Codice civile

from Wikipedia, the free encyclopedia

The Codice civile (Civil Code) is a central codification of the legal order of the Italian Republic . It contains most of the legal norms that regulate civil law, i.e. the legal relationships between formally equal persons ( ius civile, the right of equal citizens of Rome - civilis, adjective to cives - Latin for "citizens", hence " civil law " or "Civil Law"). In this respect, the code is comparable with the German Civil Code (BGB), the Austrian General Civil Code (ABGB), the Swiss Civil Code (ZGB) and the French Civil Code . Together with numerous subsidiary laws, it regulates the private law (diritto privato) of the legal system of Italy.

As in other legal systems, when changes are made to private law, it is a matter of dispute whether these should be implemented directly as changes to the original text, or whether separate subsidiary laws should be passed. Thus, many changes, e.g. B. in the area of ​​family law, directly incorporated; others, such as new legal institutions of contract law and consumer law (so-called "Codice del consumo"), were regulated in other sources.

The civil code came into force before the founding of the Italian Republic and thus also before the currently valid constitution and was a central legislative project of the fascist government at the time, the ideology of which was reflected in numerous legal provisions that were repealed after the fall of Mussolini. After the code of law was adjusted, it is still in force today, although, like all other civil law codifications in Europe, it had to be revised many times due to the rapid social and economic changes in the post-war period, which continue to this day.

Legal basis

In Italy, responsibility for legislation in the area of ​​civil law lies with the state (Stato), i.e. the central government level, as is the case in Germany, Austria and Switzerland (each "federal level"). in the original version of the 1948 Constitution, jurisdiction to legislate in this area was simply not given to the regions. In the version valid since 2001, the areas of responsibility of the state are finally listed in the fifth title of the constitution. Art. 117 para. 2, which lists the areas of exclusive jurisdiction, names "criminal and civil legislation" under letter l). Changes in civil law are therefore the sole responsibility of the Chamber of Deputies and the Senate of the Republic .

The law was formally enacted by the Royal Decree of March 16, 1942, No. 262 (Regio decreto 16 marzo 1942, n. 262) and thus dates from the time when Italy was a monarchy. The "Royal Decree" is comparable to today's legal decree and was therefore not enacted by Parliament, but directly by the government. Like all unexplicitly repealed legislation prior to the promulgation of the Republican Constitution, it is still in force.

prehistory

The Code civil is a direct source of inspiration for the Italian civil law system . On the one hand, as one of the first complete civil law codifications, it had a decisive influence on all legal systems of the so-called "civil law" ; on the other hand, it is a codification of Romanic law (not to be confused with " Roman law ") and could therefore serve as an excellent model for a uniform Italian civil law. The nucleus of the later Kingdom of Italy , the Kingdom of Piedmont-Sardinia , already had a civil law codification from 1837, which probably essentially consisted of the civil code left behind by the French conquerors and also retained its tripartite division, which was used for the early codifications (including the ABGB ) was characteristic and influenced by the institutional system. This is comparable to areas of the western part of today's Germany, which in the Napoleonic era were partly attached to the French Empire as departments and subsequently also after 1814 ( Battle of Waterloo and fall of the First Empire) the civil code as "Rhenish law "kept. After the then reigning king, Karl Albert , who put the code into effect by edict of June 20, 1837, it is also called "Codice Albertino". Less common is the designation as "Codice sabaudo", whereby "sabaudo" is the adjective for the House of Savoy , from which all the regents of Piedmont-Sardinia and the later Kingdom of Italy come.

With the unification of Italy , or more precisely the expansion of the Piedmontese rule and legal system to the adjoining areas of the Apennine Peninsula , which by and large took place in 1861, the scope of the Codice Albertino was automatically extended. Since the call for an "Italian" codification was loud, almost four years after the founding (or renaming) of the kingdom, a revised Codice civile, which is called "Codice civile del 1865" to differentiate it, was made. The period between the unification of the state and the enactment of an all-Italian civil law was therefore much shorter than in Germany, where a uniform codification was only enacted after almost thirty years. This is also due to the fact that the kingdom was conceived from the beginning as a unitary state in which, apart from the state level, no regional authority had the competence to issue legal provisions. In the German Reich , the Reich constitution had to be changed first, which in its original version only assigned responsibility for the law of obligations , which had to be standardized for efficient domestic trade, to the Reich.

Italy also had a model with the Civil Code on which it could build. The German legal doctrine, however, wanted to develop a new civil law codification for the unified Germany, which should follow the Pandektenwissenschaft , although there were numerous German legal predecessors (including the ABGB) .

After the German War of 1866, in which Italy caught up due to military incapacity, but as an ally of the victorious Prussia received the territories of today's regions of Veneto (Veneto) and Friuli-Venezia Giulia as the beginning of the war, the scope of the Italian was discovered Civil law another noticeable expansion. In 1871 the same thing happened with the area of ​​the now dissolved Papal States .

After the First World War, the Italian legal system experienced its expansion, which has essentially continued until today. After the again defeated Austria-Hungary had to cede South Tyrol , Trentino , Gorizia and some other areas, after a while Italian civil law came into force there as well. It should be noted that in the case of South Tyrol, the German-speaking population resident there was deprived of their German-speaking law. Some legal institutions of Austrian law, such as B. the superior land register system (sistema tavolario) and related differently regulated legal effects (such as the transfer of ownership when selling real estate) have survived to this day.

At the beginning of the 20th century it became clear that civil law needed reform; This is certainly also due to the opinion of legal scholars who were familiar with the ABGB in provinces that were formerly part of Austria-Hungary, that this was technically superior to the Codice Civile. In the course of the thirties, the first parts were drawn up, which resulted in the final approval of the text in 1942. Two influences of different nature are remarkable. On the one hand, there is the ideology of the fascist regime, which envisaged a kind of " corporate state " (stato corporativo) and for this purpose envisaged the "fascistization" (fascistizzazione) of civil law, e.g. B. by "corporate regulations" (norme corporative) as an independent legal source below the law. On the other hand, Italian legal doctrine, albeit under the nationalist influence of the fascist party , could not escape the extraordinary influence that the civil code of the German Reich, which came into force in 1900 , the highest form of expression of the legal sciences at that time, on the legal systems of continental Europe and the Turkey as well as even Japan's.

After the fall of the fascist government in the course of the Allied invasion of southern Italy in 1943, a comprehensive legal adjustment was made. By the legislative decree of the governor of November 23, 1944, No. 369 (decreto legislativo luogotenenziale November 23, 1944, n. 369), all class and fascist provisions were abolished. So no new codification had to be worked out; the fascist contamination of the code had not had such a major impact on the overall concept that its absence would have torn gaps in the law. In addition, certain sections in which corporate regulations were provided could be reinterpreted in such a way that they were interpreted in the sense of a liberal social partnership that satisfies the rule of law.

development

Like other civil law codifications, the Codice Civile has deviated from the idea that a mere formal legal equality does not meet modern welfare state requirements. It is true that complete formal legal equality among all civil law actors has not really been implemented in any body of law. However, it was the idea of ​​modern jurisprudence to replace the medieval legal system, which was shaped by class privileges (nobility, guilds, servitude, etc.) with one in which all people meet as the same and without special privileges. The highlight is the treaty, in which both sides can ideally regulate their pact in equal parts and with equal rights. In the course of the upheavals caused by industrialization, it became apparent that contractual partners such as tenants, consumers and workers should be protected by special provisions due to their disadvantaged position in economic life. These movements had started in the kingdom around the turn of the century and culminated after World War II. Thus, a kind of new imbalance has been created between the contracting parties who conclude certain contracts; this clearly under completely different conditions than in feudal legal systems,

In the course of social liberalization in the post-war period, Italy also called for a reform, particularly of family law . Furthermore, certain provisions of the rather conservative code of law were unequivocally in contradiction to the liberal, progressive and sometimes almost socialist echoes of the 1948 constitution, such as B. the superiority of the spouse in marriage, whereas the constitution speaks of the "moral and legal equality of the spouses". The Constitutional Court had long called for reform, but had not declared all of the provisions unconstitutional; In the heartland of the Roman Catholic Church , such a change to a highly sensitive issue by the judiciary, bypassing the legislature, would hardly have had the desired effect. Family law was brought up to date through various amendment laws in the 1970s, B. by the law of May 19, 1975, No. 151 (family law reform or "riforma del diritto di famiglia"), which has fundamentally reshaped the legal institution of marriage.

The law of obligations also experienced some extensions, although these were implemented in subsidiary laws, as far as none of the existing legal institutions had to be changed. The implementation of consumer law in the nineties should initially be done by incorporating it into the third book (law of obligations or "obbligazioni"); Since the scope of the relevant regulations grew steadily, also due to the requirements of the European Union , it was decided in favor of the version of a consumer code (Codice del consumo), which has now also grown to a proud scope.

Structure and scope

Like the BGB and unlike the original Civil Code and the still existing ABGB, the Codice civile is structured according to the system of Pandect Science, although a general part in the sense of the BGB is missing. The main books are broken down into books ( libri ), titles ( titoli ), sections ( sezioni ) and finally articles ( articoli ).

  • Provisions on the law in general (disposizioni sulla legge in generale): This section, which precedes the main ledgers and consists of sixteen articles, contains provisions on the relationship between legal sources and the interpretation of the law. Before private international law was regulated in its own law, it was to be found under these introductory provisions.
  • 1. Book (Art. 1 - 455) - Personal and Family Law ( Delle persone e della famiglia ): Here you will find provisions on natural and legal persons, on business and legal capacity, on certain cases of incapacity and on the relationship between the Spouses to each other and to the children
  • Book 2 (Art. 456 - 831) - Inheritance law ( Delle successioni ): here you will find the right of inheritance ( successione mortis causa) as well as the provisions on free gifts among the living ( liberalitá inter vivos) or gifts ( donazioni )
  • Book 3 (Art. 832 - 1172) - Property ( Della proprietá ): Property law contains provisions on goods ( beni ), property and limited rights in rem (diritti reali minori), on the various types of possession (possesso) and for property and property protection ( tutela )
  • Book 4 (Art. 1173 - 2059) - Law of Obligations ( Delle obbligazioni ): This most extensive part contains introductory provisions on obligations ( obbligazioni ), general provisions on the central and most important legal transaction, the contract ( contratto ) and special provisions on a large number of typical individual contracts ( singoli contratti tipici ). At the end there is the tort law (Del fatto individuellecito)
  • Book 5 (Art. 2060 - 2642) - Labor Law (Del lavoro): In contrast to other codifications, the Codice civile contains a significant part of special private law, namely labor and company law, which is regulated separately in other legal systems, e.g. in German Commercial Code or in the Austrian Company Code . However, this part does not contain all the relevant provisions by far, which is why it should rather be viewed as the core.
  • 6th book (Art. 2643 - 2969) - Legal protection (Della tutela dei diritti): This part is relatively inconsistent and includes a large number of different legal institutions, the common purpose of which is to protect or secure the subjective rights postulated in the previous books, but cannot be assigned to an area, e.g. B. the guarantee rights and the legal institutions, which concern the publication of legal transactions subject to registration.
  • Introductory and transitional provisions (disposizioni di attuazione e transitorie), with a total of 256 articles.

interpretation

The Supreme Court of Cassation (Corte suprema di cassazione), which, as the highest instance of ordinary jurisdiction, can be compared with the German Federal Court of Justice for providing the interpretation to be observed, has a major influence on the interpretation of the Codice civile . Especially in the area of tort law , which in practice requires a very extensive interpretation, but is regulated very quickly in the code of law, judges' law has filled the sparse provisions with a multitude of contents. In the law of obligations he has made logical additions, e.g. B. the figure of the active instruction ( delegazione attiva ), which corresponds only approximately to the instruction in German law (allocation of a new creditor, but no resignation of the old one) which is not provided for in the law, but as a counter figure to the so-called passive instruction ( delegazione passiva ) was developed.

Web links