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ADAPTATION OF THE LAW OF CATALONIA TO THE LAW OF VOLUNTARY JURISDICTION

ADAPTATION OF THE LAW OF CATALONIA TO THE LAW OF VOLUNTARY JURISDICTION

Law 3/2017 of 15 February, in addition to approving Book VI of the Civil Code of Catalonia, referring to obligations and contracts, and whose analysis we will enter into in the next entries of this blog, in its additional provisions deals with an issue, which was urgent and necessary to enter into, such as the adaptation of the law of Catalonia to the modifications introduced in various civil matters with Law 15/2015 on Voluntary Jurisdiction and which can be consulted in the following entries of this blog. Commercial Law, Personal Law, Family Law, Succession Law, Real Rights and Obligations

As is known, with the Voluntary Jurisdiction Law 15/2015, powers that until then were in the scope of the judicial authority were attributed to notaries and lawyers of the Administration of Justice. The legislative technique adopted, at least with regard to notarial powers, was to modify the Notarial Law, dealing with the procedural aspects of certain matters, and also the direct modification of the Civil Code, changing the previous references to the judicial authority, to those of notary and/or lawyer of the administration of justice.

The fact that these matters, which are essentially procedural in nature, were regulated through the modification of a substantive law, raised doubts as to whether they were applicable to Catalonia, since this implied an indirect modification of its own law.

In this entrance From the blog, and referring to the figure of interpellatio in iure, I tried to argue that, since the law of voluntary jurisdiction is a law of a procedural nature, the references that Catalan law made to the judicial authority should be transferred to notaries and/or lawyers of the administration of justice, in those matters that arose from the modification of the Civil Code, but that were also known by Catalan law.

However, he also mentioned the need to adapt the law of Catalonia, so that the issue would be clear.

Fortunately, the reform has arrived and we are going to make a summary of it, systematizing it by subject matter, with reference to the modified regulations, since the procedural rules referring to competence, legitimation, application, processing and resolution, will be the general or specific ones of the voluntary jurisdiction law, given the state competence nature of the procedural legislation.

ENTRY INTO FORCE. This law, and therefore the amendments we are going to point out, will come into force on 1 January 2018, with the following exceptions that came into force on 1 March 2017.

Section 1 of the second final provision (modifications regarding the right to vote).

Section 11 of the fourth final provision (interpellatio in iure).

Section 4 of the fifth final provision (which adds a section, 5, to article 565-11 of the Civil Code of Catalonia).

And the sixth final provision (which adds a transitional provision, the twenty-first, to Law 5/2006, of May 10, of the fifth book of the Civil Code of Catalonia, relating to property rights).

 

1.- PERSON AND FAMILY RIGHTS

1.1.- EXTENSION FOR THE INVENTORY OF THE TUTOR AND/OR ASSET MANAGER.

 Regulation

Article 222-2.1 Civil Code of Catalonia:

"The guardian and, failing that, the estate administrator must make an inventory of the assets of the ward within two months of taking office. The lawyer of the Administration of Justiceto may extend this period for just cause up to a maximum of two months.

1.2.- CONFLICT OF INTEREST BETWEEN TUTORS AND/OR ASSET MANAGERS.

Regulation

Article 222-29 Civil Code of Catalonia

“In the event of a conflict of interest with the ward, if there are two guardians or a guardian and an estate manager, the affected person is replaced by the other. If there is only one guardian or if the conflict of interest also exists in relation to the person who should replace him, The legal representative of the Administration of Justice must appoint a legal defender.»

1.3.- CONFLICT OF INTEREST BETWEEN CURATOR AND PERSON SUBJECTED TO CURATORSHIP

Regulation

Article 223-7 of the Civil Code of Catalonia.

"If there is a conflict of interest between the person placed under guardianship and the guardian, as well as in the case of impossibility, The legal representative of the Administration of Justice must appoint a legal defender

1.4.- APPOINTMENT OF JUDICIAL DEFENDER

Regulation

Article 224-1 Civil Code of Catalonia.

The Clerk of the Court of Justice must appoint a legal defender in the following cases:

a) If there is a conflict of interest between the tutor and the ward, or between the curator and the person placed under conservatorship.

b) If the circumstances of the person who must be protected so require, while the guardianship is not constituted.

c) As long as the guardianship of prodigals or people in a situation of relative incapacity is not established.

d) In the cases in which for any reason the tutors or curators do not perform their functions, until the case is finalized or another person is not appointed to carry out the duties.

e) In other cases determined by law.»

Article 224-2 Civil Code of Catalonia.

1.-The Clerk of the Court of Justice appoints a legal defender, ex officio or at the request of the Public Prosecutor, the guardian, the curator, the minor himself or any person with a legitimate interest.

2.-The appointment must fall on the person that the clerk of the Court considers most suitable, taking into account the fact that determines the appointment.

Article 224-3 of the Civil Code of Catalonia.

In cases of conflict of interest, the actions of the legal defender are limited to the acts that have determined his appointment.

1.5.- SEPARATIONS AND DIVORCES WITHOUT MINOR CHILDREN WHO DEPEND ON THE SPOUSES.

Regulation.

Article 233-2 Civil Code of Catalonia.

»1. If the spouses reach an agreement on the measures regulating the separation or divorce or on the consequences of the annulment of the marriage, they must draw up an agreement with the content that is appropriate in accordance with paragraphs 4, 5 and 6.

»2. If the spouses have minor children who are not emancipated or whose capacity has been modified by a court and who depend on them, they must submit the agreement to the judicial authority for approval. They must also do so, in any case, if it is an agreement regulating the consequences of the annulment of the marriage.

»3. If the spouses do not meet the requirements of section 2, they may formulate the content of the agreement before a lawyer of the Administration of Justice or in a public deed before a notary. In these cases, it is necessary that the spouses personally intervene in the granting, be

1.6.- REGULATORY AGREEMENTS AFTER THE CESSATION OF COHABITATION COUPLES WITHOUT MINOR CHILDREN WHO DEPEND ON THEM.

Regulation.-

Article 234-6 of the Civil Code of Catalonia.

After the end of cohabitation, the cohabitants can agree on the effects of the termination of the stable partnership.

In the case of agreements reached after the cessation of cohabitation, the cohabitants by mutual agreement or one of the cohabitants with the consent of the other may submit to the judicial authority for approval a proposal for an agreement that includes all the effects that the termination should produce with respect to the common children and between the cohabitants. Article 233-3 applies to the agreements included in a proposal for an agreement.

If there are no common children who depend on the cohabitants, they can regulate the effects of the termination of the stable partnership by means of an agreement drawn up before the legal representative of the Administration of Justice or in a public deed before a notary.

Agreements reached outside the convention are governed by article 233-5.

1.7.- APPOINTMENT OF JUDICIAL DEFENDER IN FILIATION PROCEEDINGS

Regulation of article 235-16 of the Civil Code of Catalonia.

In filiation actions, the lawyer of the Administration The court may appoint a legal defender if the child must intervene through a legal representative and his or her interest justifies it.

2.- SUCCESSION LAW

2.1.- ADVERSION OF HOLOGRAPHIC WILL

Regulation

Article 421-17 Civil Code of Catalonia

2. For the holographic will to be valid, it is necessary:
to) (..)
b) That it be presented before the competent notary so that it can be certified and notarized.

Article 421-18 Civil Code of Catalonia.

The notary competent to certify the holographic will must verify its authenticity in accordance with the law.

If the handwritten will is authentic, the notary must notarize it. Otherwise, he must reject it.

Whether or not the notarization of the holographic will is authorized, the interested parties can assert their rights in the corresponding trial.

Article 421-19 of the Civil Code of Catalonia

Expiration of the will.

Holographic wills expire if they are not presented to the competent notary within four years from the death of the testator for them to be certified and notarized.

If during the period specified in section 1 a claim is filed for the acceptance or rejection of the declaration, the will must be notarized within six months from the moment in which the judicial resolution becomes final.

2.2.- EVALUATION OF THE JUST CAUSE FOR THE EXECUTOR'S RESIGNATION

Regulation.

Article 429-4-1 Civil Code of Catalonia.

The position of executor is voluntary, but, once accepted, even tacitly, the acceptor cannot excuse himself from continuing to exercise the position. without just cause appreciated by the clerk of the Court or by the notary.

2.3.- ESTABLISHMENT OF A TERM FOR THE EXECUTOR TO COMPLY WITH HIS/HER DUTIES

Regulation.

Article 429-13 Civil Code of Catalonia,

If no deadline has been set for fulfilling the assignment and the executors have not fulfilled it within one year from the acceptance of the position, any of the interested parties may request to the notary or the lawyer of the Administration of Justice requiring the executors to comply within the period set, subject to the penalty of termination of office and without prejudice to the liabilities resulting from the delay.

2.4. APPOINTMENTS OF DATIVE EXECUTORS

Regulation.

Article 429-15.1 Civil Code of Catalonia.

If there is no executor or substitute in office and the mission or duties of the universal executors, or the duties assigned to individuals, have not yet been fully fulfilled, any of the interested parties in the succession may request the clerk of the court or the notary to, if they deem it appropriate, appoint one or more dative executors with the same functions and powers as the testamentary executors.

2.5 WAIVER OF INHERITANCE

Regulation.
Article 461-6.1 Civil Code of Catalonia.

The repudiation of the inheritance must be made expressly in a public document.

2.6 INTERPELLATION IN IURE

Regulation.

Article 461-12 of the Civil Code of Catalonia

The right of the person called to accept or repudiate the inheritance is not subject to a term.

Persons interested in the succession, including creditors of the inheritance or the so-called, They can request the notary, once one month has passed from the date of the notification, he must personally request the person called upon to state within two months whether he accepts or rejects the inheritance, with express warning that if he does not accept it, it is understood that he rejects it.

The personal request to the call must be made at least twice on different days. If this request is unsuccessful, the notary must make the request by certified mail and, in the event that it cannot be notified, it must be done through edicts published in the two newspapers with the largest circulation.

Once the two-month period has elapsed without the caller having accepted the inheritance in a public deed, it is understood that he repudiates it, unless he is a minor or a person with judicially modified capacity, in which case it is understood that he accepts it. for the benefit of inventory.

2.7.- REQUIREMENTS FOR ACCEPTANCE FOR THE BENEFIT OF INVENTORY

Regulation.

Article 461-15 Civil Code of Catalonia,

The inventory of the inheritance must be formalized before a notary. The inventory taken can be used to deduct the fourths from the trust or from the inheritance burdened with legacies. However, the inventory formalized by the heir in a private document that is presented to the public administration competent for the liquidation of the taxes related to the succession also produces the legal effects of the benefit of inventory.

3.- REAL RIGHTS

3.1.- AUCTION OF RETAINED ASSETS

Regulation.

Article 569-7.3 Civil Code of Catalonia.

The retainers, if there is no agreement for direct sale, may sell the retained property by public notarial auction, in accordance with the following rules: (…)

Article 569-8.3 Civil Code of Catalonia.

In the absence of an agreement for direct sale, the retainers may carry out the alienation by public notarial auction, in accordance with the following rules: (…)

 

3.2.- OBLIGATIONS GUARANTEED BY A MORTGAGE AND ASSIGNMENT OF THE MORTGAGE CREDIT

Regulation

Article 569-28 Civil Code of Catalonia

A mortgage may be established as security for all types of obligations, in accordance with the provisions of mortgage legislation and with the provisions of the second subsection for each case.

The holder of a mortgage loan or credit who transfers his right You must notify it reliably to the debtor and, if applicable, to the registered owner of the mortgaged property, as a condition for the legitimation of the assignee, indicating the agreed price or the value given to the right and the essential conditions of the assignment. The debtor's waiver of notification at any time is void.

Lleida, July 3, 2017.

 

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