The legal assumption it is an abstract fact that can produce a legal effect with consequences. The legal consequences set by a norm depend on the realization of the hypothesis. The legal effects that derive from the execution of the legal assumption consist of creation, transmission, modification or extinction of rights and obligations..
The legal assumption is considered an abstract element, since the fact itself can be carried out in practice or not, although the legislation believes that its realization is feasible. In the event that it is realized, the legal assumption established by law must be adjusted with the fact.
For example, in the field of criminal law it is required that it totally coincide. A simple analogy is not enough. On the other hand, legal assumptions are the origin of rights; For example, giving birth to a baby leads to rights, such as parental authority or maternity leave.
In any case, it is necessary for the legal assumption to occur, the hypothesis raised in the legislation, for the established consequences to arise..
Article index
The classification of legal assumptions begins with simple and complex legal assumptions, and these can be classified into independent and dependent. The dependents can be successive and simultaneous.
Simple assumptions are those that are created under a single hypothesis; on the contrary, complex assumptions are the result or consequence of several facts or hypotheses.
Complex legal assumptions can be independent if one of these is sufficient for the legal consequences to occur.
In these cases, each of the facts is a complete title that gives rise to the consequences by itself, without the need for other facts to concur..
On the other hand, they are dependent legal assumptions if they are considered as a part of a set and, consequently, they do not have legal force in a singular way to derive legal consequences.
The dependent legal assumptions will be simultaneous if it is necessary to carry out, at the same time, the legal facts.
On the other hand, they are dependent and successive legal assumptions if the facts that give rise to the legal consequence must be carried out one after the other; that is, successively.
There is a clear link between the legal assumption and the legal consequences. Some jurists like Helmholtz equate it to the link between cause and effect in nature. Every rule establishes that in specific cases there are specific consequences.
The legal consequences derived from the legal assumption may be the birth, transmission, modification or termination of powers and obligations..
An example of legal consequence can be seen in criminal law in article 138 of the Spanish Penal Code, which indicates the following: “Whoever kills another will be punished, as guilty of murder, with a prison sentence of ten to fifteen years ".
The legal assumption is to kill another person and the execution of this hypothesis results in the legal consequence of the deprivation of liberty of the subject who commits the crime for X time.
There is some similarity to Newton's law of the principle of action and reaction, which explains that every action produces a reaction. In this case, any legal assumption carried out results in a legal consequence.
A company that conducts business in the purchase and sale of merchandise has a legal obligation to present its accounts annually within a set period of time. That would be the legal assumption that produces the creation of an obligation to present the accounts.
If the company does not do so, the consequence is produced: a sanction by the competent governmental entity.
A driver, who owns a vehicle with more than 4 years, is obliged to periodically take it to pass the ITV.
If this legal assumption is not fulfilled and the police are aware of this infraction, the established consequence of an economic sanction occurs, as well as the impossibility of using the vehicle while the situation is not regulated..
Two partners share the management of a limited partnership. One of them acts fraudulently, hiding part of the profits from the other partner.
In this case, there is a legal assumption of fraudulent act of fraud, which will have legal consequences of financial sanction and even criminal sanction if fraud is proven. It is called the crime of misappropriation according to article 251 of the Penal Code.
An employed person is a father. Immediately, when this assumption occurs, the father is entitled to paid paternity leave, which he has the right to claim and enjoy within the limits of legality. Article 48 bis of Royal Legislative Decree 1/1995, indicates the following:
"In the event of child birth, adoption or foster care in accordance with article 45.1.d of this Law, the worker will have the right to suspend the contract for four uninterrupted weeks, extendable in the event of multiple birth, adoption or foster care in two more days for each child from the second.
This suspension is independent of the shared enjoyment of the maternity rest periods, regulated in article 48.4 ".
A young man of 18 has sexual relations with a girl under 15 years of age. It is a legal assumption protected by article 183 of the Penal Code:
"Anyone who performs acts of a sexual nature with a minor under the age of sixteen will be punished as responsible for sexual abuse of a minor with a prison sentence of two to six years".
The legal assumption has the consequence of the prison sentence for the 18-year-old.
This distinction between the two concepts is fundamental to law, since while the legal assumption is an ideal, the legal fact is a reality, a feasible fact..
Distinguishing assumption and legal fact greatly affects the delimitation of the titles of the obligations and the sources. It is a controversial issue with opposing opinions among jurists.
Yet No Comments