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Kelsen, hans compendio de teoria general del estado - 1. 1 •,1-}, 0 CEVCIglddsa zco.3Qz:tc)r)•;)"et)A0s-•-sC'0 r;),)• -,$4(7) ct. by Hans Kelsen 22 editions - first published in Download DAISY . published in Cover of: Teoría general del derecho y del estado. Hans Kelsen: aportaciones teóricas de la teoría pura del Derecho Se expone la tesis de la identidad del Derecho y el Estado y se indica como se plantean y.
This doctrine considers personhood as the existence of a number of individuals exercising their powers in pursuit of a common goal and recognized by applicable law in the same manner as if they were a single person.
This situation emerges by linking that statement with a factual situation recognized by the legal regime as a factor of individualization of the entity with free will, without implying that this sole statement can create personhood, given that one requires both recognition by the legal regime and free will of the entity that the regime individualizes. Fiction Theory Friedrich Carl von Savigny 35 theorized that only a natural person is capable of exercising rights and obligations.
This is considered to be the oldest and most prevalent theory in Germany since the mid-nineteenth century and Italy and France since the mid-twentieth century. This exception is facilitated by a legal fiction that recognizes the artificial capacity of a fictitious entity to possess or own goods. Savigny defines the legal entity as an artificially created subject of property 37 and that this entity develops its capacity or legal personhood only through property ownership.
Property is the means to achieve the objectives for which the legal entity was created. In sum, the fiction theory equates personhood with the ability to exercise certain rights. It similarly compares legally incapacitated natural persons with juridical persons, given how both fictional subjects of law and natural persons suffering from capitis deminutio cannot, by themselves, exert their will within a legal relationship and instead require a representative to exercise their rights granted to them by law.
Legal Action Theory In discussing corporate personhood, Ferrara 38 asserts that juridical persons are not things but rather a state of being.
In a sense, legal personhood is like an organic garment with which certain collectives or organizations clothe themselves, a configuration used for the purpose of engaging in commerce.
For this reason, there is no substantial difference between informal associations those unrecognized by law and corporations.
In both cases, the subject matter is the same and the act of recognizing either's legal personhood has no value other than to provide the natural persons involved with the most appropriate type of legal status. This recognition forms the basis for their legal personhood.
The German 40 jurist Serick is credited with pioneering the study of law by systematically analyzing previous court rulings. The doctrine of piercing the corporate veil originated in American law as the disregard theory 41 or the doctrine of corporate disregard.
In so doing, they injure the interests of others and flout the law.
In English law, Gower 45 distinguishes cases in which the corporate veil is pierced into four categories: 1 tax-related cases; 2 companies involving a single owner; 3 the use of corporations for fraudulent purposes; and 4 cases involving subsidiaries and holding companies. In a harsh criticism of corporate personhood, supporters of the contractual theory yexactinve scrutity, especially if the protection provided by its legal personhood is abused.
In Mexican law, the application of the corporate veil theory, abuse of legal personhood, elimination of personhood, and veil lifting to mention just some of the names that this theory is known by imply a lack of such personhood, an essential element of the corporation. Accepting the application of the corporate veil theory necessarily involves denying that corporations possess rights other than those held by the partners who established it.
This conflicts with the principle contained in Article 2 of the Law of Mexican Corporations, according to which legal personhood is recognized for both regular and irregular corporations, with the caveat that this second type is required to hold itself out as a corporation to third parties. Requirements for Legal Personhood The requirements that help create or establish legal personhood are: First, the involvement heritage theory, the apparent subject theory, the atomic state theory, and the fiction theory regard legal personhood as something natural to man, which is why these theories generally use the terms person and personhood synonymously, even when they are different.
They similarly amalgamate personhood with free will or capacity. That is why these theories claim that only natural persons have true personhood, since only individuals have free will. In this way, collective entities are a legal fiction. Unlike these theories, the legal action theory recognizes the legal entity, distinguishing between the person and personhood.
In order to identify the subject of law, three requirements must be met: a The existence of a subject of law, b A factual situation that individualizes it in terms of the ownership of rights and fulfillment of obligations, and c The recognition of that individualization by existing law.
In sum, legal personhood arises when a legal construct becomes a reality. That legal construct pertains to a particular factual situation in which the subject of law or an undetermined person finds itself individualized as the holder of certain rights and certain obligations in a legal relationship.
Fondo Editorial de la Universidad de Lima.
Aguilar S. Los fines. Los valores. La justicia. Clases de justicia.
Alvarez Ledesma Mario. Editorial Trotta.
Lima Tras la Justicia. Editorial Ariel S.
COMPENDIO DE TEORIA GENERAL DEL ESTADO HANS KELSEN PDF
El sentido del Derecho. Editorial Ariel. Las razones del Derecho. Centro de Estudios Constitucionales, Madrid, Distribuciones Fontamara. Editorial Juris. Temis, Buenos Aires, This wil specify some feature or features possession of which by suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. DWORKIN,  This wil specify some feature or features possession of which by suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.
HART,  In a developed legal system the rules of recognition are of course more complex; instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules.
This may be the fact of their having been enacted by a spcific body, or their long customary practice, or their relation to judicial decision. HART, Some were created by a legistature, in te form of statutory enactments.
Others were created by judges who formulated them to decide particular cases, and thus established them as precedents for the future. But this teste of pedigree wil not work for the Riggs and Henningsen principles. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim.
If the word in wich we live were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility.
We could make rules, the application of which to parcular cases never called for a further choice. Everything could be known, and for everything, since it could be known, something could be done and specified in advance by rule.
HART,  The third supplement to the simple regime of primary rules, intended to remedy the inefficiency of this diffused social pressure, consists of secondary rules empowering individuals to make authoritative determinations of the question whether, on a particular occasion, a primay rule has been broken. Of course, neither did he intend them to have only discretion in the weak sense either.
If I say to you, File these memos. Use your discretion, am I only saying, I nominate you to do it? I believe that Hart would grant a moderate sense of discretion to judges: that judges cannot decide a hard case just any way hence they do not have strong discretion , but within the parameters of the rules principles relevant to the case there is a legally unconstrained choise.
HART,  So whether the laws are morally good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law which are of supreme importance to human beings and independently of moral merits of the laws. Ir is therefore untrue that statements of legal rights and duties can only make sense in the real world if there is some moral ground for asserting their existence.John Austin jurista.
Os Militares e a Constituinte. I believe that Hart would grant a moderate sense of discretion to judges: that judges cannot decide a hard case just any way hence they do not have strong discretion , but within the parameters of the rules principles relevant to the case there is a legally unconstrained choise.
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Based on these provisions, it is clear that the constitutional text refers to those who possess individual rights, including both juridical persons and natural persons. Insistia o general: "que lhe dessem algum documento, 'qualquer coisa' Personhood in Jurisprudence Based on criteria set forth by the Mexican federal courts, there is no clear concept of what constitutes legal personhood.
In so doing, they injure the interests of others and flout the law.