Comparative civil law

Comparative civil law

1. GENERAL

Comparative law has several branches, one of them being comparative civil law, on which the present investigation deals, which we write with great affection, for all comparative civilists, stating that comparative civil law is not only limited to make comparisons in civil law, but must also take into account other institutions of comparative law, within which we can cite the case of receipt, circulation, import, export, migration, and transformation, among others, however, This research is not exhaustive, but is limited to commenting on certain aspects, such as the structure of the most important civil codes in the area, with which we hope to contribute to the development of the branch of law studied, such as civil law. compared.

Comparative civil law has motivated publications, which can not only be of doctrine, but also from other sources of law, for example comparative law can be made of civil jurisprudence, civil enforcement, civil principles, civil social reality, manifestation of civil will, among other sources of law.

It is necessary to record that the Codes consulted for this research work constitute legal devices, better known as legal norms, which are the same as each other, but are different, which is a fairly important feature in the study of law comparative civil law, and this does not only occur in civil codes, but in all the codes, norms, books, enforcements, and other parts of the law, which comes to be a well-known topic on the part of comparatists, who are the specialists in comparative law, to which few lawyers are dedicated and this also occurs in Peruvian law.

When comparative law studies are carried out, not only codes are compared, but also other parts of the law, for example other sources of law can be compared, within which we can cite the case of doctrine, and within it we can cite the case of civil doctrine, which is quite important in the study of law, therefore, in this venue civil doctrine from different countries is also studied, citing for this purpose foreign authors, who have made important contributions to civil law foreigner, which has been received under Peruvian civil law.

Peruvian civil law is not only made up of civil codes, but there are other norms that complement it, and there are also other sources of law that must be taken into account in any comparative law study, for example, an important study could be law comparative family or comparative family law, and for this purpose foreign family codes must be taken into account, that is, we must specify that in some countries this type of code exists, which does not exist in Peruvian law, which constitutes an important difference with the law of some other countries, which we put on record to motivate studies in this branch of law, which is located within mixed law, which for many is different from social law,and on this important topic, you can consult books on general theory of law or introduction to law, which is an important course that is little taken into account in undergraduate, but in master's, doctorate and studies that are carried out after these are taken into account. bill.

Abundant publications can be made on comparative civil law, which will not only be from legislation, but also from other sources of law, among which we can cite the case of civil jurisprudence, civil enforcement, civil doctrine, civil principles, values, civil social reality, among others.

This work contains contributions that we hope will be taken into account by the legal community, which is not only Peruvian, but also foreign, for example they exist in other countries and on other continents. In this sense, there is a legal community in Argentina and in Europe, which are part of the foreigner.

It is necessary to record that this research work can motivate publications not only in comparative civil law, but also in other branches of comparative law, within which we can cite the case of comparative criminal law, comparative constitutional law, procedural law compared, among other branches.

In English law there is no written Constitution, nor is there a Civil Code, therefore, in these branches of law, other parts of constitutional law and civil law, respectively, must be used, which are quite important branches of law in the study. of law. In other words, civil law is different in all countries and we must also specify that the codification belongs to the German-Roman legal family, but not to the opposite legal family, such as the Anglo-Saxon or common law family. What is widely studied by comparatists, who are also known as comparativists, who are dedicated to the study and application of comparative law, within which comparative civil law is located, about which the present work of investigation.In other words, it is difficult for an English jurist to study the codes, which we put on record to deepen our studies of comparative law.

There are several classifications of law, being the one that interests us at this site the one that divides the one indicated in the following parts: 1) codified law, and 2) non-codified law. The first of those indicated is made up of codes, some of them being civil codes, and some of them being Peruvian civil codes.

2. DEFINITION

Definition is an important topic in all research work, therefore, next, we will define the topic studied, in order to have a more exact notion of the topic to be studied in this research work.

Comparative civil law can be defined as the branch of comparative law that studies and applies the institutions of the latter to civil law, that is, it is not the same as the comparison of rights, but is broader, which we have explained in various locations and on which we are conducting research that we hope will be liked by all.

Having defined the topic to be developed, we continue with our research, hoping that our knowledge of the field of comparative law to be studied will increase, as will our critical capacity, for which we make comments on comparative civil law.

3. FRENCH CIVIL CODE

We will begin our study by reviewing a French Code, which we have reviewed at other sites, which we hope can be consulted by researchers who have access to this research paper, so that they can dedicate themselves more to civil law. This Code is not only important in French law, but also in the law of other countries, within which we can cite in Peruvian, Bolivian, Brazilian, Spanish, German, Italian, Swiss, Costa Rican, Chilean, Paraguayan, Uruguayan law, Ecuadorian, among others. That is, it is a fairly important Code in the study of comparative civil law.

The French Civil Code of 1804, is known as the Napoleon Code and has the following structure:

Preliminary title: Of the publication, of the effects and of the application of the laws in general Of the publication, of the effects and of the application of the laws in general

First Book: Of people

Book II: Of the goods and of the different modifications of the property

Book III: Of the different ways of acquiring property

In other words, its structure differs with respect to its similarity from Peruvian law.

This substantive Code is in force and has served as inspiration for many other Civil Codes in other countries. One of the reasons why it is taken into account is because it is considered by many authors as the first special Code, which are the Codes characterized by regulating only one branch of law, and the same is true of other Codes, within which we can quote the following Codes:

1) Political Constitution.

2) Penal code.

3) Civil procedural code.

4) Code of criminal procedures.

5) Criminal procedural code.

6) Electricity code.

7) Work code.

8) Family code.

9) Insurance code.

The studied Code has been commented by the MAZEAUD brothers and by PLANIOL AND RIPERT.

4. CHILEAN CIVIL CODE

The Chilean Civil Code is made up of a preliminary title, four books and a final title.

Preliminary title:

Book I: Of the people

Book II: Of the goods, and of their domain, possession, use and enjoyment

Book III: Of succession by cause of death and donations among the living

Book IV: Of general obligations and contracts

Final Title: of the observance of the Code.

The structure of the studied Code is different from the 1984 Peruvian Civil Code.

5. GERMAN CIVIL CODE

The German Civil Code of 1896, in force since 1900, is known with the initials: "BGB", which contains five books, which are the following:

• The General PartThe law of obligationsThe law of propertyThe family lawThe inheritance law

This Code has a different structure from that of the 1984 Peruvian Civil Code.

This Code is characterized by being highly technical, a characteristic that the Peruvian Civil Code of 1936 also has, the opposite occurring with the Peruvian Civil Code of 1984, the Peruvian Civil Code of 1852 and the Spanish Civil Code of 1889.

6. SPANISH CIVIL CODE

The Spanish Civil Code of 1889 has the following structure:

Preliminary title. Of legal norms, their application and effectiveness

Book first. Of people.

Second book. Of goods, property and its modifications

Third book. Of the different ways of acquiring property

Fourth book. Of obligations and contracts

Additional provisions.

Transitory dispositions.

The Spanish Civil Code of 1889 has a different structure from that of the Peruvian Civil Code of 1984.

This Code is quite affordable and few legal knowledge is needed to know it, in addition we must emphasize that it has more than one hundred years of validity and has been extensively studied by DIEZ PICAZO, LA CRUZ BERDEJO and ALBALADEJO.

The Code currently studied has a preliminary title, which contains five chapters, as inserted below to facilitate comparative civil law studies:

PRELIMINARY TITLE. Of legal norms, their application and effectiveness

FIRST CHAPTER. Sources of law

Art. 1

1. The sources of the Spanish legal system are the law, custom and general principles of law. The custom will only govern in the absence of applicable law, provided that it is not contrary to morality or public order and that it is proven. they are not merely interpretive of a declaration of will, they shall be considered customary. The general principles of law shall apply in the absence of law or custom, without prejudice to their informative nature of the legal system. The legal norms contained in international treaties shall not Direct application in Spain as long as they have not become part of the internal order through their full publication in the Official State Gazette. The jurisprudence will complement the legal order with the doctrine that, repeatedly,The Supreme Court establishes when interpreting and applying the law, custom and general principles of law. Judges and Courts have an inexcusable duty to resolve in any case the matters they are aware of, adhering to the established system of sources.

Drafted by D. 1836 / 1.974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 2

1. The laws will come into force twenty days after their complete publication in the Official State Gazette, if they are not provided otherwise. The laws are only repealed by subsequent ones. The derogation will have the scope that is expressly provided and will always extend to everything that in the new law, on the same matter, is incompatible with the previous one. By the simple repeal of a law, those that it has repealed do not regain validity. The laws will not have retroactive effect if they do not provide otherwise.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law. Cfr., Regarding section 3, art. 9.3 of the EC, on the non-retroactivity of the sanctioning provisions not favorable or restrictive of individual rights.

CHAPTER II. Application of the judicial norms

Art. 3

1. The norms will be interpreted according to the proper meaning of their words, in relation to the context, the historical and legislative antecedents and the social reality of the time in which they are to be applied, attending fundamentally to their spirit and purpose. Equity must be weighed in the application of the rules, although the resolutions of the Courts can only rest exclusively on it when the law expressly allows it.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 4

1. The analogical application of the rules will proceed when they do not contemplate a specific assumption, but they regulate another similar one among which the identity of reason is appreciated. Criminal, exceptional and temporal laws will not apply to cases or at times other than those expressly included in them. The provisions of this Code will be applied as supplementary in matters governed by other laws.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 5

1. Provided that nothing else is established, within the periods indicated by days, counting from a specific one, it will be excluded from the computation, which must begin on the following day; and if the terms are fixed by months or years, they will be computed from date to date. When in the month of the expiration there is no day equivalent to the initial one of the computation, it will be understood that the term expires the last of the month. In the civil computation of the terms, non-working days are not excluded.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

CHAPTER III. General effectiveness of legal regulations

Art. 6

1. Ignorance of the laws does not excuse their compliance.

The error of law will produce only those effects that the laws determine.

1. The voluntary exclusion of the applicable law and the waiver of the rights recognized in it will only be valid when they do not contradict the interest or public order or harm third parties. Acts contrary to the mandatory and prohibitive norms are null and void, except that they establish a different effect in the case of contravention. Acts carried out under the text of a norm that pursue a result prohibited by the legal system, or contrary to it, will be considered executed in fraud of law and will not prevent the due application of the rule that has been tried to evade.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 7

1. The rights must be exercised in accordance with the requirements of good faith. The law does not protect the abuse of the right or the antisocial exercise of the same. Any act or omission that by the intention of its author, by its object or by the circumstances in which it is carried out manifestly exceeds the normal limits of the exercise of a right, with damage to third parties, will give rise to the corresponding compensation and the adoption of the judicial or administrative measures that prevent the persistence of abuse.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

CHAPTER IV. Rules of private international law

Art. 8

1. Criminal, police and public security laws bind all those who are in Spanish territory. Spanish procedural laws will be the only ones applicable to actions that are substantiated in Spanish territory, without prejudice to any referrals that they may to do to the foreign laws, regarding the procedural acts that have to be carried out outside Spain.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 9

1. The personal law corresponding to natural persons is determined by their nationality. Said law shall govern the capacity and marital status, the rights and duties of the family and the succession due to death.

The change of personal law will not affect the age of majority acquired in accordance with the previous personal law.

1. The effects of the marriage will be governed by the common personal law of the spouses at the time of contracting it; in default of this law, by personal law or by the habitual residence of either of them, chosen by both in an authentic document granted before the celebration of the marriage; in the absence of this choice, by the law of the common habitual residence immediately after the celebration, and, in the absence of such residence, by that of the place of celebration of the marriage.

Separation and divorce will be governed by the law determined by article 107.

1. The covenants or capitulations by which the economic regime of marriage is stipulated, modified or replaced shall be valid when they are in accordance either with the law that governs the effects of marriage, or with the law of nationality or the habitual residence of any of the parties at the time of granting.The character and content of the filiation, including the adoptive and the paternal-filial relationships, will be governed by the personal law of the child and if this could not be determined, it will be that of the habitual residence of the child. The adoption, constituted by a Spanish judge, shall be governed, as regards the requirements, by the provisions of Spanish law. However, the national law of the adoptee must be observed with regard to its capacity and necessary consents:

1st. If you had your habitual residence outside of Spain.

2nd. Although residing in Spain, if you do not acquire, by virtue of adoption, Spanish nationality.

At the request of the adopter or the Public Prosecutor, the Judge, in the interest of the adoptee, may also require the consents, hearings or authorizations required by national law or by the law of the habitual residence of the adopter or the adoptee.

For the constitution of the adoption, the Spanish Consuls will have the same powers as the Judge, provided that the adopter is Spanish and the adoptee is domiciled in the consular demarcation. The previous proposal will be formulated by the public entity corresponding to the last place of residence of the adopter in Spain. If the adopter did not have residence in Spain in the last two years, a prior proposal will not be necessary, but the Consul will obtain from the authorities of the place of residence that sufficient information to assess their suitability.

In the adoption constituted by the competent foreign authority, the adopting law shall govern as to capacity and necessary consents. The consents required by such Law may be given before an authority of the country in which the constitution began or, subsequently, before any other competent authority. In your case, the adoption of a Spanish will require the consent of the public entity corresponding to the adoptee's last residence in Spain. The one established abroad by a Spanish adopter will not be recognized as an adoption in Spain, if the effects of the adoption do not correspond to those provided by Spanish legislation. Nor will it be, as long as the competent public entity has not declared the suitability of the adopter,if the latter were Spanish and domiciled in Spain at the time of the adoption.

1. Guardianship and the other institutions for the protection of the incapacitated person will be regulated by their national law. However, provisional or urgent protection measures will be governed by the law of your habitual residence.

The formalities of constitution of the guardianship and other protection institutions in which Spanish judicial or administrative authorities intervene will be substantiated, in any case, in accordance with Spanish law.

Spanish law will be applicable to take protective and educational measures regarding abandoned minors or incapacitated persons who are in Spanish territory.

1. The right to the provision of alimony between relatives shall be regulated by the common national law of the alimony and the alimony. However, the law of the habitual residence of the person claiming them will be applied when they cannot obtain them in accordance with common national law. In the absence of both laws, or when neither of them allows obtaining food, the internal law of the authority hearing the claim will apply.

In the event of a change in the common nationality or habitual residence of the nutritionist, the new law will apply from the moment of the change.

1. The succession due to death will be governed by the national law of the deceased at the time of his death, regardless of the nature of the assets and the country where they are located. However, the provisions made in testament and the succession agreements ordered in accordance with the national law of the testator or of the disposer at the time of its granting will retain their validity even if the law governing the succession is different, although the legitimate ones will be adjusted, in his case, the latter. The rights that by law ministry are attributed to the surviving spouse will be governed by the same law that regulates the effects of marriage, except always the legitimate ones of the descendants. For the purposes of this chapter,With regard to the situations of dual nationality provided for in Spanish law, the provisions of international treaties will be followed, and, if nothing is established, the nationality coinciding with the last habitual residence and, failing that, the last acquired.

In any case, the Spanish nationality of the person holding another not provided for in our laws or in international treaties shall prevail. If you hold two or more nationalities and none of them is Spanish, the following section will be established.

1. The law of the place of their habitual residence shall be considered as the personal law of those who lack nationality or have it undetermined.The personal law corresponding to legal persons is determined by their nationality and will govern everything related to capacity, constitution, representation, operation, transformation, dissolution and extinction.

In the merger of companies of different nationalities, the respective personal laws will be taken into account.

Sections 2, 3, 5 and 8, according to the wording established by Law 11 / 1.990, of October 15 (BOE of October 18), on the reform of the Civil Code, in application of the principle of non-discrimination based on sex. Section 4 and paragraphs 3, 4 and 5 of section 5, according to the wording established by LO 1 / 1.996, of January 15 (BOE of January 17), on the Legal Protection of Minors. The rest of the article, according to the wording established by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 10

1. Possession, property and other rights over real estate, as well as their advertising, will be governed by the law of the place where they are located.

The same law shall apply to movable property.

For the purposes of the constitution or transfer of rights over goods in transit, these will be considered located at the place of their dispatch, unless the sender and the recipient have expressly or tacitly agreed that they are considered to be located at the place of destination..

1. Ships, aircraft and means of rail transport, as well as all the rights that may be established over them, shall be subject to the law of the place of their flagging, registration or registration. Automobiles and other means of road transport will be subject to the law of the place where they are located. The issuance of the securities will abide by the law of the place where it is produced. Intellectual and industrial property rights will be protected within the Spanish territory in accordance with Spanish law, without prejudice to the provisions of international conventions and treaties to which Spain is a party. The law to which the parties have expressly submitted shall apply to contractual obligations, provided that it has any connection with the business in question; failing that, the national law common to the parties;in the absence of it, that of the common habitual residence, and, ultimately, the law of the place of conclusion of the contract.

Notwithstanding the provisions of the preceding paragraph, in the absence of express submission, the law of the place where they are located shall apply to contracts relating to immovable property, and to the purchase and sale of corporal furniture made in commercial establishments, the law of the place where they file.

1. To the obligations derived from the employment contract, in the absence of express submission of the parties and without prejudice to the provisions of section 1 of article 8, the law of the place where the services are provided will apply, donations will be governed, in any case, by the national law of the donor. For the purposes of the Spanish legal system, the onerous contracts concluded in Spain by an incapable foreigner according to its national law will be valid, if the cause of the incapacity is not recognized in Spanish law. This rule will not apply to contracts relating to real estate located abroad. Non-contractual obligations will be governed by the law of the place where the fact that they derive has occurred.

Business management will be regulated by the law of the place where the manager carries out the main activity.

In the enrichment without cause the law will be applied by virtue of which the transfer of the patrimonial value in favor of the enriched occurred.

1. The regulatory law of an obligation extends to the requirements of compliance and the consequences of non-compliance, as well as its termination. However, the law of the place of performance will be applied to the modalities of the execution that require judicial or administrative intervention. To the legal representation the law regulating the legal relationship from which the powers of the representative are born will apply, and to the voluntary, if there is no express submission, the law of the country where the powers conferred are exercised.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 11

1. The forms and solemnities of contracts, wills and other legal acts will be governed by the law of the country in which they are granted. However, those celebrated with the forms and solemnities required by the law applicable to its content, as well as those celebrated according to the personal law of the disposer or the common law of the grantors, will also be valid. The acts and contracts relating to real estate granted in accordance with the forms and solemnities of the place where they reside will also be valid.

If such acts were granted on board ships or aircraft during their navigation, they will be understood to be held in the country of their flagging, registration or registration. Military ships and aircraft are considered part of the territory of the State to which they belong.

1. If the law regulating the content of acts and contracts requires a certain form or solemnity to be valid, it will always be applied, even in the case of granting those abroad. Spanish law will apply to contracts, wills and other acts legal authorized by diplomatic or consular officials of Spain abroad.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 12

1. The qualification to determine the applicable conflict rule will always be made in accordance with Spanish law. The reference to foreign law will be understood to be made to its material law, without taking into account the referral that its conflict rules may make to another law that does not It is Spanish. In no case will foreign law apply when it is contrary to public order. The use of a conflict rule in order to avoid a mandatory Spanish law will be considered a fraud of law. When a conflict rule refers to the legislation of a State in which different legislative systems coexist, the determination of which is applicable between them will be made in accordance with the legislation of that State. Courts and authorities will apply ex officio the conflict rules of Spanish law

The person who invokes foreign law must prove its content and validity by the means of evidence admitted in Spanish law. However, for its application, the judge will be able to use as many investigation instruments as she deems necessary, dictating the appropriate measures to that effect.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

CHAPTER V. Scope of application of the coexisting civil legal regimes in the national territory

Art. 13

1. The provisions of this preliminary title, insofar as they determine the effects of the laws and general rules for their application, as well as those of title IV of book I, with the exception of the latter's rules regarding the matrimonial property regime, will have general application. and directly throughout Spain. In the rest and with full respect for the special or provincial rights of the provinces or territories in which they are in force, the Civil Code will govern as a supplementary right, in default of what is in each of them, according to their special rules.

Drafted by D. 1,836 / 1,974, of May 31 (BOE of July 9), by which the articulated text of the Preliminary Title of the Civil Code is sanctioned by law.

Art. 14

1. The subjection to the common civil law or to the special or foral law is determined by the civil neighborhood. They have civil neighborhood in the territory of common law, or in one of the special or regional law, those born to parents who have such a neighborhood.

By adoption, the non-emancipated adoptee acquires the civil vicinity of the adopters.

1. If, at the birth of the child, or when adopted, the parents have a different civil neighborhood, the child shall have the one corresponding to the one of the two with respect to which filiation has been previously determined; failing that, it will have the place of birth, and, ultimately, the neighborhood of common law.

However, the parents, or whoever exercises or has been granted parental authority, may attribute to the child the civil vicinity of either parent as long as the six months following the birth or adoption have not elapsed.

The deprivation or suspension in the exercise of parental authority, or the change of neighborhood of the parents, will not affect the civil neighborhood of the children.

In any case, the child from the age of fourteen until one year after his emancipation may choose either the civil neighborhood of the place of his birth, or the last neighborhood of any of his parents. If she is not emancipated, she must be assisted in the option by the legal representative.

1. Marriage does not alter civilian neighborhood. However, any of the non-separated spouses, either legally or in fact, may, at any time, choose the other's civil neighborhood. The civil neighborhood is acquired:

1st. For continued residence for two years, provided that the interested party states that this is their will.

2nd. For continued residence of ten years, without declaration to the contrary during this period.

Both statements will be recorded in the Civil Registry and do not need to be reiterated.

1. In case of doubt, the civil neighborhood corresponding to the place of birth shall prevail.

Drafted by Law 11/1990, of October 15 (BOE of October 18), on the reform of the Civil Code, in application of the principle of non-discrimination based on sex

Art. 15

1. The foreigner who acquires Spanish nationality must opt, when registering the acquisition of nationality, for any of the following neighborhoods:
   1. That corresponding to the place of residence. That of the place of birth. The last neighborhood of any of its parents or adopters. That of the spouse.

This declaration of option will be formulated, taking into account the capacity of the interested party to acquire nationality, by the applicant himself, by himself or assisted by his legal representative, or by the latter. When the acquisition of nationality is made by declaration or at the request of the legal representative, the necessary authorization must determine the civil neighborhood for which one has to choose.

1. The foreigner who acquires the nationality by nature card will have the civil vicinity that the Royal Decree of concession determines, taking into account the option of the former, in accordance with the provisions of the previous section or other circumstances that concur in the petitioner. Spanish nationality carries with it that of the civil neighborhood held by the interested party at the time of their loss. by the provisions of this article and those of the previous one.

Drafted by Law 18/1990, of December 17 (BOE of December 18), of reform of the Civil Code in matters of nationality.

Art. 16

1. The conflicts of laws that may arise due to the coexistence of different civil laws in the national territory will be resolved according to the norms contained in Chapter IV with the following characteristics:

1st. The personal law will be determined by the civil neighborhood.

2nd. The provisions of sections 1, 2 and 3 of article 12 on qualification, referral and public order will not be applicable.

1. The widowhood right regulated in the Aragonese Compilation corresponds to the spouses subject to the matrimonial property regime of said Compilation, although later their civil neighborhood changes, excluding, in this case, the legitimate one established by the succession law.

The expectant right of widowhood may not be opposed to the acquirer for consideration and in good faith of goods that do not reside in territory where such right is recognized, if the contract had been concluded outside said territory, without having recorded the matrimonial property regime. of the sender.

The widow's usufruct also corresponds to the surviving spouse when the premuerte had Aragonese civil vicinity at the time of his death.

1. The effects of the marriage between Spaniards will be regulated by the Spanish law that is applicable according to the criteria of article 9 and, failing that, by the Civil Code.

In the latter case, the civil property separation regime will apply if, according to one and another personal law of the parties, a separation system would have to govern.

Drafted by Law 11/1990, of October 15 (BOE of October 18), on the reform of the Civil Code, in application of the principle of non-discrimination based on sex

7. URUGUAY CIVIL CODE

The Civil Code of Uruguay has the following structure:

Preliminary Title "Of the laws" and four books:

Book I: "Of the people", Book II: “Of the goods and of the property domain”, Book III: "Of the ways to acquire the domain", Book IV: "Of the Obligations", Final Title

Appendix to the Final Title

The 1984 Peruvian Civil Code has a different structure from that of the studied Code.

8. CIVIL CODE OF HONDURAS

The Honduran Civil Code of 1899 has the following structure:

Preliminary title.

Book I -Of people.

Book II- Of the goods., Of the property and its modifications.

Book III- Of the different ways of acquiring property, Book IV- Of obligations and contracts

The Peruvian Civil Code of 1984 has a different structure from the Honduran Civil Code of 1899.

9. SWISS CIVIL CODE

The Swiss Civil Code of 1907 has the following structure:

Introduction.

Part One: The right of the people.

Part Two: Family Law.

Part Three: the right of succession.

Part Four: the right of things.

Final title: regulatory conditions.

The Swiss Civil Code has a different structure from the 1984 Peruvian Civil Code.

Swiss civil law is a fairly advanced law, which is used to take into account the latest developments in the branch of law studied.

Swiss law also takes into account the Swiss Code of Obligations, that is, the two aforementioned Codes should be considered as legal monuments, which merit a fairly detailed study, not only for Swiss law, but also in comparative law, for example when comparative law is made between Peruvian law and Swiss law.

10. QUEBEC CIVIL CODE

The Québec Civil Code entered into force on the first of 1994 and has the following books:

1. People Family Successions Property Obligations Pledges and Mortgages Proof Prescription Publication of Rights Private International Law

The 1984 Peruvian Civil Code has a different structure from the Quebec Civil Code.

11. BRAZIL CIVIL CODE

The Brazilian Civil Code is from 2002 and has the following structure:

The current Brazilian Civil Code has 2,046 articles, organized as follows:

General part

I - The People

II - The Goods

III - The Legal Acts

Special Part

Book I - On the Law of Obligations

Book II - Company Law

Book III - On the Law of Things

Book IV - On Family Law

Book V - On Succession Law

Final Part of the final and transitory provisions

This Code has a different structure from that of the 1984 Peruvian Civil Code, and we must also record that it is a fairly recent Code that is difficult to study, because in Brazil the official language is Portuguese, except for legal translation scholars., which constitutes an important specialty in law.

12. ITALIAN CIVIL CODE

The Italian Civil Code of 1942 consists of the following books:

Book 1: People and Family Law.

Book 2: Succession Law.

Book 3: Property Law.

Book 4: Law of Obligations.

Book 5: Right to Work.

Book 6: Protection of Rights.

The Italian Civil Code of 1942 has a different structure from that of the Peruvian Civil Code of 1984.

The studied Code is taken into account frequently in comparative law, in this sense, it has been established that from its date of approval it has been the subject of legal circulation in civil law, and this not only occurs in the Peruvian law, but also in foreign law.

It has been commented by MESINEO, which has published some years ago an important civil law treaty, which is taken into account not only in Italy, but also in other countries.

13. PERUVIAN CIVIL CODE OF 1852

The Peruvian Civil Code of 1852 had the following structure:

Preliminary Title (of the laws in general)

Three books:

1º of people and their rights.

2º Of things: of the way of acquiring them, and of the rights that people have over them.

3º Of obligations and contracts.

This Code, which can be easily understood and has a different structure from that of the 1984 Peruvian Civil Code.

14. PERUVIAN CIVIL CODE OF 1936

The structure of the Peruvian Civil Code of 1936 was as follows:

Preliminary title.

First Book: Of the right of the people.

Second Book: Of family law.

Third book: Of the right of succession.

Book Four: Of the real rights.

Fifth Book: Of the right of obligations.

This 1984 Peruvian Civil Code has a different structure from that of this studied Code.

The studied Code is highly technical, therefore, it compares quite a bit with the German Civil Code of 1896 in force since 1900, which the doctrine knows by the acronym "BGB".

15. PERUVIAN CIVIL CODE OF 1984

The 1984 Peruvian Civil Code had the following structure:

Preliminary title.

Book I: People's Law.

Book II: Legal Act.

Book III: Family Law.

Book IV: Succession Law.

Book V: Real Rights.

Book VI: The obligations.

Book VII: Sources of the Obligations.

Book VIII: Prescription and Expiration.

Book IX: Public Records.

Book X: Private International Law.

Final Title.

This is the current Peruvian Civil Code, which has a different structure from the Peruvian Civil Codes of 1936 and 1852.

The Code studied is quite affordable, therefore, to understand it, little legal training is required. In other words, this substantive Code was written to solve problems rather than to create them, and these are the latest trends in law.

This substantive Code contains a preliminary title, the articles of which are as follows:

Article I.- Repeal of the law

The law was repealed only by another law.

The derogation takes place by express declaration, by incompatibility between the new law and the previous one or when the matter of this one is entirely regulated by the former.

Due to the repeal of a law, those that it has repealed do not regain validity.

Article II.- The law does not protect the abuse of the right. The interested party may demand the adoption of the necessary measures to avoid or suppress the abuse and, where appropriate, the corresponding compensation. (*)

(*) Article modified by the First Modifying Provision of the Single Ordered Text of the Civil Procedure Code, approved by Ministerial Resolution No. 10-93-JUS, published on 04-23-93. The same that includes the modifications made by the First Modifying Provision of Legislative Decree No. 768, published on 04-03-92 and that of Article 5 of Decree Law No. 25940, published on 11-12-92, the text of which is as follows:

Article II.- Abusive exercise of the right

The law does not protect the abusive exercise or omission of a right. By claiming compensation or other claim, the interested party may request the appropriate precautionary measures to prevent or provisionally suppress the abuse.

Article III.- Application of the law in time

The law applies to the consequences of existing legal relationships and situations. It has no force or retroactive effect, except for the exceptions provided for in the Political Constitution of Peru.

Article IV.- Analogical application of the law

The law that establishes exceptions or restricts rights does not apply by analogy.

Article V.- Public order, good customs and nullity of the legal act

The legal act contrary to the laws that interest public order or good customs is void.

Article VI.- Interest to act

To exercise or answer an action, it is necessary to have a legitimate economic or moral interest.

The moral interest authorizes the action only when it refers directly to the agent or his family, unless expressly provided by law.

Article VII.- Application of the pertinent norm by the judge Judges have the obligation to apply the pertinent legal norm, even if it has not been invoked in the application.

Article VIII.- Obligation to supply the defects or deficiencies of the law Judges cannot fail to administer justice due to a defect or deficiency of the law. In such cases, they must apply the general principles of law and, preferably, those that inspire Peruvian law.

Article IX.- Supplementary application of the Civil Code

The provisions of the Civil Code are applied supplementally to legal relationships and situations regulated by other laws, provided they are not incompatible with their nature.

Article X.- Gaps in the law

The Supreme Court of Justice, the Court of Constitutional Guarantees (*) and the Prosecutor of the Nation are obliged to report to Congress on any gaps or defects in the legislation.

Judges and prosecutors have the same obligation with respect to their corresponding superiors.

(*) The reference to the Tribunal of Constitutional Guarantees must be understood as made to the Constitutional Court.

Download the original file