Amparos posesorios e interdictos contra la Administración

• Main Author: Fernando Martínez Peréz
• Format: Article
• Language: deu
• Published: Max Planck Institute for Legal History and Legal Theory 2010-01-01
• Series: Rechtsgeschichte - Legal History
• Subjects: MPIeR
• Online Access: http://data.rg.mpg.de/rechtsgeschichte/rg16_242perez.pdf
• ISSN: 1619-4993; 2195-9617

This work is based on the need to provide a satisfactory explanation of the origins of article 445 of the Spanish Civil Code of 1889. The author argues that this provision contains within it the summary possessory remedy known by medieval and modern jurisprudence by several names such as mandatum de manutenendo, interim, etc. This procedural instrument was characteristic of a traditional way of viewing rights in rem as compatible with the division of property and the protection of land tenure. The continuation of this procedure throughout the 19th century depends primarily on its use in the process of abolition of the feudal regime in Spain. It was thus an instrument for the creation of the individual owner, because the summary procedure was employed by former landowners to keep their incomes in the face of non-payment by those who considered them abolished by revolutionary legislation. However, the use of this procedure was not permitted against actions of the Administration because the process of dissolution of the feudal regime was considered more as nationalisation than as abolition of rents. Finally, the role of judges and courts as protagonists is yet another indication of the Sonderweg of the constitutionalisation within Hispanic political society and is related to the maintenance of a jurisdictional rather than legal form in the management of political power during the 19th century.