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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to accommodate the content of these other similar extenuating content for this important legislative amendment were repealed (provocation or threat, vindication next), extends the scope of this mitigating by the will of the legislature, but maybe so superfluous to the extent of the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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