Principio De Legalidad Formal Y Material

From Aboga2, our defense lawyers will try to resolve all your doubts regarding the principle of legality or the rule of law. In a broader sense, the principle of reservation of rights is the set of provisions whose regulation concerns only parliaments and which must be defined in the form of a law. Within the framework of the principle of legality, it acts in conjunction with the principle of the general interest, according to which the private interest must give way to the public or social interest, and with the principle of the separation of powers, according to which the public authority is divided into bodies with specific and limited functions for each of them. Content: the elements that make up the principle of legality. On the one hand, it can be examined according to the literal content of legality from a formal point of view and in its substantive sense: the principle of legality, together with other general principles of law, is the origin and basis of the rules. General principles take precedence over other sources of law. They are the basis of positive law. According to the principle of legality in criminal law: on the one hand, Article 9.3 of the Spanish Constitution recognises the principle of legality and refers expressly, albeit imperfectly, in Article 25(1), to the principle of criminal legality: Paul Johann Anselm von Feuerbach established this principle in criminal law on the basis of the maxim nullum crimen, nulla poena sine praevia lege, i.e. in order for conduct to qualify as a criminal offence, it must be described in this way before it is committed and the penalty imposed must be determined in advance by law. In the principle of legality, two types can be distinguished: the principle of legality is a fundamental principle used by most States, according to which any exercise of official authority must be carried out in accordance with the law in force and its jurisdiction, and not according to the will of the people. If a state adheres to this principle, then the actions of its powers are subject to the Constitution and the current state or rule of law.

The principle of legality consists in giving precedence to the law over any activity or function of public authority. Finally, the principle of legality is also recognized in several norms with an international dimension, such as article 11 of the Universal Declaration of Human Rights; Article 15 of the International Covenant on Civil and Political Rights and article 7 of the European Convention for the Protection of Fundamental Rights and Public Freedoms. “The Constitution guarantees the principle of legality, the hierarchy of norms, the publication of norms, the prohibition of retroactivity of sanction provisions that neither promote nor restrict the rights of individuals, legal certainty, liability and the prohibition of arbitrariness of public authority.” To punish an act, it is necessary that there be a previous formal criminal law that qualifies it as a crime. Therefore, it is necessary to clarify the requirements of this criminal law: The rule of law is based on three main principles: In criminal law, the principles of Spanish criminal procedure are governed by different rules. The importance of the principle of legality is undisputed in all areas, but especially in administrative law. Among other things, because the administration must adhere to a hierarchical legal system according to this principle. Criminal legality is thus a limit on the punitive power of the State in that only conduct expressly designated as a crime in a law prior to the commission of the offence can be punished. This relationship between the principle of legality and that of the reservation of rights is generally established – in a democracy – in the so-called legal system and is treated in a particularly dogmatic way in constitutional, administrative, tax and criminal law. Serve a sentence so that those involved in the sentence can repeat the crime that may have arisen. In general, this implies that all public authorities and citizens are subject to the law and can only do what is or is not prohibited by law. The principle of legality is linked to other general principles of law.

The Spanish legal system provides for a series of fundamental principles as primary values that guide and regulate the creation and interpretation of legal norms in each area of law (civil law, criminal law, constitutional law, administrative law, tax law…). It is considered that legal certainty requires that the actions of persons subject to the authorities be subject to the principle of legality. The principle is sometimes considered the “golden rule” of public law and is a necessary condition for affirming that a State is a State governed by the rule of law, since power has its foundation and its limit in legal norms. In close connection with this principle, the institution of the reservation of rights obliges the specific question to be regulated by norms which have the rank of law, in particular those relating to the intervention of public authorities in the field of the rights of the individual. Therefore, these are matters that are prohibited by the rules and regulations issued by the executive. The reservation of rights reflects the liberal doctrine of separation of powers by preserving the rights of the legislative branch. The constitutional principle of legality in tax matters implies that the creation, modification and abolition of taxes, as well as the granting of tax exemptions and other tax advantages, the determination of the chargeable event, taxpayers, teachers and source holders, the corresponding tax rates and the tax base must be carried out by law. In its original approach, the public administration could not act arbitrarily according to the principle of legality, but by implementing the content of the law.

This was due to a strict interpretation of the principle of separation of powers, which had its origins in the French Revolution. The main application of the principle of legality in administrative law is its power to impose sanctions. This implies that the assignment of the public administration to the sanction can only be made by law. In the field of criminal law, one of the most important principles of criminal law is the principle of legality, which is based on the maxim “nullum crimen nulla poena sine lege” (There is no crime or punishment without privilege), from which a number of guarantees contained in criminal legislation are derived. In view of these guarantees, the principle of legality also derives from certain prohibitions, which in turn provide legal certainty to citizens: as I said, this principle is one of the most important principles of criminal law, as it contains certain guarantees and prohibitions that offer all citizens legal certainty vis-à-vis the State. Because they are a limitation of the ius puniendi (sanctioning power) of our legal system. At present, however, it is considered that it is the law that positively determines and determines the administrative act, which is not valid if it does not comply with a normative provision in force. The principle of legality then acts as a prior legal cover for any power: if the administration cooperates with it, its actions are legitimate (doctrine of positive link). [1] /December). “The principle of legality”. Revista Española de Derecho Constitucional (Madrid: Centro de Estudios Políticos y Constitucionals) (39): 9-42. The definition of the principle of legality in general and legality in criminal matters derives from criminal law and in particular from Article 1 of the Criminal Code.

This fundamental principle is summed up by the expression “nullum crimen nulla poena sine lege” and implies that a penalty cannot be imposed on anyone for an act that has not been characterized as a crime in a particular previous State law which considered it as such. This is one of the principles on which administrative law is based, that is, that applicable to public administration. The principle of legality is to guarantee and protect legal certainty. Although it is used throughout the legal system, it is gaining importance in the criminal, administrative and tax fields. The principle of legality contains certain guarantees, for which the Criminal Code itself enshrines its first articles: on the other hand, the principle of criminal legality in the field of criminal law is regulated in various articles of the Criminal Code, in particular article 10; 1.1; 2.1 and 4.2 of the above-mentioned Code. : In tax law, on the basis of the principle of legality, only a legal rule of a legal nature can define each individual element of the tax liability, namely the chargeable event, the entities liable to pay, the system or basis for determining the chargeable event, the time of payment, infringements, sanctions and exemptions and the entity legalized to receive the payment of taxes. The Latin maxim nullum tributum sine legem states that to be considered as such, a tribute must be contained in a law, otherwise it is not a tribute. In addition to the principle of legality, there are other basic principles that govern criminal law, such as: In criminal law, it regulates crimes and penalties, a position initially occupied by Cesare Beccaria.