The first Law of the Civil Code of Catalonia, 29/2002, of December 30, culminates the process of conservation, modification and development of Catalan civil law that began with the constitutional law included in article 149.1.8 of the Magna Carta.
Said constitutional precept attributes the exclusive competence of the State in matters of civil legislation “without prejudice to the conservation, modification and development by the Autonomous Communities of civil, provincial or special rights where they exist. ”
The unconstitutionality Appeal presented against this Law was motivated by determining the scope of the expression "conservation, modification and development by the Autonomous Communities of special or foral civil rights" since said power will basically depend on the greater or lesser legislative power of each Autonomous Community, determined mainly by the powers attributed to it by its Autonomous Parliament.
On the one hand, a part of the doctrine has understood that Parliaments such as those of Catalonia can only legislate on matters of civil legislation on those extremes, on matters in respect of which there is some legislative precedent, so it is not their responsibility to legislate on matters that were not recognized in the compilations of Catalan Civil Law. In other words, the legislative power of the Parliament of Catalonia could only legislate, in order to preserve, develop or modify, those institutions that already exist, but not ex novo.
Faced with this centralist doctrinal sector, there is another that maintains that Catalan parliaments do have the power to legislate ex novo, that is, that they can cover those civil institutions not included in the Compilation.
If the Compilació de Dret Civil Catalá was the beginning of a first phase that tried to adapt the Compliació of 1960 to the Catalan legal system and constitutional principles to overcome historical evolution, the new Catalan Civil Code Act tries to give a structure and content to the special laws that were enacted from 1991 with the promulgation of the Succession Code due to death in Catalan Civil Law, and with the Family Code, which have been, in addition to a valuable legislative instrument, the symbol of the fullness of the exercise of the legislative competence granted to Catalonia via the Spanish Constitution.
With the desire to be conformed by integrating new laws as a result of the process of permanent change to which it is, and in my opinion, any legislative process must continue to be in order to measure up to social, technical and economic progress, the spirit of this law is that the civil code of Catalonia is an open source both in structure and content.
For this reason it has been structured by Books that allow the introduction at any time of new legislation that allows its systematics not to be affected.
Thus, the books that make up the Code are six. The first deals with general provisions, deals with issues such as the regulation of prescription and expiration. The second Book deals with the person and the family in which the Family Code, the inheritance code will be incorporated as well as other laws that may deal with the protection of minors, institutions such as guardianship, conservatorship…, the third Legal entity that in this sense has restricted the development in mercantile legislation as it is the exclusive competence of the central State, not being able to regulate mercantile companies but it can incorporate the current laws that regulate associations and foundations, the fourth of the successions that has incorporated the current Catalan succession code,the fifth of the real rights in which it has incorporated certain laws of the Parliament of Catalonia such as those relating to the Census, to the rights of usufruct, use of room and surface, to the rights of easements, accession, occupation and real rights of guarantee and the sixth of the obligations and contracts matters that the central State reserved exclusive competence in terms of bases of contractual obligations.
The criteria for applying the Catalan civil code
Article 14 of the Civil Code establishes that the subjection to the Civil Code or territorial law is determined by the civil neighborhood. So this will be the first criterion so that, in the event of a certain fact, the Catalan or Navarre Law can be applied, for example.
As a reminder, the civil neighborhood can be determined by several facts:
- iure sanguinis, that is, the born acquires the civil neighborhood that the father or mother had regardless of the place where the birth was born. birth. This neighborhood is acquired by:
1. For continued residence for two years, provided that the interested party states that this is their will.
2. For continued residence of ten years, without declaration to the contrary during this term.
The Catalan Civil Code, in its article 111-3, establishes that Catalan civil law has territorial efficacy, that is to say, it will be applied regardless of the civil neighborhood that a certain subject may have if at the time of the events, it is in Catalonia, but adds "without prejudice to the exceptions that may be established in each matter".
