traditionally included under the rubric of voluntary jurisdiction.
Voluntary jurisdiction is linked to the existence of cases in which the establishment of
limitations to the autonomy of will in the field of private law is justified. Or also, with
the possibility of having the concurrence of the individual wills necessary to constitute
or give effectiveness to a certain right. The virtuality of these effects requires the
performance of the judge as the definitive interpreter of the law, impartial, independent
and essentially disinterested in the matters before it are elucidated.
First, the powers assigned to the judicial body are redistributed among judges and court
clerks. The substantive decision is reserved to the Judge of those files that affect the
public interest, which may lead to acts of disposition or recognition, creation or
extinction of subjective rights. The files of voluntary jurisdiction in commercial matters of
individuals and families and also some of the files in commercial matters.
Its allocation among the professionals called to know them is made according to the
criterion of alternativity, being the legitimized decision to initiate it the option of making
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before one or the other. Shared powers are established between Court Clerks,
Notaries or Registrars: Court Clerks and Notaries are holders of judicial or extrajudicial
public faith and Registrars have direct and specialized knowledge in the field of
property and commercial law.
The legislator is aware that the concurrence criterion could create the problem of
contradictory resolutions by different bodies. It is expected that in the event of processing
two or more files at the same time, the file of the files subsequently initiated will be
agreed upon. Once a voluntary jurisdiction file is resolved and once the resolution is
signed, it is also sanctioned that another on the same object may not be initiated unless
the circumstances that gave rise to that linked change.
Finally, other repercussions reside in the costs of the file. In order to avoid situations
of impossibility of exercising a right, which until now is free, due to lack of means, the
LJV provides that citizens who have to go to Registrars and Notaries can obtain the right
to free justice.
The competence to hear a file is concurrent, the decision of the legitimate to attend.
b.2-. Some considerations on the processing of voluntary jurisdiction files followed before
the courts.
The LJV deals with commercial files and does so by regulating its articles in the
different files of voluntary jurisdiction before the courts and modifying or referring to
civil and commercial legislation with respect to the files that can be processed before
the Registrars or the Notaries.
In relation to these files, it will be processed before the courts and we must take into
account the following rules:
• Voluntary jurisdiction and contentious process: a series of rules are established
Rules:
o A voluntary jurisdiction file may not be started or continued when dealing
with an object that is being substantiated in a jurisdictional process.
o The file will be suspended when the existence of a contentious
jurisdictional process is proven, the resolution of which may affect it.
o Voluntary jurisdiction files will not be cumulative to any contentious
jurisdictional process.
o The formulation of the opposition in a file of voluntary jurisdiction by
any of the interested parties will not make the file contentious,
nor will it prevent it from continuing its processing until it is resolved.
o The resolution will not prevent the initiation of a judicial process,
the resolution that is said on the confirmation, modification or revocation
of the agreed loa must be pronounced.
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• Jurisdiction: it corresponds to the Courts of 1st Instance or Commercial Courts.
The territorial competence is determined in attention to the file without it being able
to be modified by express or tacit submission. The impulse and direction of the file
corresponds to the Court Clerks.
The file will be resolved by order or decree, according to the jurisdiction of the Judge
or Court Clerk within days from the end of the appearance. The appeal will be
processed and resolved orally.
• Legitimation and application: they will be able to promote and intervene the files of
voluntary jurisdiction who are holders of rights or legitimate interests or whose legitimacy
is legally conferred on the matter that constitutes its object. When this is
foreseen, they must act defended by Lawyers and represented by a Solicitor. The
action of the Lawyer and Prosecutor will be necessary for the presentation of the
review and appeal resources.
• Evidence: the proposition of evidence in the files of voluntary jurisdiction, deciding on its
admission the Judge or the Secretary in attention to whoever is competent to know the
file. • Accumulation: the Judge or Secretary may agree
the accumulation of
files when the resolution of one may affect another, or when such a connection
exists between them could give rise to contradictory resolutions. • Regulation
of the registration qualification: we find one related to the registration qualification. The LJV
provides that if the resolution that puts an end to the voluntary jurisdiction file were to
be registered in the Mercantile Registry, an order must be issued, at the request of a
party, for the purposes of its registration. The qualification of the registrars will be transformation
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limited to the competence of the Judge or Judicial Clerk, to the congruence of
the mandate with the file in which it was issued.
• Expenses: the law rules out the transfer to this area of the general objective criteria or the
expiration of the civil process, it is not possible to understand the existence of winners or
losers in the file. It is expected that the expenses of the file will be borne by the
applicant. Expenses incurred by witnesses and experts will be borne by whoever
proposes them.
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