Definicion De La Laguna Legal

However, this does not preclude such a right from being understood as satisfying a declaration of inadmissibility, even if it is rightly declared in the justified application of a legal ground, provided that the statement of reasons corresponds to a constitutional interpretation of legal norms and in the sense most favourable to the realization of that fundamental right (STC, Second Room, No 252/2000, of 30 October 2000 No 2747/1996). It follows from the diction of that provision that the gaps in the normative penalty cannot be configured as definitive gaps in the legal order, but that, in order to fill them, it is necessary to find appropriate remedies which, not being present in the legal texts, serve the courts which must administer justice. Thus, in some cases, the judge will apply one or more texts in a similar way; On other occasions, he will justify the solution he deems most appropriate for the existence of a more or less narrow command, and in the end, he will fall back on general ethical principles or be based on the nature of things. Other forms of solution include a full interpretation of a narrow norm or consultation with other sources of law that equate this type of gap with the legal gap. Our teaching traditionally distinguishes between the legis analogy and the iuris analogy. In the first part of a specific legislative proposal, its essential idea is extracted by depriving it of its side effects, and this essential idea applies to other cases of the same nature as those resolved by law. In the case of analogy, iuris relies on several legislative acts, the factual hypotheses of which are identical in one essential aspect, so that the legal consequences provided for in each of them may occur, and by the introduction is realized a general principle of law that can also be applied to other cases of fact not regulated by law. Lacruz Berdejo describes how the existence of faults was less noticeable in the period before codification; before the French Revolution, the problem of legal loopholes did not exist, since the judge had to find the applicable rule anyway, and in the absence of an explicit rule, he could look for a source of law other than written law, and even if he could not find an answer here either, it was not forbidden for judges to formulate rules in disputes. And they didn`t have to explicitly justify their judgment, so there was virtually no loophole in the law. To fill in the legal gaps, the lawyer usually resorts to the analogy argument, which is based on a reason of similarity, not identity. And the similarity between the case provided for by law and the unforeseen event to which the analogous reasoning must apply must consist in the same identity of reason.

One of the arguments used in the discussion of a legal problem and the meaning of the rule is the so-called A foriori argument, which consists of either extending the legal text to a case not included in its letter, but if in its reasoning or another implicit case, more obvious is derived from an explicit conclusion. This argument is not based on similarity, but on the reason or relationship of the norm, so it is not necessary for two similar or analogous behaviors to occur, but it is sufficient that one of them deserves the normative classification established for the second. Another important technique for resolving “legal gaps” is that of cross-rules with different ranks, main regulation and additional regulation, so that one knows which one should be applied as a priority, and at the same time between the main law and the complementary law, the probability of the existence of gaps in the law is minimized to the maximum. Legal gaps can be defined as an incomplete state of the norm or normative set in which the absence of regulation is not compatible with the meaning, basic ideas and disposition of means for the purposes of the whole standard. Since it is known that the law is a set of rules, it can be defined as the event for which there is no applicable legal norm, but it is assumed that it should be regulated by the legal system, then the event that produces the lagoon is not foreseen in any of the existing cases in the current norms of the legal system, or it may also happen that another unforeseen case for the same case must be added to the expected consequence. On the other hand, it has also been assumed that if the law guarantees freedom, when it does not create an obligation, any claim to conduct will be decided positively or negatively according to the law, whether or not it contains the confirmed legal obligation. However, such assertions about the abundance of the legal system, according to the above-mentioned author, clash with everyday experience in which, apart from very exceptional cases, there are empty spaces in the law, that is, questions that cannot be denied a solution, but that could not be solved by the mere application of a legal text. either because it is not directly applicable (specific shortcomings), or because the new case is completely beyond the intention of the legislature, or because it has not added to the general rule a restriction necessary by the meaning or purpose of that rule or, in short, by the imperfection or error of the applicable law.

Mr. Antonia Osã©s. SAIJ. This glossary contains more than 500 definitions of legal figures contained in the New Civil Code and . However, there are times when the law is not sufficient to determine the resolution of a conflict, and therefore the personal appreciation of specially trained people occurs: a case like this is that of loopholes in the law. What is the historical evolution of the gaps in the law? Given this situation, when asked for a decision, a judge cannot refuse and must fill the legal void with various instruments. The most common are: from a general point of view, one might think that when the law is silent, there is no norm, and in fact, in some cases, the silence of the norm must be interpreted as the absence of a border or sanction, as is the case with the norms of criminal law; In general, however, the silence of the law does not preclude the need for a rule of conduct for cases not provided for in the law, since such cases constitute a gap in the law. It is not simply an issue that is not regulated, but that the law cannot solve a particular problem. Even at the time of the first codifications, there were no legal gaps, since the doctrine was convinced of the fullness of the codified order and considered that it contained sufficient explicit rules for a possible decision. Legal gaps must be filled by a series of intellectual processes that make it possible to elaborate on the basis of the legislation in force and to find solutions to cases that are not expressly provided for in them.

What is the legal justification for filling the gaps? This is called a legal or legal loophole or a legal vacuum (also called a legal vacuum) to the absence of legislative regulation in a particular area. It is a situation of vacuum in the law that the legal pathology has suffered from omitting in its text the concrete regulation of a particular situation, party or transaction that does not find a specific legal answer; This obliges those who apply this law (judges, lawyers, prosecutors, clerks, etc.) to use vacuum replacement techniques in order to obtain an effective response to the aforementioned legal task. Library.Administration of National Parks. Responsible writer. Catalina Coali. The starting point for the choice of words was the compilation of 40©terms. National Archives of Remembrance. Controlled vocabulary of terms©in the HUMAN RIGHTS of the ANM.

Developed by employees of the National Directorate. The most important of these techniques is analogy. With regard to the latter, art. 1 para. Article 4 of the Spanish Civil Code provides that “the analogous application of the provisions shall continue if they do not concern a particular case but govern another similar case in which the identity of reason is assessed”. However, the same provision creates a prohibitive exception to the analogy for criminal, exceptional and temporal laws in article No. 2 by stating that “criminal, exceptional and temporal laws do not apply to cases or cases other than those expressly contained therein”. Carola Vernengo Lezica. Glossary of the Department of Information Security of the Library and jurisprudence of the Council of Magistrates of the CABA. The legal vocabulary of the Library Department and . The jurist can therefore neither make a precise mathematical judgment nor limit himself to making a simple classification of legal norms, but in his argument will intervene factors of a very different nature, such as the sociological factors typical of the development of human life.

Just as mathematical reasoning is based on absolute truths, legal reasoning is based on rules that cannot represent absolute truths, an extreme that is impossible, since on the one hand a solution to a human conflict with the nuances associated with it is sought, but also that the law is written in exhaustive words. subject to different interpretations, so that the legal reasoning is based on a probable importance of the legal norms and leads to equally uncertain conclusions.