General

Examples of jurisprudence

The jurisprudence is closely linked to the law and is governed by three parameters of great importance. In the first place, jurisprudence is defined as a set of sentences established and handed down in different courts or tribunals.

On the other hand, jurisprudence refers to the criterion used in a certain judicial problem and that has been established in previous sentences and to the science of law in a more general context. Finally, the term jurisprudence refers purely to the science of law.

Within the field of law, the importance of jurisprudence lies in the fact that due to it it is possible to solve problems and errors that may exist within a legal system and this through the use of legal content that can be used in future cases. that have a certain similarity.

Examples of jurisprudence

  1. The Supreme Court opts for reciprocal compensation at 50% when the culprit cannot be proven in a traffic accident

The Civil Chamber of the Supreme Court, meeting in plenary session, has established doctrine in its Plenary Sentence 294/2019, of May 27 (Resource 2999/2016) on the solution applicable to cases of damage to property caused by the reciprocal collision of vehicles without determining the degree of fault of each driver.

To do this, it takes into account that the legal regime of civil liability in the field of motor vehicle circulation is based originally on principles of social solidarity with the victims of traffic accidents, rather than on the principlestraditional tort liability. This explains that compensation for damages to persons is only excluded due to the sole fault of the victim or force majeure extraneous to the driving or operation of the vehicle, which is equivalent to a liability without fault of the driver. In such cases, if there is no proof of the degree of fault of each driver, the sentence 536/2012, of September 10, in full, established jurisprudence in the sense that the solution of the proportional compensation is appropriate only when the concrete can be proven. percentage or degree of causal incidence of each of the vehicles involved; otherwise, both drivers are liable for the total personal damage caused to the occupants of the other vehicle in accordance with the so-called cross-compensation doctrine.

The new sentence of the plenary session completes this jurisprudential doctrine for cases of damage to property, in which the civil liability regime is no longer based on that principle of social solidarity , but on the fault or negligence of the driver causing the damage, with the reversal of the burden of proof that results from the LRCSCVM and the general principle of liability for risk that presides over said norm.

When none of the drivers can prove their lack of fault or negligence in causing the damage to the other vehicle, three possible solutions would in principle be possible: (i) that each driver fully compensates the damage of the other vehicle; (ii) that the faults are neutralized and then neither should compensate the damages of the other vehicle; and (iii) that each one assumes 50% compensation for the damage of the other vehicle.

The court considers that the third solution is the most consistent with the effectiveness of the coverage of property damage by the compulsory motor vehicle insurance, since either of the other two could completely deprive the individual of compensation, unjustifiably, Vehicle owner whose driver was not the cause of the collision but failed to prove his fault, or could result in full compensation to the owner of the vehicle whose driver was the cause of the collision but there is no proof about it.

  1. Expectation of confidentiality: when it is legal to check a worker’s web history and when it is not

The resolution of the Superior Court of Justice thus collects the national and international jurisprudence on labor control of employers and privacy.

In this sense, the Andalusian Court brings up:
1. The Sentence of the Social Chamber of the Supreme Court of September 26, 2007, which declared the nullity of the evidence obtained for violation of the worker’s right to privacy by checking the personal files from the worker’s computer.
2. The Sentence of the Constitutional Court 170/2013, of October 7, which introduces the question of “expectation of confidentiality of the worker”.
3. The Judgment of the European Court of Human Rights of the Grand Chamber of September 5, 2017, Barbullescu II case, which declares the violation of article 8 of the European Convention on Human Rights for monitoring the email tray of a worker at that he had not been informed that he could be monitored or that his account could be accessed.

The current regime resides in article 87 of the Organic Law on Protection of Personal Data and Guarantee of Digital Rights. This article regulates the relationship of workers’ rights with respect to business control. However, this regulation is not applicable to the case as it does not enter into force until December 7, 2018.

  1. The activity carried out in the same sector but in a different commercial field does not violate the non-competition clause

After the termination of the employment contract, the worker regains full freedom of economic initiative, being able to develop competitive activities with those of his employer. Now, the question that the court is essentially trying to clarify is whether the activities carried out by the defendant in both companies are capable of altering the contractual non-competition clause.

The jurisprudence is favorable not to prevent the worker from taking advantage of the relationships with the clients made available by the company (STSJ Madrid of 10-05-2004 nº 656/2204). However, the prohibited competitive activity must be limited to a specific activity, not being an absolute prohibition but limited to the same market and potential circle of clients (STSJ Cataluña 23-12-14, nº 7045/2014).

The court affirms that said competence is not determined by the sector, but by the specific activity carried out, in such a way that both entities are substitutable for each other. In this sense, the second of the mercantile companies carried out activities with Colleges, taking charge of preparing the menus and selecting the products, an activity that the first of the entities did not carry out. Along these lines, the resolution states that “it is one thing for both companies to carry out their activity in the same restaurant sector and another very different thing for them to concur in the same commercial, market and potential circle of customers.”

  1. Judgment No. 910 of the Supreme Court of Justice – Constitutional Chamber of October 28, 2016

Thus, article 59 of the 1961 Constitution provided:

Article 58. The right to life is inviolable. No law may establish the death penalty or any authority to apply it.

For its part, article 43 of the Constitution of the Bolivarian Republic of Venezuela the Bolivarian Republic provides:

Article 43. The right to life is inviolable. No law may establish the death penalty, or any authority apply it. The State shall protect the life of persons who are deprived of their liberty, rendering military or civil service, or subject to its authority in any other way.

Hence, no act, such as the aforementioned Presidential Decree No. 1,810 dated 10/28/1987, published in the Official Gazette of the Republic of Venezuela No. 33,838 of 11/4/1987, or the order of operations called ANGUILA III, could justify per se the deaths that occurred in the Caño La Colorada sector, jurisdiction of the Municipality of El Amparo, DP, of the Apure State, on October 29, 1988, in what it has known, as the massacre of the protection, such as is clear from the communicational notoriety.

Indeed, although both invoked causes of justification, in terms of their legal effects or consequences, exclude the element of unlawfulness and, therefore, the criminal nature of an act, which is ordinarily provided by law as a crime, it does not However, both exemptions of criminal responsibility obey different situations, grounds and requirements.

Thus we have that the legitimate exercise of a right, authority, position or office is based on a faculty that responds to interests and values ​​of the social body, which are considered necessary for its healthy development and operation, such as: training of children, public order, the exercise of certain professions or sports activities, which, in short, the State considers useful and necessary from the social point of view for the protection of rights and the encouragement of a healthy life of each one of your associates.

Thus, such causes of exclusion from criminal unlawfulness do not seek to protect or defend an interest or right against a situation of illegitimate aggression, but to constantly update an end, interest or superior value of transcendental importance for the State, by granting of certain powers, faculties or rights of citizens who, due to their personal, public or professional condition, are called to impose or generate on others a legal duty necessary for adequate social coexistence, without crossing the barrier of rights that correspond to these last.

Indeed, in contrast to the above, legitimate defense is a typical case of defense of a legal asset recognized by criminal law, in the face of unjust and unprovoked aggression. It is a defensive reaction against the attack, to the illegitimate action aimed at offending a legal right. The legitimate exercise of a right, authority, position or office does not suppose an attack, nor a defense action, but the exercise of a power, the updating of a right or an activity, within the limits authorized by law, even when this may be detrimental to other rights.

In legitimate defense, the conditions required by criminal law must be met, that is, illegitimate aggression, the need for the means used to prevent or repel it, and the lack of sufficient provocation on the part of those who claim to have acted in self-defense. The legitimate exercise of a right, an office , position or authority (which in turn implies differences with respect to each of these causes of justification), only requires that its field of action be carried out within the limits allowed by the law. own law.

Thus, those deaths of people that occurred as a result of alleged armed confrontations with the security and public order organs of the Venezuelan State did not exclude in advance the responsibility of the officials who participated directly or indirectly in them, who should be subject to from an investigation and only be exempt from liability when the requirements of legitimate self-defense or third parties are actually accredited, and not – as the judges who signed the sentence under review – did not understand the legitimate exercise of the position or authority; because it is insisted that killing others is not part of the attributions of any position or authority.

In addition to the above, and as the representation of the Public Prosecutor’s Office clearly notes, the Chamber must add that of the evidence brought to trial, all taken together, do not account for an armed confrontation between the accused and the fishermen who were killed in the done; Quite the contrary, the existence of another vessel that moved through the pipe jointly with the one that was manned by those who were killed was not credited.

They were in an open area, specifically, on an embankment, being exposed to the fire of the mixed commission that was in the corvette. Most of the injuries sustained by fatalities, specifically ten out of fourteen, were sustained in the back, which at least casts doubt on the alleged hand-to-hand confrontation (current assault).

Nor does the file rest on the technical evidence of certainty or at least of guidance that allows determining that the victims manipulated or operated some type of firearm against the mixed commission that shot them taking their lives, all of which generates uncertainty as to the occurrence of the alleged sustained confrontation between victims and perpetrators.

  1. First sentence granting joint custody of the dog in case of separation

Companion animals may be the object of shared custody in cases of separation of the couple and in cases of divorce. This is established by the recent resolution of the Court of First Instance number 9 of Valladolid dated May 27, 2019 on the custody of the dog ‘Cachas’, the first judicial sentence that considers the joint custody of animals in the event of separation of the couple .

It establishes that animals cannot be treated as mere movable property, but are “beings endowed with sensitivity” and therefore must “attend to the welfare of the animal” when discussing legal issues that affect their property, such as right of ownership or the right of use and enjoyment.

In this way, the judge decides that the furry, jointly owned by the two members of the couple, will be with his owner in Alicante from September 1, 2019 until March 1, 2020, and from 2 March 2020 until September 1 next it will be in Valladolid with its owner, who will have the possession, enjoyment and custody of the dog during that period. This decision is taken, not taking into account the civil co-ownership rules as it used to be done until now, but taking into account the “interest and welfare of the animal”, as well as that of the family and those involved.

The resolution contemplates the possibility that the owners can visit the dog when he is at the other’s home at least one weekend a month, from Friday afternoon to Sunday afternoon.

In this case, the other co-owner must be reliably notified a week in advance.

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