SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Pedro Echeguren, Lopez-Ibor DPM
1. General 1.1 General Characteristics of the Legal System The Spanish legal system follows so-called civil or codified law, although in certain areas it has increasingly been accepting and has begun inte- grating aspects of the common law system. The sources of the law consist of statutory law and, to a lesser extent, custom and general prin- ciples of law. Case law is not generally regarded as a source of Spanish law. Nonetheless, judg- ments issued by the Supreme Court comple- ment the other sources of Spanish law, assist- ing with the interpretation and application of the law. Precedents from the Constitutional Court and the Court of Justice of the European Union are also relevant for legal interpretations. Spanish civil legal proceedings are conducted both through written submissions and oral argu- ments. 1.2 Court System The principle of jurisdictional unity is the basis of the organisation and operation of the Spanish courts. The Spanish Constitution also protects judicial independence and the power separation between the judiciary, the government and the legislative. The exercise of judicial authority in any kind of action, both in passing judgments and having judgments executed, lies exclusively within the competence of the courts and tribu- nals established by law, in accordance with the rules of jurisdiction and procedure within the law. Spain has five separate jurisdictional orders, which are classified by subject: civil, criminal, administrative, labour, and military. Each juris- diction has its own substantive and procedural rules.
The civil courts are organised in a pyramid struc- ture, including: • Peace Courts, for debts amounting to no more than EUR90, and whose functions are extremely limited; • first instance courts ( Juzgados de Primera Instancia ) and commercial courts ( Juzgados de lo Mercantil ) at the lowest level; • provincial courts ( Audiencias Provinciales ) and superior courts ( Tribunales Superiores de Justicia ), which are both above first instance courts; and • the Supreme Court ( Tribunal Supremo ), which is located at the highest level of the Spanish court system. Spanish law provides for the possibility of spe- cialisation of some courts in certain matters (for instance, first instance courts can specialise in family matters, insolvency proceedings or bank- ing products). As of the writing of this article, a bill is currently being debated in parliament which, if approved, would implement a major transformation in this judicial structure, by way of suppressing tradi- tional unipersonal courts and replacing them with collegiate tribunals divided into sections. The Constitutional Court is not part of the judi- ciary and therefore is not above the Supreme Court; it serves as an interpreter and guarantor of the correct application of the Spanish Con- stitution. From the start of the proceedings until the trial usually takes between six months and one year in the case of oral proceedings. In ordinary pro- ceedings, a preliminary hearing is held first, so the period can be more than a year from the start of the proceedings until the trial is scheduled.
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