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Criminal - P. General. Mitigating outburst or blindness. Civil

Supreme Court Judgement of March 24, 2011.

FIRST: The first reason considers that the contested decision infringes art. CP 20.3 and 21.3, that of the individual to act with a degree of blindness that prevents gauge the severity of the action "given that the appellant comes from a country, Paraguay, where there are many huge problems of survival and poverty rates that drive people to attempt survival, all of which is known to all and need not be under test.

The reason is unfounded and must be rejected. (...)

In this case in the factum is not collected any evidence to underpin the estimation of the defense or extenuating invoked. (...)

b) The same applies to the mitigation of art. 21.3 CP. in effect with respect to the possible existence of the aforementioned mitigating the SSTS. 18/2006 and 487/2008 from 19.1 to 17.7, we said that "jurisprudence of this Court is, for all, STS. 19.12.2002, which are two elements that make up this mitigating factor: cause and effect: 1. There must be a cause or stimulus, which will be important so that could explain (not justify) the criminal reaction that occurred. There must be some proportionality between stimulus and reaction (STS 27.2.1992). Must come from previous behavior of such a victim (12/20/1996 STS). The precipitating reason not to be repugnant from the standpoint of socio-cultural (STS 14.3.1994). 2 º. Such a cause or stimulus must produce a consistent effect in an altered state of mind of the subject, so that his accountability is diminished, not so much that comes to integrating a temporary insanity defense to constitute a complete or incomplete, or so little no more than a mere reaction of overheating or angry or mild numbness that often accompanies some offenses and is considered irrelevant (02/04/1990 STS). Outburst is said when the reaction is temporary and gleaming, immediate stimulus while blindness lasts longer and allows the course of a maximum time span on the stimulus. In any case the course too long excluded mitigating factor (S. 04/14/1992). The third term, the state entity such passion, probably added in 1983 to accommodate the content of these other similar extenuating content for this important legislative amendment were repealed (provocation or threat, vindication next), extends the scope of this mitigating by the will of the legislature, but maybe so superfluous to the extent of the other alternative elements. "

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- Contracts. Action for rescission of contracts in fraud creditors. "Consilium fraudis." Criminal

Supreme Court Judgement of March 23, 2011.

SECOND .- The first complaint alleging the violation of the provisions of Article 1111 of the Civil Code, in connection with articles 1297 and 1291-3 of the same Code, as the applicant understands that the sentence contested states that terminated contracts have been made to benefit a third party or in order to harm the creditor, which makes no reference to the existence of a prior conviction but to a simple car that agrees to dispatch execution, which also states that there is no other assets in the estate of the debtor as of retailers remain solvent and that the plaintiff had to guarantee the selling price recovery that the defendant Parks Inversora SL Corporation had to obtain from their customers, without having significance to the fact that the debtor has been declared legal status later in bankruptcy.

The appeal hearing, after referring to the requirements of action for rescission, states (third legal basis) that the existence of the claim of the plaintiff is credited by the enforcement procedure of the Court No. 233/00 of First Instance No. 4, Majadahonda which sent execution against the assets of Gallery Park Commercial Real Estate Corporation today Inversora SL-SL-Park to cover the amount of 745,680,000 pesetas in principal, on the other hand, it was accredited the conclusion of contracts of sale dated June 26 2000 and October 2, 2000 by which Parks Gallery Commercial Real Estate SL conveyed the farm to United Parks Galleries SL and once it was released execution and writ of attachment as of June 21, 2000. Thus, the Court continues - was no damage to the plaintiff to his action by removing assets that it has no other means of receivables through the termination requested as Corporation Inversora Parks SL was declared legal status of bankruptcy and insolvency final, being the passive than active, by order dated December 29, 2004 issued by the Court of First Instance No. 13 Madrid . Hearing also understands that the purchaser United Parks Gallery SL was complicit in the fraud, since the same individuals, Don Francisco and Don Pedro Casimiro - who represented Parks Gallery Commercial Real Estate Corporation today Inversora SL-SL Park - when the latter bought the plaintiff as of April 27, 2000 certain properties of that debt is the origin of this litigation, are represented in different positions then both defendants to sign contracts June 26, 2000 and October 2 2000, through the companies Payola Management BV, Rannok BV, BV and Studies Redruth, Maintenance and Construction SA

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- P. Special. Offenses against the rights of foreign citizens. Crime of human trafficking. Civil

Supreme Court Judgement of March 23, 2011.

FOUR. - The third reason is configured, for violation of law, under n º 1 of art. 849 of the LECr . by misapplication of art. Bis 2 CP 318.

1 .- The appellant argues that there is no element of "exploitation" as profit or benefit, own the art. 318.2 CP, because for the amounts withheld were just due, sufficient to pay the expenses actually incurred and those that were generated in concept and lodging, and upon payment of the debt, the women stayed with the all money received for their services, must be able to leave the premises and work. Equally the appellant is his acquittal by the unusualness of his conduct, once the LO.5 / 2010 of June 22, the deletion of paragraph 2 of art. 318 bis of the CP.

2 .- As we saw with respect to the first plea above, the factual narrative of the sentence, which in this way must be respected, discloses that the defendants facilitated and managed to enter Spain from various Brazilian girls in order to be prostitutes, precisely at the Club Las Musas who ran both appellants through a society by imposing a debt exceeds the amount of the bills and other expenses incurred so that until it was not fully paid the girls did not get any money for sexual services rendered , behavior that describes a form of sexual exploitation and integrates sub-compounded expected before the reform-in paragraph 2 of art. 318 bis of the Criminal Code, as rightly argues that the lower court following the jurisprudence in this area to perform the legal subsumption of facts, the typical behavior of art. 318 bis of C. Criminal consumed with the implementation of promotional activities, enabling or facilitating illegal immigration or trafficking, aggravated by the second section where the purpose of these activities were sexual exploitation. For the consummation is quite the execution of those behaviors with the aforementioned purpose, without a subsequent act, that is, need not reach sexual exploitation to take place and even that the victims were somehow compelled to lend to it.

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- Family. Marital crisis. Alimony. Fixation for life. When reasonably supported in a dearth of real possibilities for the wife to obtain a specific deadline for a job that allows you to enjoy their own means to act autonomously, so that the function of restoring the balance inherent to alimony can only be understood fixing for life fulfilled. Criminal

Supreme Court Judgement of March 14, 2011.

FIRST. - Abstract background.

1. In the contentious divorce proceedings at the behest of the husband followed his wife defendant counterclaimed seeking, among other matters, a compensatory pension amounting to EUR 6 000 per month with no time limit expression. The proposal by the husband in his demand was the payment on this account of 1 000 euros per month, tightening therefore the discrepancy only to the amount.

2. The Court partially upheld the claim and agreed, in terms of alimony, award to the wife in the amount of EUR 2 800 per month with no time limit, which justified with generic reference to the circumstances outlined in Article 97 had been tested DC .

3. On appeal is upheld the appeal of the wife in the sense of raising the amount of alimony the sum of 3 500 euros per month, and was rejected by the husband made it reiterated its desire to be limited to the sum of 1 000 euros / month. The decision AP is based on the existence of an imbalance to the wife resulting from the break, and in attendance, as circumstances determining this and also the amount and indefinite duration, of the following: 1) the duration of marriage (26 years), 2) their age to get it and the current 25 and 24 years of age, compared to 51 and 50, as of the appeal decision, 3 º) the continued dedication of the wife to care for children giving up work, 4) to near impossibility of entering the labor market in these circumstances and 5) the income gap, with husband accredited around EUR 227000 given numerous properties and businesses.

4. Against that decision on appeal and used extraordinary procedural violation the plaintiff, having accepted only the first. SECOND

. - Listing the reason first and only appeal.

The reason, which is introduced with a proprietary formulation of a written statement, revolves around the violation of Article 97 CC from two perspectives: on the one hand, from the standpoint of the amount of alimony , which is considered excessive in relation to which care was appropriate in the circumstances referred to in that provision, concurrent in this case, again according to the particular valuation of the same is offered in contrast to that adopted in the contested decision, on the other, and for the first time on appeal, from the perspective of his life, defending a time limit for perception (four years according to their reasoning, five years under the terms of beg), in accordance with the doctrine of this Court, said infringed, that supports this (SSTS of February 10 and April 28, 2005) .

The plea must be rejected.

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- P. Special. Crime on the Treasury. Civil

Supreme Court Judgement of March 17, 2011.

FIRST .- (...) The events consist of qualified and, in short, that the defendant "consciously failed to return for the tax on profits in fiscal 1994 having failed to enter for that concept 64,521,363 pesetas (387,781 euros). "

" also ordered to be submitted on time but in a deliberately incorrect statements relating to value added tax the years 1994 and 1995 respectively, having left to join the detriment of public finances respectively 36,898,487 pesetas (221,764.37 euros) and 49,440,888 .- pesetas (297,145.72 euros).

"also in respect of corporation tax for the year 1994, and the added value tax for the years 1994, provided for the establishment for their contribution to the Finance Bill 01/14/1998 created at his request and collected supposedly nonexistent services provided by Housing Promoted entities, SL, palm Building and Structures, SL:, zaers, SL, Area 92 SL, SL Tecma Technical, Construction and Maintenance Zamora Brothers SL and SL, in order to reduce the amount due in taxes mentioned. These bills are: (...)

SECOND .- The defendants appealed the aforementioned decision on appeal but only with respect to crimes against the Treasury , "and no statement regarding the conviction for the crime of falsehood. "

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- Contracts. Urban leases. The lease entered into by one spouse constantly marriage is not part of the marital property and is governed by the provisions of the LAU with regard to surrogacy because of death of the spouse who owns the lease.

Supreme Court Judgement of March 24, 2011.

SECOND .- The appeal is based on breach Article 16 of the Tenancies Act 1994 and the existence of appellate interest in its mode of conflicting jurisprudence of provincial courts. The legal question raised focuses on determining whether the deceased owner signs a lease for housing, the surviving spouse should be subrogated to the contract to continue the lease or remains the holder of the original tenant as despite not be the formal contract subscriber. To do this, the applicant demonstrates the existence of two different current case law held by provincial courts in order to decide whether, in cases in which the rentable contract has been signed by one spouse, marriage constant, under the matrimonial regime and the purpose of establishing the family home, after the owner died, the surviving spouse should be considered as a joint tenant or not. If so, as argued by the Provincial Court , would not apply Article 16 Act of Urban Leases November 24, 1994, as the joint tenant would not have to subrogation in the lease entered into by her husband , as the owner of the contract.

In defense of this position is added to the sentence appeal, in the case under review, the lease was formalized in 1970, when the wife had limited legal capacity, so the husband was the sole administrator of the conjugal partnership.

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Criminal Procedure. Criminal - P. Special. Circumstantial evidence. Drug trafficking. Civil

Supreme Court Decision of March 22, 2011.

FIRST .- (...) both TC (S ª 174/85, 175/85, 160/88, 229/88, 111/90, 348/93, 62/94, 78/94 , 244/94, 182/95) and the same room, have pointed out that the right to presumption of innocence does not preclude a conviction in a criminal court can be formed on the basis of a test circumstantial, but the presentation of evidence should satisfy certain requirements to be considered as evidence of guilt sufficient to rebut that presumption constitutional. We agree in stressing as requirements that must satisfy the following circumstantial evidence: that the evidence, which must be plural and uniquely adversarial in nature, are quite reputable, that they flow naturally, following the logic of rules human experience, the consequences of the appellant's involvement in the crime he was charged and that the court must explain the reasoning by which, based on such evidence tested, has become convinced that the defendant made the conduct a crime. In short, as noted by the Constitutional Court Judgments 24/1997 and 68/98, that circumstantial evidence has fully proved facts from which the facts constituting the offense must be deducted from such evidence (facts fully tested) through a reasoned thought process and in accordance with the rules of human criteria, as stipulated in the sentence.

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- D. Real. Condo. Installation of lift. Creation of easements on private elements. Majority.

Supreme Court Judgement of March 24, 2011.

SECOND .- The first ground of appeal is based on breach Article 11.4 of the Condominium Property Act and jurisprudence of the Supreme Court contained in the Judgments of 19 December 1990, March 23, 1991 and June 11, 1994, upon the consent of the owners of the scheme condo in order to carry out works that affect private elements. The plea must be rejected. The rulings cited no similar factual circumstances reflected the determined by the ruling that is used, which turns out to be one of the essential prerequisites for the estimation of an appeal based on the existence of interest on appeal. They examined the express consent as a prerequisite for adopting an agreement by the community ownership, involving the assignment or removal of an exclusive element. In this case, you must indicate the Provincial Court has concluded that the plaintiff consented expressly, in the same time it was unanimously agreed to the installation of the elevator, and fully accredited this because it believes that that time the owners were already aware, and indeed the plaintiff, an architect by profession, that this facility could only be viable under two possibilities and both assumed the involvement of private elements. It therefore believes that conduct is contrary to the doctrine of estoppel from challenging the subsequent agreement location of the lift, founded only in the opinion of the Provincial Court in the fact that it has adopted the alternative to the beloved by the plaintiff. In short, the appellate interest claimed to be nonexistent.

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Civil Procedure. Res judicata. The effects of res judicata extends not only legal facts and grounds alleged, but to those who might have argued in the first process or the above process. Also extends to the correction of those errors occurred in the previous lawsuit yaa issues that have been inferred implicitly on demand. Civil

Supreme Court Decision of March 21, 2011.

THREE. Second. Breach of Article 1252. 1 CC, as the contested decision rejecting the demand for updating the compensation to reject the validity of analyzing whether or not the court's ruling number eight in an implicit condemnation insurers to payment date of compensation to which they were convicted by the preclusive effect of res judicata. Are only likely to produce the effect of res judicata the final judgments, subject to rule on the substance of the matter, so have no res judicata effect of judgments given in summary proceedings or execution. Therefore, this room must rule on the merits of the requested update for this part and in particular on whether the ruling of the Court No 8 Madrid, 16 December 1993, includes implicitly the requirement for insurers to update the amount to which were convicted once liquidated.

The previous occasion will be considered in conjunction with the third, who denounces the violation of Article 1252. 1 CC, under Article 400 and Article 743 LEC/2000. 1 LEC and the case develops. The appeal decision has erred in dismissing the claim raised by the appellants update to appreciate and understand that res judicata can not be segregation process as set forth herein, not having asked for the upgrade in the previous procedure, which excluded ability to apply later. And all this without taking into account that different claims are exercising, because although it is understood in the first procedure did not recognize the right to update the compensation, the issue could arise in the current ex novo.

The second and third are rejected.

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- Obligations. Tort. Abuse of a diver by a motor vessel resulting in serious injury. Responsibility of the operator of the boat's default could require extreme diligence in response to the extraordinary risk that arises who runs a pleasure boat, top, and completely oblivious to the assumption by the victim to the sport. Civil

Supreme Court Judgement of March 14, 2011.

FIRST .- Abstract background.

1. A following the accident on August 13, 2000, consisting of a collision with a diver by a motor boat, resulting serious injury, followed before the Magistrate's Court No. 3 of the trial of misdemeanors Tortosa No. 168/01, in which the initial conviction was overturned pilot reported on appeal by the AP that acquitted him in response to doubts as to the exact spot where the accident had prevented attributing negligent conduct. The court's ruling was temporarily implemented, leading to the insurance company slogans in favor of the injured party the amount subject to a sentence (principal and interest), that subsequently returned as a result of the acquittal enacted in the second criminal court.

2. The injured party filed suit against the employer or operator of the boat, the owner, and the entity which guaranteed civil liability, claim appropriate compensation for personal injuries and material damages suffered, plus the respective legal interests (from any judicial with respect to the first two defendants, and Article 20 LCS delay with respect to the insurer), and costs of litigation. Alternatively, the claim against the insurer was limited as to principal, the limits of compulsory insurance.

3. The complaint was partially upheld by the court, which observed a concurrence negligent conduct and 25% attributed responsibility to the victim. The sentence imposed on the insurer requested the default interest at the rate of 20% per annum from the date of the accident.

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- Estates. Wills. Interpretation of the testamentary provisions. Trust if Liberis decesserit sine.

Supreme Court Judgement of March 18, 2011.

FOUR. The interpretation of testamentary provision.

The seventh clause of the will of the deceased D. Celestino contains a trust if sine Liberis decesserit, interaction between the testator's grandchildren who are both trustees and beneficiaries. This conclusion differs from that held in the contested decision, but she can be reached by interpreting the will in accordance with the provisions of art. 675 CC, which is claimed to be infringing on the appeal.

The real intention of the testator must be inferred from the literal meaning of words used, which does not exclude the possibility, according to art. 675 CC, which clearly proved that it was another. Hence, the jurisprudence of this Court has said that if the words are clear, are to be interpreted literally, unless it clearly appears that it was the testator's another, "without lawful search the interpreter of other evidence beyond the literal "(SSTS of June 18, 1979, March 24 and June 8, 1982, March 26, 1983). The sentence of 22 November 2010 once again raises the problem of interpretation of the testamentary provisions and notes that "The declaration of intention of the testator is the object of interpretation and to be always expressed in words, required to determine if the apparent meaning real matches and while the interpreter can not replace the will and testament, which can and must do is clear, objective criteria, which appears dark in an arrangement. But this should be done after examining the arrangements discussed and gauge whether the clause or the provision at issue are truly dark. " Also, Judgement of 2 November 2010, declaring the preference of the will of the deceased on the literal interpretation of the terms used.

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Criminal Procedure. For costs. Including the costs of the prosecution. Civil

Supreme Court Judgement of March 15, 2011.

FOURTH: The first reason for violation of law under the provisions of art. 849.1 LEC. for having violated criminal provisions of substantive character, particularly the arts. CP 123 and 124. and legal doctrine and jurisprudence, given that the order for costs should be included those generated by the standing and intervention in the case of individual allegations. Not being true that the coast has been requested since the public prosecutor, in his provisional qualifying expressly requested the court costs, and although it is true that this part of the provisional indictment failed to respect such a request, in the act of trial acceded to requests made by the prosecutor and did request the imposition of costs of prosecution.

Therefore when applying for the assessment of costs, if only he had asked the Public Ministry, there is no express exclusion of the prosecution, and should therefore included, as the art. CP 123, as a rule, because their performance has not been useless or superfluous.

The plot development is necessary to recall the reason the doctrine of the Board regarding the taxation of the costs of bringing a private collection, among others, SSTS. 833/2009 of 28.7, from 24.3 335/2006, 1510/2004 to 21.11, 1731/2001 to 9.12, remember, that the costs of the private prosecutor to be included among the sentenced imposed, unless the claims that were manifestly disproportionate, misleading or heterogeneous with respect to those deduced by the prosecution or contained in sentencing, relegated into the background the old criteria of relevance.

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- Contracts. Supply contract. Stay of execution for failure to supply the other party to any delay in paying the price. Exceptio non adimpleti contractus. Criminal

Supreme Court Decision of March 11, 2011.

SECOND. It follows from the judgments of the two instances Pottery MMM, SL, having taken the decision to suspend the supply for the relative lateness in paying the price, expressed readiness to resume if the applicant paid to ensuring good securities that surrender.

The Provincial Court in its ruling argued that the "delays paying the price in fully justify, in accordance with good faith, the obligation to provide guarantees, "even though the same had not been agreed.

I. In the first ground of appeal, WWW, SL states as the rules violated in the sentence appeal, the provisions of Articles 58 of the Code of Commerce, 1,258 and 1,828 of the Civil Code, arguing that the principle of good faith the performance and interpretation of the contracts did not cover the possibility of unilateral modification and therefore did not justify Pottery MMM, SL impose an obligation to ensure the success of the notes handed him in exchange for each one of its unique features, since, as the Court of Appeal, was not the parties agreed to create the "lex privata" or contractual regulations which must adapt their behavior.

II. To decide the issue has assumed that what the Court of Appeal said it is not - or not so much - that the supplier may require the appellant now to ensure the successful completion of payment promises embodied in the promissory notes give him - which, really, had not agreed - but the suspension was justified by supply prior non-compliance by the required payment of the price of regulation contract initially created.

III. The plea must be rejected.

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- P. Special. Illegal detention.

Supreme Court Judgement of March 15, 2011.

SECOND: (...) As we said in STS. 922/2010 of 28.10, the legally protected by the crime of illegal detention is individual freedom and involves trapping or detain a person, deprived of their liberty, affecting, within that genre, liberty ambulatory (SSTS . 79/2009, 10.2, 923/2009 of 1.10): The shape is represented cornice by the nuclear verbs by "locking" or "stop" representing unfairly coercive acts for a person, carried out against their will or without it affecting a fundamental right which is the same freedom enshrined ambulatory in the art. 17.1 CE. That unfairly curtails freedom by forcing a person to remain in a particular site closed ("locked") or is prevented from moving in an open space (or "detention") (STC 178/1985).

The jurisprudence of this Court has noted that "the crime of false imprisonment, deprivation of freedom of movement of the taxable person by conduct that would be within the meaning of verbs lock or stop. Instant is a violation that is consumed from the moment that the arrest or confinement takes place, but time is a factor that should be valued, as is necessary for the consummation of a minimum relevant "(STS n º 812/2007, of October 8). In a similar vein, it was said in the STS No 790/2007 of 8 October that "the nuclear verbs such illegal detention are" locked up "and" stop. " In both cases, the taxpayer is deprived of the possibility of moving place according to his will. In both cases also significantly limited the right to walking while somehow prevents free will in outreach and physics of the human person. If enclosed, deprivation of freedom walking because it is the person within the space limits the length, width and height, change also stop at this functional limitation but in different ways because, without locking materially undertakes to immobility (see in this regard Judgement of November 28, 1994). This offense is projected from three perspectives. The active subject who intentionally limited ambulation of another, the subject person who is mentally or physically disabled-constrained, against his will, and for one last time as a determinant of the deprivation of freedom, although it appears that the consummation originates from the arrest occurs. The type described in the art. CP 163 is a crime that is characterized by the concurrence of the following criteria: 1) the objective element of the type involving deprivation of liberty Wanderings of the person, both physically imprisoned, and stopping, ie, preventing their movement and it is not necessary, then a physical "custody." And that detention is unlawful. 2) the item subjective type, criminal intent, is that the arrest was made in an arbitrary, unjustified, intentional essentially still a crime in which the commission can not be negligent. "

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Civil Procedure. Taxation. Legal Challenge for excessive fees. Challenge is upheld. Criminal

Supreme Court Order of March 8, 2011.

FIRST .- Regarding the challenge to the taxation of costs by the inclusion of excess items should be noted that as this court has already ruled in other cases (Car of 8 November 2007 and 8 January 2008) is not predetermined, set or decide which should be the legal fees of the party favored by the order for costs because the work he is paid by the party who defends and with whom you link a service tenancy, freely agreed upon by the contracting parties but to determine the load to be borne by the convicted person to pay the costs for legal fees minutante, because although the order for costs is intended to compensate the winner of the direct and immediate costs incurred in litigation between including fees counsel, the minutes included in the appraisal should be a weighted average and reasonable within the parameters of the profession, not only calculated according to size criteria, but well suited to the circumstances in litigation, the complexity of the case, the phase of the process in which we are, the grounds for appeal, extension and development of the written objection, the involvement of other professionals within the procedural position and the minutes they made for the purpose of inclusion in the taxation of costs, without, for fixing the reasonable average to be included in the taxation of costs is binding on the mandatory report from the Bar, nor does it minutante assume that the lawyer can not bill your represented the full amount of the fee arrangements with his client for professional services.

Based on the above criteria, in particular the effort of dedication and study required by the circumstances, the economic value of the pretensions of the litigation, the complexity and importance of the issues raised at this stage of the procedure, Guiding rules of the Bar, the written statement, on the possible grounds of inadmissibility that could be seen, and considering, as explained, it is not setting the fees derived from services of the lawyer-client minutante that freely elected him, but to quantify a claim arising from the application of a procedural principle of objective maturity, Court must uphold the challenge made by fixing the amount of the controversial bill in the sum of 637.20 Euros, including tax.

[see CENDOJ Court Database ]