Lesnota's - Basisbegrippen van recht-6.pdf

## Introduction to Law Law is fundamentally understood as a system of behavioral rules, supplemented by institutional regulations, established and enforced by societal authority to achieve an ordered society. This order is characterized by legal certainty, justice, and effectiveness. However, the approach to law and its objectives can vary across different legal systems and cultures. ### Chapter 1: Law as a Set of Behavioral Rules #### Definitions of Law While a universally accepted definition of law does not exist due to variations across jurisdictions and historical periods, there is a general consensus on core aspects. Law is primarily seen as a comprehensive set of behavioral rules and enforcement mechanisms designed to regulate societal interactions and maintain order. [ ] [2](#page=2). #### Objective Law vs. Subjective Rights * **Objective law** refers to the totality of legal norms and rules applicable within a particular society at a given time. [ ] [2](#page=2). * **Subjective rights** are the entitlements and claims that legal subjects (natural persons and legal persons) possess. These are legally recognized assertions concerning other persons (in the context of contract law) or property (in the context of property law), aimed at achieving specific goals within the legal system. [ ] [2](#page=2). #### Public Law vs. Private Law * **Private Law:** Governs relationships between individuals considered equals, regulating interactions between citizens, such as those in contract law and inheritance law. It is often characterized as a horizontal relationship. [ ] [3](#page=3). * **Public Law:** Governs relationships between citizens and the state, or between state entities. Examples include criminal law, tax law, social security law, and administrative law, representing a vertical relationship. [ ] [3](#page=3). There is a noted trend of blurring distinctions between public and private law. For instance, aspects of contract law are increasingly influenced by international treaties, and traditionally supplementary private law rules are gaining a mandatory character. Furthermore, regulatory frameworks operate at multiple levels (international, national, regional, municipal), and public authorities increasingly engage in private law transactions. [ ] [3](#page=3). #### Sources of Belgian Private Law * **Statutory Law:** The primary source, indicated by article citations (e.g., `art. 1.1 BW`). The Belgian Civil Code (BW) is the core legislation, with the "Old Civil Code" (largely based on Napoleonic law) still largely in effect alongside the recently codified books. [ ] [2](#page=2). * **Special Laws:** Legislation not codified within the Civil Code or Old Civil Code exists alongside it, covering areas such as notarial regulations, nationality law (BWN), market practices and consumer protection (WER), youth protection law (community competencies), and environmental law (regional competencies). [ -3 [2](#page=2). * **Custom:** A source of law derived from consistent practice, supported by a general belief in its binding nature. Not all customs are legally recognized; they must stem from established usage and have binding character. [ ] [3](#page=3). * **General Principles of Law:** Recognized by the Court of Cassation, these are fundamental legal tenets, some of which are codified. Examples include the prohibition of forced execution on a person (affecting integrity) and the prohibition of unjust enrichment and abuse of law. [ ] [3](#page=3). #### Legal Facts, Legal Acts, and Legal Consequences * **Legal Personality:** Refers to the status of a person (natural or legal) as a holder of rights and obligations. [ ] [4](#page=4). * **Legal Fact:** An event that creates legal consequences. For example, birth grants rights to a mother and child, including inheritance rights. Driving through a red light is a legal act, not a legal fact. [ ] [4](#page=4). * **Legal Act:** A declaration of will by a legal subject intended to produce specific legal consequences. Examples include recognizing a child, getting married, or purchasing an item. [ ] [4](#page=4). #### The State of a Person The "state of a person" defines their legal position within society and the family, distinguishing them from others. It operates on multiple levels: [ ] [4](#page=4). * **Societal Status:** Determined by factors like nationality, which can affect rights such as voting. [ ] [4](#page=4). * **Family Status:** Relates to one's position within familial relationships, including cohabitation and marriage, which can change through legal acts. [ ] [4](#page=4). * **Individual Status:** Encompasses physical aspects (like age), psychological elements (e.g., mental capacity), and civil identifying elements (name, domicile). Changes at one level can affect others. [ ] [4](#page=4). The acquisition of elements of a person's state can result from legal facts (birth), material legal acts (child recognition), judicial decisions (divorce), or laws. [ ] [4](#page=4). **Tip:** Civil status refers to the administrative record-keeping of changes in a person's legal state, distinct from civil status itself. [ ] [4](#page=4). #### Capacity Capacity is categorized into: * **Factual Capacity:** The actual ability to perform a specific act. For instance, someone without arms may lack the factual capacity to drive a car without modifications. [ ] [5](#page=5). * **Legal Capacity (Capacity for Enjoyment):** The entitlement to be a holder of rights and obligations, to enjoy them. [ ] [5](#page=5). * **Legal Capacity to Act (Capacity to Transact):** The power to exercise one's rights and obligations independently. Minors generally lack this capacity. [ ] [5](#page=5). ### Chapter 2: Central Elements in the Concept of Law Law is characterized as a set of behavioral rules, an institutional and conceptual framework, imposed by society with the goal of societal ordering. [ ] [5](#page=5). #### Behavioral Rules and Institutional Framework * **Behavioral Rules:** These can be commands, prohibitions, or permissions, varying in intensity and applicability. They can be mandatory (non-derogable) or supplementary (allowing for alternative agreements). [ ] [5](#page=5). * **Institutional Framework:** This includes the legislative, executive, and judicial branches, responsible for formulating, applying, and enforcing legal rules. [ ] [5](#page=5). #### Imposition by Society Legal rules are imposed by society, primarily through legislative bodies elected by the populace. [ ] [5](#page=5). #### The Goal of Legal Rules: Qualitative Societal Ordering The quality of societal ordering achieved by legal rules depends on: 1. **Legal Certainty:** Requires predictability (the principle of *Nemo censetur ignorare legem* – no one is deemed to be ignorant of the law), stability of laws, generality, and consistency. The rapid introduction of new laws and constant changes pose challenges to legal certainty. [ ] [6](#page=6). 2. **Justice:** An evolving concept, but with a core set of immutable values, such as respecting human life. [ ] [6](#page=6). 3. **Effectiveness:** The means employed should align with the objectives. The intended goals of legislation are typically outlined in explanatory memorandums, but their achievement is not always evaluated. [ ] [6](#page=6). #### Enforcement of Legal Rules Enforcement is carried out by or under the authority of the state, involving the executive and judicial branches. Enforcement initiatives differ: in private law, it is typically initiated by the individual; in public law, it is state-driven. [ ] [6](#page=6). #### Synthesis of Law Continental law can be synthesized as: a body of behavioral rules and associated institutional provisions, enacted and enforced by or under societal authority, aiming for a legally certain, just, and effective ordering of society. [ ] [6](#page=6). ### Chapter 3: Legal Subjects #### Natural Persons * **Living and Viable Persons:** Every living and viable born human is a legal subject from birth. A stillborn child, born without signs of life, is not a legal subject but may have documents from the civil registry created with legal consequences for the family. [ ] [7](#page=7). * **Conceived Persons:** A conceived child (embryo) enjoys legal protection and may acquire rights, particularly inheritance rights, even if the father dies during the pregnancy. The legal presumption for the time of conception is between the 300th and 180th day before birth, which is a *juris tantum* presumption (rebuttable). [ ] [7](#page=7). * **End of Legal Personality:** Legal personality ceases upon death, which is a factual matter determined by a physician. However, certain aspects of legal personality, like copyrights, may persist after death. [ ] [8](#page=8). #### Legal Persons Legal persons are abstract legal constructs that, either as a group of legal subjects or as a separate patrimony, can hold rights and obligations. They are created to organize and structure cooperation, providing for the separation of assets from personal assets. [ ] [8](#page=8). * **Legal Persons vs. Unincorporated Partnerships:** Unincorporated partnerships (e.g., *maatschap*, factual associations) lack separate legal personality and a distinct patrimony. Legal persons, however, acquire their own legal personality, allowing them to perform legal acts and possess their own patrimony, separate from individual members. [ ] [8](#page=8). * **Types of Legal Persons:** * **Public Law Legal Persons:** Established by the government for public service delivery (e.g., the Belgian State, communities, Bpost, NMBS). [ ] [9](#page=9). * **Private Law Legal Persons:** Created through private initiative for purposes other than state authority, including: * **Associations:** Non-profit legal persons (e.g., VZW - *Vereniging zonder winstoogmerk*). [ ] [9](#page=9). * **Foundations:** Separate patrimonies dedicated to non-profit objectives (e.g., Private Foundations, Public Benefit Foundations). [ ] [9](#page=9). * **Companies:** Legal persons aimed at profit generation and distribution to participants (e.g., VOF - *Vennootschap onder firma*, BV - *Besloten vennootschap*, NV - *Naamloze vennootschap*, CV - *Coöperatieve vennootschap*). [ -10 [9](#page=9). * **Liability of Legal Persons:** Can be unlimited (creditors can pursue the legal person's assets and members' assets) or limited (creditors can only pursue the legal person's assets), with limited liability typically subject to stricter formation and asset maintenance rules. [ ] [10](#page=10). * **Legal Personality Principle:** Legal personality can only be granted in cases provided for by law; it cannot be self-created to prevent misuse. [ ] [10](#page=10). * **Origin and End of Legal Personality:** Legal personality typically arises upon registration of an extract of the founding act and ends with voluntary or judicial dissolution followed by liquidation. [ -11 [10](#page=10). * **Enforceability to Third Parties:** The existence of a legal person becomes enforceable against third parties after publication of an extract of its founding act in the Belgian Official Gazette. [ ] [11](#page=11). ### Chapter 4: Legal Capacity #### General Concepts of Capacity * **Factual Capacity:** The actual ability to perform a specific act. [ ] [11](#page=11). * **Legal Capacity (Capacity for Enjoyment):** The competence to be a holder of rights and obligations, determined by one's state of person. [ ] [11](#page=11). * **Legal Capacity to Act:** The competence to exercise one's rights and obligations independently. [ ] [11](#page=11). #### Capacity of Natural Persons * **Legal Capacity:** Generally, all Belgian nationals possess full legal capacity from birth. Exceptions can apply to non-Belgians (e.g., limitations on certain civil rights or public offices) and individuals with severe criminal convictions (who may be divested of certain political and civil rights). [ -12 [11](#page=11). * **Specific Legal Incapacities:** These can be imposed by law (e.g., impediments to marriage) or by a court (e.g., prohibition from practicing a profession, forfeiture of parental authority). Violations of rules related to legal capacity can lead to absolute or relative nullity. [ ] [12](#page=12). * **Capacity to Act:** The general principle is that all persons are capable of acting. Exceptions lead to incapacity to act. [ ] [12](#page=12). * **General Incapacity to Act:** Persons are entirely unable to act independently in legal transactions. This is the rule for unemancipated minors and, in exceptional cases, for protected adults declared generally incapacitated by a judge. [ ] [13](#page=13). * **Partial Incapacity to Act:** Persons are incapacitated for specific legal acts as defined by law or by a court. This applies to emancipated minors and protected adults. [ ] [13](#page=13). * **Protected Adults:** Can be under judicial guardianship (*bewind*), where a legal representative acts on their behalf, or receive assistance. [ ] [13](#page=13). * **Purpose of Incapacities:** These measures aim to protect individuals with underdeveloped will or those unable to fully comprehend the consequences of their actions. [ ] [14](#page=14). #### Functions of Exceptions to Capacity to Act * **Representation or Assistance:** Incapacitated individuals can participate in legal life through representation (where a representative acts for them) or assistance (where the representative acts alongside them with their consent). For minors, representation is the rule; for adults, assistance is generally preferred. [ ] [15](#page=15). * **Annulment of Legal Acts:** Legal acts performed by incapacitated individuals without proper authorization can be annulled. [ ] [15](#page=15). #### Timing of Incapacity * **Minors:** Incapacity begins at birth. [ ] [15](#page=15). * **Adults:** Incapacity arises upon judicial declaration. [ ] [16](#page=16). #### Sanctioning Acts of Incapacitated Persons * **Absolute Nullity:** Applies to violations of public order rules or legal incapacities, allowing any interested party to invoke it, including the judge. [ ] [16](#page=16). * **Relative Nullity:** Applies to violations of purely mandatory rules or incapacities to act, which can only be invoked by the protected party. [ ] [16](#page=16). * **Nullity by Law vs. Nullity Due to Damage:** Nullity by law applies automatically upon violation of specific rules (e.g., concerning capacity), whereas nullity due to damage requires proof that the act was detrimental to the incapacitated person. [ ] [17](#page=17). * For minors, nullity due to damage is generally required, unless the act was not genuinely intended to be beneficial or was performed by very young minors (under 7 years old). [ -18 [17](#page=17). * For protected adults, nullity by law generally applies to acts requiring judicial authorization, while acts of management typically require proof of damage. [ ] [18](#page=18). ### Chapter 5: Legal Acts #### Introduction Legal acts are human declarations of will to which the law attaches legal consequences. These are distinct from material acts and legal facts. [ ] [21](#page=21). #### Validity of Legal Acts For a legal act to be valid, several conditions must be met: 1. **Capacity to Act:** The parties must have the legal capacity to enter into the act. [ ] [21](#page=21). 2. **Consent:** The parties' actual will must correspond to their declared will. This is subject to certain defects: * **Mistake (*Dwaling*):** A misrepresentation of an essential element. To be a ground for nullity, it must relate to an essential point and be excusable. [ -23 [22](#page=22). * **Fraud (*Bedrog*):** Intentional misrepresentation through artifice. [ ] [23](#page=23). * **Duress (*Geweld*):** Unlawful constraint, either physical or moral. [ ] [23](#page=23). * **Abuse of Circumstances (*Misbruik van omstandigheden*):** Exploiting a person's vulnerability or weak position to gain a manifest advantage. [ ] [23](#page=23). 3. **Object:** The subject matter of the act must be lawful and determinable. [ ] [23](#page=23). 4. **Cause:** The underlying motivation for the act must be lawful. [ -24 [23](#page=23). 5. **Conformity with Law:** The act must not contravene mandatory legal provisions or public order rules. [ ] [24](#page=24). #### Nullity of Legal Acts A legal act that fails to meet validity requirements is subject to nullification. * **Effects of Nullification:** Nullification generally operates retroactively (*ex tunc*), meaning the act is considered as if it never existed. This typically entails a mutual restitution of what was exchanged. However, for incapacitated persons, restitution is limited to the extent of any benefit received. [ ] [25](#page=25). * **Absolute vs. Relative Nullity:** Absolute nullity applies to violations of public order or legal incapacities, while relative nullity applies to violations of purely mandatory rules or incapacities to act. [ ] [26](#page=26). #### Enforceability of Legal Acts The enforceability of legal acts to third parties is governed by principles of publicity, registration, and notification, ensuring transparency and legal certainty. [ -28 [26](#page=26). ### Chapter 6: Liability #### Types of Liability * **Criminal vs. Civil Liability:** Criminal liability arises from violating norms with penal sanctions, regardless of intent or resulting damage. Civil liability concerns the obligation to compensate for damage caused to another. [ ] [42](#page=42). * **Contractual vs. Extracontractual Liability:** Contractual liability arises from breach of contract. Extracontractual liability arises from damage caused by actions outside of a contractual relationship, such as torts. [ -43 [42](#page=42). * **Concurrence of Actions:** A single act can constitute both a contractual breach and a violation of a general behavioral norm. Historically, a prohibition on concurrence (*samenloopverbod*) existed, limiting the use of extracontractual liability between contract parties unless the fault was entirely unrelated to the contract's execution. However, Book 6 of the Civil Code has largely abolished this prohibition, generally allowing for a choice between contractual and extracontractual claims, unless the contract or law specifies otherwise. [ -44 [43](#page=43). #### Grounds for Extracontractual Liability The new Book 6 of the Civil Code organizes liability based on: 1. **Liability for Own Act:** Requires proof of damage, fault, and a causal link between the fault and the damage. * **Fault:** Defined as any socially unacceptable behavior, including the violation of legal provisions or the breach of a duty of care (acting as a prudent person or *bonus pater familias*). [ ] [47](#page=47). * **Attribution (Responsibility):** The fault must be attributable to the perpetrator. [ ] [48](#page=48). * **Exclusion of Liability:** Grounds like force majeure, necessity, or consent of the victim can exclude liability. [ ] [48](#page=48). * **Liability of Minors and Mentally Disabled Persons:** Minors under 12 are generally not personally liable, though their parents may be. Minors aged 12 and above can be held liable, subject to a fairness regime considering their economic situation and insurance. Mentally disabled persons are subject to a faultless liability regime, where damages can be reduced or waived based on fairness and insurance. [ -50 [49](#page=49). 2. **Liability for Another's Act:** Individuals can be held liable for the acts of others under their authority or supervision. This includes liability of parents for their minor children, employers for their employees, and institutions for those under their care. The nature of this liability (fault-based or faultless) depends on the age of the minor and the specific legal regime. [ -52 [50](#page=50). 3. **Liability for Things and Animals:** Liability arises for damage caused by defective things or by animals. The keeper or owner is generally strictly liable, with limited grounds for escape from liability (e.g., proof that the damage was not caused by the defect or the animal, or victim's fault). [ -54 [53](#page=53). #### Causation A causal link between the fault and the damage is essential for establishing liability. The **equivalence theory** (*equivalentieleer*) holds that a fault is a cause of damage if the damage would not have occurred without it. This theory can be corrected by legal causality principles based on fairness, excluding liability when the connection between fault and damage is clearly unreasonable. [ -58 [57](#page=57). #### Plurality of Liability When multiple parties are liable, or when the victim's fault contributes to the damage, liability is apportioned. * **Multiple Perpetrators:** If multiple individuals commit the same fault or different faults that contribute to the damage, they are generally held jointly and severally liable (*in solidum*), meaning the victim can claim the full compensation from any one of them. [ ] [59](#page=59). * **Victim's Fault:** If the victim's fault contributed to the damage, their right to compensation may be reduced. If the victim intentionally caused the damage, they may lose the right to compensation entirely. [ ] [60](#page=60). #### Damage Damage refers to the economic (patrimonial) and non-economic (moral) consequences of an infringement on a legally protected personal interest. [ ] [62](#page=62). * **Patrimonial Damage:** Includes losses and costs incurred. [ ] [63](#page=63). * **Extrapatrimonial Damage:** Encompasses pain, suffering, and psychological distress. [ ] [63](#page=63). * **Damage by Recoil (*Schade bij terugslag*):** Damage suffered by a person due to an initial harm to another person with whom they have a close relationship. [ ] [63](#page=63). #### Consequences of Liability The liable party is obligated to provide integral compensation, aiming to restore the victim to the position they would have been in had the harmful event not occurred. Punitive damages are generally excluded, though additional compensation may be awarded if the liable party acted intentionally and profited from the infringement. [ ] [64](#page=64). ### Chapter 7: Abuse of Law #### Limits on the Exercise of Subjective Rights The exercise of subjective rights is subject to legal limitations: * **Legal Restrictions:** Laws may impose specific limits on how rights are exercised. [ ] [65](#page=65). * **General Duty of Care:** Exercising a right should not violate the general duty of care, potentially leading to extracontractual liability. [ ] [65](#page=65). * **Abuse of Law:** This occurs when a right is exercised in a manner that is legally permissible but demonstrably detrimental to others and lacks a reasonable benefit for the right-holder, or when the exercise clearly exceeds the normal boundaries of that right as exercised by a prudent and reasonable person. [ -66 [65](#page=65). #### Sanctions for Abuse of Law The sanction for abuse of law is typically the moderation of the exercise of the right to its normal scope, without prejudice to compensation for any damage caused. [ ] [66](#page=66). ### Chapter 8: Subjective Rights #### Concepts and Types of Subjective Rights Subjective rights are legally recognized claims and powers that a legal subject can exercise over specific things (property law) or against specific persons (contract law) to achieve their objectives. Disputes concerning subjective rights are typically resolved by ordinary courts. [ ] [67](#page=67). Subjective rights can be classified based on the object of the right: * **Political and Civil Rights:** Political rights pertain to the relationship between the state and the citizen (e.g., voting), while civil rights govern relationships between citizens. [ ] [67](#page=67). * **Patrimonial and Extrapatrimonial Rights:** Patrimonial rights are economically valuable and form part of a person's assets, while extrapatrimonial rights relate to non-economically valuable aspects of a person's life (e.g., personal integrity, family relationships) and are generally inalienable. [ -68 [67](#page=67). #### Patrimonial Rights These rights relate to assets and form part of a person's patrimony. They are either: * **Real Rights (*Zakelijke rechten*):** Grant immediate power over a specific good or set of goods, independently of another person. These are limited to those created by law (*numerus clausus* principle). [ -69 [68](#page=68). * **Right of Ownership:** The most comprehensive real right, allowing for use, enjoyment, management, and disposition, subject to legal and third-party limitations. [ ] [69](#page=69). * **Co-ownership:** Where multiple persons hold ownership rights over the same good. [ ] [70](#page=70). * **Usufruct:** The temporary right to use and enjoy another's property, with the obligation to return it in its original condition. [ ] [71](#page=71). * **Easements (*Erfdienstbaarheden*):** A burden on one property for the benefit of another. [ ] [72](#page=72). * **Surface Right (*Opstalrecht*):** The right to own buildings or plantations on, above, or below another's land. [ ] [72](#page=72). * **Real Securities (*Zakelijke zekerheden*):** Assets that serve as a guarantee for the repayment of a debt, granting priority to the creditor (e.g., mortgages, pledges, retention rights, reservation of ownership). [ -74 [73](#page=73). * **Rights of Claim (*Vorderingsrechten*):** Grant the right to a performance from another person (to do, to refrain from doing, or to give). [ ] [75](#page=75). * **Intellectual Property Rights:** Grant temporary and exclusive exploitation rights over creations of the human mind (e.g., copyrights, patents, trademarks). [ ] [75](#page=75). #### Extrapatrimonial Rights These rights relate to non-economic interests and are generally inalienable: * **Personality Rights:** Rights related to physical, psychological, and moral integrity, name, image, and privacy. [ ] [76](#page=76). * **Family Rights:** Rights related to marriage, divorce, legal cohabitation, and filiation. [ ] [76](#page=76). ### Chapter 9: Sustainable Development Sustainable development is defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It is supported by international frameworks and national legislation, requiring governments to pursue social, economic, and environmental objectives with intergenerational solidarity. [ -78 [77](#page=77). #### Legal Frameworks * **International:** Agreements like the UN's Agenda 21 and the Sustainable Development Goals (SDGs) provide an international framework. [ ] [77](#page=77). * **Federal (Belgian):** Article 7bis of the Constitution mandates federal authorities to pursue sustainable development objectives. Various federal bodies and plans contribute to this policy. [ ] [78](#page=78). * **Regional (Flemish):** Regional decrees promote sustainable development with a focus on transition and inclusive, coordinated, and participatory policies. [ ] [79](#page=79). #### Climate Litigation Legal actions, notably by environmental organizations and citizens, have been instrumental in pushing governments to adopt more ambitious climate policies, invoking both human rights conventions and tort law principles. [ ] [80](#page=80). ### Chapter 10: Diversity #### Concept of Diversity Diversity encompasses all forms of human variation, including but not limited to multiculturalism. The concept has evolved to "super-diversity," recognizing increasing complexity and the need for societal normalization and active engagement with these differences. [ ] [84](#page=84). #### Law and Diversity * **Formal Equality:** The law aims for formal equality, prohibiting discrimination based on various grounds (e.g., gender, race, religion, disability). [ ] [84](#page=84). * **Material Equality:** The reality of power imbalances and structural inequalities often leads to "inequality of diversity." The law is increasingly called upon to move from formal to material equality, addressing systemic disadvantages. [ ] [84](#page=84). * **Intersectionality:** Recognizes that disadvantages often intersect across multiple identity characteristics. [ ] [84](#page=84). * **Co-constitution:** Law and diversity mutually shape each other; law can reproduce or challenge diversity-related norms and power structures. [ ] [84](#page=84). #### The "Neutrality" of Law While law aims for neutrality, particularly concerning religious or ideological beliefs, critical legal theories argue that law often reflects the perspectives of dominant groups and can perpetuate existing power structures and biases. [ ] [85](#page=85). * **Critical Legal Studies (CLS) and related theories:** Focus on deconstructing and reconstructing legal narratives to address structural inequalities and promote material equality. [ ] [85](#page=85). * **Challenges to Critical Approaches:** Criticisms include accusations of subjectivity, bias, essentialism, and overlooking the culpability of individuals within dominant groups. [ ] [85](#page=85). #### Illustration: Marriage Marriage, a historically gendered institution, has undergone reforms to promote gender equality. However, it remains rooted in heteronormative assumptions, failing to fully accommodate the spectrum of contemporary family structures. [ -86 [85](#page=85). ### Part III: Professional Actors in Law #### Magistrates * **Role:** Magistrates (judges and public prosecutors) resolve disputes and have a reconciliation mandate. They are appointed for life by the King upon nomination by the High Council for Justice, ensuring independence. [ ] [87](#page=87). * **Types:** Judges (sitting) decide cases, while public prosecutors (standing) represent society and advise on matters. [ ] [87](#page=87). * **Access to the Profession:** Entry pathways involve rigorous examinations and internships, ensuring quality and competency. [ -88 [87](#page=87). #### Court Personnel * **Clerk of Court (*Griffier*):** Assists magistrates by managing administrative and procedural aspects of court proceedings, ensuring the formal validity of judgments. [ ] [89](#page=89). * **Legal Referendary (*Referendaris*):** Provides legal assistance to judges, particularly in higher courts, and is a highly qualified legal professional. [ ] [89](#page=89). * **Public Prosecutor's Jurist (*Parketjurist*):** Works within the Public Prosecutor's office, assisting prosecutors in their duties. [ ] [89](#page=89). #### Lawyers (*Advocaat*) * **Role:** Lawyers advise, assist, and represent parties in legal proceedings. They have a monopoly on pleading and are bound by a strict deontological code. [ ] [90](#page=90). * **Practice:** Lawyers operate as independent professionals, building their own clientele. Their fees are typically paid by the client, with specific regulations against *pactum de quota litis* (agreements on fees contingent on the outcome). [ ] [90](#page=90). * **Bar Associations:** Lawyers are affiliated with bar associations, which oversee professional standards and conduct. [ ] [90](#page=90). * **Specialization:** A special category of lawyers exists for practice before the Court of Cassation, requiring advanced training and examination. [ ] [90](#page=90). #### Bailiff (*Gerechtsdeurwaarder*) * **Role:** Bailiffs are ministerial officers responsible for serving legal documents, enforcing court orders, and executing judgments. They are personally and professionally liable for their actions and must carry professional liability insurance. [ ] [91](#page=91). * **Access:** Entry requires a comparative examination and a period of traineeship. [ ] [91](#page=91). #### Notary (*Notaris*) * **Role:** Notaries are public officials who draft authentic deeds, ensuring the legality and enforceability of acts while remaining neutral and advising all parties involved. [ ] [92](#page=92). * **Status:** They hold a hybrid status as public officials with a free profession, subject to a specific deontological code and disciplinary oversight. [ ] [92](#page=92). * **Access:** Admission to the profession is highly selective, requiring advanced legal degrees, a notarial traineeship, and a competitive examination. [ ] [92](#page=92). #### In-House Counsel (*Bedrijfsjurist*) * **Role:** Provide legal guidance to companies and are a protected title. They typically work in-house but can also act as independent consultants. [ ] [92](#page=92). #### Public Lawyer (*Overheidsjurist*) * **Role:** Work within public administration, with roles and specializations varying by their employing entity. [ ] [93](#page=93). #### Academics in Law (*Jurist in academia*) * **Role:** Involved in teaching and research at universities, contributing to legal scholarship and policy development. They play a role in legislative reform and contribute expertise to various legal fields. [ ] [93](#page=93). ### Part IV: Introduction to Civil Procedure Civil procedure governs how civil disputes are resolved within the legal system, emphasizing the prohibition of self-justice and the reliance on state courts. [ ] [94](#page=94). #### Principles of Proper Procedure Key principles guiding civil procedure include the right to a fair trial, access to justice, the adversarial principle (hearing both sides), equality of arms, judicial impartiality, and the obligation for reasoned decisions and timely resolution. [ -106 [104](#page=104). #### Types of Claims * **Main Claim (*Hoofdvordering*):** Initiates the legal proceedings. [ ] [128](#page=128). * **Incidental Claims (*Tussenvordering*):** Claims made during ongoing proceedings, such as counterclaims, intervention by third parties, or amendments to the main claim. [ ] [128](#page=128). #### Course of Civil Proceedings Civil proceedings generally involve three phases: initiation, preparation (exchange of pleadings and evidence), and judgment. The process can begin with a writ of summons (*dagvaardingsexploot*) or a petition (*verzoekschrift*). [ -131 [129](#page=129). #### Judgment and Appeals * **Judgments:** Decisions made by courts can be judgments (*vonnis*) or rulings (*arrest*). Judgments can be final or interim (deciding on certain issues while deferring others). [ -136 [135](#page=135). * **Remedies:** Parties can challenge judicial decisions through ordinary remedies (opposition, appeal) or extraordinary remedies (cassation, third-party opposition). [ -141 [137](#page=137). * **Opposition (*Verzet*):** Available against default judgments. [ ] [138](#page=138). * **Appeal (*Hoger beroep*):** Allows for a review of a case by a higher court. [ ] [140](#page=140). * **Cassation (*Voorziening in cassatie*):** A review by the Court of Cassation of legal errors, not factual ones. [ ] [122](#page=122). #### Forced Execution If a party fails to comply with a judgment, forced execution may be initiated through real execution (direct enforcement of the obligation) or execution by equivalent (monetary compensation). [ -143 [142](#page=142). * **Enforcement Title (*Uitvoerbare titel*):** A judgment or authentic deed that allows for forced execution. [ ] [145](#page=145). * **Provisional Execution (*Voorlopige tenuitvoerlegging*):** Allows for the enforcement of a judgment that is still subject to appeal or opposition. [ ] [145](#page=145). #### Enforcement by Seizure (*Verhaalexecutie*) This involves the seizure and sale of a debtor's assets to satisfy a creditor's claim, subject to principles of asset unity, debtor's liability with their entire patrimony, and equality among creditors (with exceptions for secured creditors). [ ] [144](#page=144). #### Organization and Jurisdiction of Courts The Belgian judicial system is hierarchical and territorial, with different courts having specific jurisdictions based on the nature of the dispute (material jurisdiction) and geographical area (territorial jurisdiction). [ -120 [112](#page=112). * **Hierarchy:** Includes Peace Courts (*Vredegerecht*), Police Courts (*Politierechtbank*), Courts of First Instance (*Rechtbank van eerste aanleg*), Labour Courts (*Arbeidsrechtbank*), Enterprise Courts (*Ondernemingsrechtbank*), Courts of Appeal (*Hof van Beroep*), and the Court of Cassation (*Hof van Cassatie*). [ -122 [115](#page=115). * **Specialized Courts:** Include Labour Courts and Enterprise Courts, with specific mandates in their respective fields. [ -119 [118](#page=118). * **Jurisdiction:** Determined by material, territorial, and sometimes exclusive criteria. Parties cannot deviate from rules of material jurisdiction. [ ] [114](#page=114). #### Public Prosecutor's Office (*Openbaar Ministerie*) The Public Prosecutor's Office represents society, ensures the proper application of law, and has a role in both criminal and civil proceedings, offering opinions and, in some cases, initiating proceedings. [ -123 [122](#page=122). #### High Council for Justice (*Hoge Raad voor Justitie*) An independent body established after the Dutroux affair, responsible for the selection and appointment of magistrates, external oversight of judicial institutions, and providing advice to improve the justice system. [ ] [124](#page=124). #### Institute for Judicial Training (*Instituut voor Gerechtelijke Opleiding - IGO*) Provides initial and ongoing training for all judicial personnel. [ ] [125](#page=125). #### Judicial Procedural Principles * **Principle of Party Autonomy (*Beschikkingsbeginsel*):** Parties largely control the scope and conduct of civil proceedings. [ ] [108](#page=108). * **Active Judge Role:** While party autonomy is key, the judge plays an active role in managing the case, ensuring efficiency, and applying the law. [ -111 [109](#page=109). * **Due Process:** Entails access to justice, the right to be heard, equality of arms, judicial impartiality, reasoned decisions, and timely resolution of cases. [ -107 [104](#page=104). *** **Common Mistakes to Avoid:** * Confusing factual capacity with legal capacity to act. * Overlooking the nuances between absolute and relative nullity. * Misinterpreting the scope of vicarious liability. * Failing to distinguish between different types of legal persons and their respective liabilities. * Confusing legal facts with legal acts. * Forgetting the specific procedural requirements for different types of legal acts (e.g., solemnity). * Assuming that all civil wrongs automatically lead to liability without considering all legal requirements (fault, damage, causation). * Incorrectly applying the rules regarding the capacity of minors or mentally incapacitated persons. * Confusing the roles and jurisdictions of different courts. * Forgetting the distinction between patrimonial and extrapatrimonial rights and their legal implications. * Incorrectly applying the strict liability rules for things and animals. * Misunderstanding the principle of the equivalence of creditors and the role of securities. * Failing to grasp the concept of abuse of law and its limited application. * Overlooking the procedural steps and deadlines in civil proceedings. * Confusing the various types of legal remedies and their applicability.

## Glossary | Term | Definition | | :---------------- | :------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | Objective law | The body of behavioral rules that exist within a specific society at a particular time. | | Subjective rights | Rights held by legal subjects (natural or legal persons), which are claims authenticated by law concerning fellow persons (leading to contract law) or objects (leading to property law), intended to be realized within legal interactions. | | Public law | The body of law governing relationships between citizens and the government, or between different governmental entities, such as criminal law, tax law, social security law, and administrative law. | | Private law | The body of law governing relationships between private individuals or entities, typically considered equals, regulating legal interactions between citizens, such as contract law, inheritance law, and property law. | | Legal person | An entity (a group of legal subjects or a separate patrimony) that can be the holder of rights and obligations. | | Legal fact | An event that produces legal consequences. | | Legal act | A human declaration of will by which a legal subject undertakes an action with the aim of producing legal consequences, which are intended by the person performing the legal act. | | Legal capacity | The competence to be the holder of rights and duties. | | Legal personality | The entirety of rights and obligations of a legal subject. | | Freedom of contract | The principle that parties are free to enter into contracts and determine their content, within the bounds of the law. | | Legal certainty | The requirement that the law should be predictable, stable, generally applicable, and internally consistent. | | Rule of law | The principle that all individuals and institutions are accountable to and must uphold laws that are publicly promulgated, equally enforced, and independently adjudicated, which are consistent with human rights principles. | | Public order | Fundamental legal principles that safeguard the essential interests of the state or community, or that form the legal basis upon which society rests, such as the economic, moral, social, or environmental order. |