法律关系的要素
法律入门：关键概念和定义 ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● 瑞士从起源到20世纪的发展 ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建
这门关于法律关系要素的课程采用的方法是对其主要组成部分进行定义和技术分析。第一步是准确定义基本术语和概念，如法律主体、法律行为、法律事实和各种制裁形式。这第一步对于确保清晰透彻地理解所使用的法律术语至关重要。
打好这些基础后，我们将研究这些要素在法律体系中是如何进行技术组织的。我们将研究法律主体之间如何相互作用，法律行为和事实如何导致现实中的后果，以及制裁如何在不同的法律环境中实施和发挥作用。
通过这种方法，我们不仅可以了解这些法律要素的性质，还可以了解它们在法律体系中相互关联的功能。通过对法律基本原则提供技术性的详细透视，本课程旨在使学生掌握分析和解释复杂法律问题的必要工具。
法律主题
法律主体是法律关系的核心，包括自然人和法律实体，每个主体都拥有权利和义务的能力。自然人是人类个体，自出生起即被承认为法律主体。他们的法律行为能力可能因多种因素而异，例如达到法定成年年龄，即完全有能力签订合同、拥有财产或采取法律行动。例如，未成年儿童未经其法定代理人同意，不能签订某些类型的合同。
另一方面，法人，如公司、协会或基金会，是由法律创建和认可的实体。它们并不像人一样实际存在，但它们具有法律身份，能够采取行动、签订合同并在法律面前承担责任。例如，公司可以签署合同、拥有财产并对其法律行为负责，即使这些行为是由人类代表实施的。
自然人和法人之间的这种区别在法律界至关重要。它使我们能够理解权利和义务的不同归属和管理方式。每一类法律主体都在社会和经济结构中发挥着独特的作用，反映了现代社会法律关系的多样性和复杂性。
自然人
在法律领域，自然人是法律赋予其权利并规定其义务的人类个体。这种承认是法律制度的基础，涉及几个重要方面。一个人从出生起，有时甚至在出生前，就被承认为自然人。这种承认赋予他们独特的法律身份，其标志是赋予他们姓名、公民身份和基本权利，如生命权、安全权和自由权。随着他们的成长，其他权利和义务也随之增加，如选举权或刑事责任，而这些权利和义务往往取决于年龄或其他具体标准。
个人的法律行为能力也是一个重要方面。这是指行使权利和履行义务的能力。这种能力可能是充分和完全的，如成年人的一般情况，也可能在某些情况下是有限的，如未成年人或受监护人的情况。此外，自然人有能力采取法律行动，维护自己的权利或为自己的行为负责。这意味着一个人可以采取法律行动来维护自己的权利，或在受到指控时为自己辩护。
这种对个人的法律承认是法律制度的基石。它确保每个人都作为社会中的自主实体得到考虑、尊重和保护，并拥有明确界定的权利和责任。
法人
法人可以是由个人组成的团体（如公司），也可以是由大量资产组成的团体（如某些机构），它们是为实现特定目的而创建的。法律赋予它们自身的法律存在，有别于组成或创建它们的个人的法律存在。这种区别对于理解它们如何运作及其在法律体系中的地位至关重要。公司、协会和基金会等法律实体拥有与自然人类似的权利和义务。它们可以拥有财产、签署合同、采取法律行动并为自己的行为负责。例如，公司可以与其员工签订雇佣合同、拥有财产并负责遵守环境法规。
法人的法律存在独立于其成员或创始人。这意味着，即使成员变更或创始人去世，法人的存在也会继续。这种连续性对于法人参与的交易和法律关系的稳定性至关重要。法人实体的法律行为能力由其创建时所依据的法律及其公司章程或附则规定。这包括法人治理的条件、法人宗旨以及法人运作和解散的规则。
受私法管辖的法人在法律和经济领域发挥着重要作用，主要分为民事实体和商业实体。民事实体包括协会和基金会，每种实体都有各自的特点和目标。例如，协会由一群人组成，他们聚集在一起追求一个共同的、通常是非营利性的目标，如促进艺术、保护环境或提供社会援助。它们受社团章程管理，章程规定了它们的结构和运作方式，虽然它们可能拥有资产或雇佣员工，但其主要目的不是创造利润。另一方面，基金会通常是由一个或多个捐赠者创建的实体，他们将初始资本用于特定目的，如支持医学研究或教育。与协会不同，基金会主要不是由成员组成，而是由专门用于某一事业的资产组成。基金会通常受到国家的严格监管，以确保其活动和管理符合其既定使命。在商业领域，匿名公司（SA）是一种常见的法律实体形式。这种形式适合大公司，可以通过出售股份筹集大量资金。股东的责任以其出资额为限，因此这种公司对许多投资者具有吸引力。公共有限公司在成立、管理和财务透明度方面都有严格的规定。例如，大型工业公司可以选择有限公司的形式来为其扩张融资，同时保护其股东。私法中这些不同形式的法律实体反映了法律和经济世界中需求和结构的多样性。无论是追求普遍利益的目标，还是促进大型商业活动，它们都为公司组织和开展集体活动提供了重要框架。
在国内和国际上，受公法管辖的法人在组织和管理公共事务方面发挥着至关重要的作用。这些法人因其使命和结构而与众不同，受公法管辖。根据国内公法，联邦国家、市政当局和自治公共机构等实体是受公法管辖的法人的典型代表。这些实体根据公法被赋予特定的权限和权力，以执行涉及普遍利益的任务。例如，联邦国家拥有全球权限，在国家层面管理国防、外交政策和经济监管等领域。市政当局则负责处理城市规划、初等教育和地方公共服务等地方事务。自治公共机构则负责管理公共交通、水资源管理或文化服务等具体活动。它们的自治允许进行专业化管理，同时仍处于国家的控制和监督之下。
在国际公法中，法人包括主权国家、国际组织和超国家机构等实体。这些实体在国际上享有权利并承担义务。例如，国家享有主权，并通过签署条约、参加国际组织和遵守国际法参与国际关系。国际组织，如联合国或欧盟，由国家间的协议组成，具有特定的目标，如促进和平、经济合作或环境保护。这些公法实体，无论是国内实体还是国际实体，对于构建和规范社会内部和国家之间的互动都至关重要。它们的存在和运作受特定法律标准的制约，确保其管理有序并符合公法原则。
The legal relationship
The concept of a legal relationship is fundamental to understanding how legal systems work. It refers to a legal relationship between at least two parties, where one has the right to require the other to perform a legal duty. This relationship is the very basis of legal interactions and can manifest itself in various ways in practice.
A classic example of a legal relationship is that between a creditor and a debtor under a contract. The creditor is the person who has the right to demand that the debtor fulfil an obligation, such as paying a sum of money or delivering goods. In this case, the legal relationship is defined by the terms of the contract between the two parties. Another example can be seen in the field of public law. For example, a citizen has obligations to the State, such as paying taxes or complying with the law. Conversely, the state has duties towards its citizens, such as guaranteeing fundamental rights and providing public services. These reciprocal obligations and rights form a legal relationship between the individual and the state.
In all cases, the legal relationship involves a balance between rights and obligations. It is regulated by the legal system to ensure that the rights of each party are respected and that the obligations are fulfilled. This structure is crucial to maintaining order and justice in society.
Juridical act
A juridical act is a key concept in law, designating any expression of will, whether explicit or implicit, intended to produce specific legal effects. This expression of will can take various forms and is intended to create, transfer, modify or extinguish a right. Legal acts are essential in structuring legal relationships, as they enable the parties to organise their relations in a consensual and predictable manner.
A typical example of a legal act is a contract. When two parties enter into a contract, they are expressing their intention to enter into a legal commitment to each other. The terms of the contract determine the rights and obligations of each party. For example, a contract of sale involves the transfer of ownership of a good from the seller to the buyer, while the buyer undertakes to pay the agreed price. Wills are another example of a legal act. In a will, a person expresses his or her wishes regarding the distribution of his or her property after death. This legal act allows the legal distribution of the deceased's assets to be changed in accordance with his or her last wishes.
Legal acts can also be implicit, taking the form of actions which, although not explicitly declared, are legally interpreted as expressing a will. For example, the payment of a sum of money for a purchase may be regarded as implicit acceptance of the terms of sale. The validity of a legal act depends on a number of factors, including the capacity of the parties to contract, their free and informed consent, and the act's compliance with the legal standards in force. Legal acts are therefore governed by the law to ensure that the legal effects they produce are legitimate and fair.
A unilateral act in law is an important concept, distinguished by the fact that it emanates from the will of a single person, unlike bilateral or multilateral acts, which require the agreement of several parties. This unilateral act is characterised by the fact that a single person decides to create, modify, transfer or extinguish a legal right or obligation. Among the most common examples of unilateral acts, the will is particularly significant. In a will, a person (the testator) expresses his or her wishes regarding the distribution of his or her property after his or her death. This document takes effect only on the death of the testator and is based entirely on his personal decisions, without requiring the agreement of others. Another example is an acknowledgement of paternity. When a man acknowledges that he is the father of a child, this acknowledgement is a unilateral legal act that creates a parent-child relationship and gives rise to rights and obligations, such as parental responsibility and maintenance obligations. These unilateral acts are essential in the legal system because they enable a person to exercise his or her will autonomously, creating legal effects that will be respected and applied by the law. However, to be valid, they must comply with certain conditions of substance and form, such as the absence of defects in consent in the case of a will, or compliance with the laws in force in the case of an acknowledgement of paternity.
The bilateral legal act is a central figure in law, involving the concordant manifestation of two distinct wills. This category of legal act is characterised by the mutual commitment of the parties, each agreeing to submit to certain obligations or to benefit from certain rights. The contract of sale is a perfect example of a bilateral act. In such a contract, the seller undertakes to transfer ownership of a good or service to the buyer, while the buyer undertakes, in return, to pay the agreed price. Each party has specific obligations: the seller must deliver the good or service in accordance with the terms of the contract, and the buyer must make payment in accordance with the agreed terms. This type of agreement is based on the principle of party autonomy, whereby the parties are free to determine the content of their contract within the limits set by law. The validity of a bilateral deed depends on a number of factors, including the informed and free consent of each party, the lawful purpose of the contract, and the legal capacity of the parties to contract. Bilateral acts are fundamental to commercial and personal relationships, as they enable the parties to organise their affairs in a structured and predictable way, creating legally binding and enforceable rights and obligations.
A multilateral act is a type of legal act involving the expression of the will of several parties. Unlike a unilateral act, which emanates from a single person, and a bilateral act, which results from the agreement of two parties, a multilateral act requires the participation and consent of several individuals or entities. The creation of an association is a classic example of a multilateral act. When several people decide to join together to form an association, they must all agree on the objectives, operating rules and structure of the new entity. This agreement generally takes the form of the drafting and signing of the association's articles of association, which define its purpose, operating procedures, the rights and obligations of its members, and other essential aspects of its organisation. In a multilateral act such as the creation of an association, each participant contributes his or her will and consent to the joint act. The validity of the act depends on the agreement of these wishes and compliance with legal and regulatory conditions. These acts are important because they reflect the ability of individuals to collaborate and organise themselves collectively to achieve common goals, while creating legally recognised and operational structures.
The juridical fac
The concept of a juridical fact is crucial to understanding how the law interacts with everyday events. A juridical fact, unlike a juridical act, does not involve an expression of will intended to produce legal effects. Rather, they are events or circumstances to which the law automatically attaches certain legal consequences. These facts may be of various kinds, including natural events or involuntary human actions, and their occurrence creates, modifies or extinguishes rights and obligations.
For example, a natural event such as the death of a person has important legal consequences. It results in the transfer of his or her property to his or her heirs, in accordance with the rules of succession. Here, there is no will expressed by the deceased at the time of death, but the fact itself generates legal effects. Another example of a legal fact is a car accident. Although the accident may not be intentional, it creates legal obligations, such as the civil liability of the perpetrator towards the victims for the damage caused. In this case, even if the accident is not the result of an intentional action intended to create legal effects, it nevertheless does.
Legal facts are essential to understanding how seemingly unrelated events can have significant legal implications. They show that the law is closely linked to social and natural reality, and that it is designed to regulate the consequences of various life events.
Legal sanction
Legal sanction is a key element of the legal system, serving as a mechanism to ensure compliance with the legal order. It represents the consequences imposed on a person who violates a legal obligation. These sanctions can take a variety of forms and are designed to restore order, punish non-compliance and prevent future breaches.
Sanctions may be civil, criminal, administrative or even disciplinary in nature, depending on the context and the nature of the offence. For example, in civil law, if a person breaches the terms of a contract, they may be required to pay damages to the injured party. The purpose of this sanction is to compensate the loss suffered by the victim of the breach of contract. In the criminal field, sanctions are generally more severe and may include penalties such as fines, prison sentences or community service. These penalties are intended not only to punish the guilty party, but also to deter others from committing similar offences.
Administrative sanctions, on the other hand, are often applied in response to breaches of specific regulations, such as violations of environmental standards or labour law. These sanctions can include fines, suspension of a licence or authorisation to carry out a professional activity. Finally, disciplinary sanctions are used in professional or institutional contexts, for example when a member of a regulated profession, such as a doctor or lawyer, fails to comply with the ethical or professional standards of his or her profession. In this way, sanctions play a crucial role in maintaining legal order, ensuring that offences are dealt with appropriately and supporting the integrity of the legal system.
Civil penalties
The main purpose of civil penalties in the legal system is to restore the balance broken by the breach of a social or contractual obligation. Unlike criminal sanctions, which aim to punish and deter, civil sanctions seek to correct the consequences of an action or inaction that does not comply with legal or contractual obligations.
When a party breaches a contract, for example, the civil penalty may consist of an obligation to pay damages to the injured party. These damages are calculated to compensate for the loss suffered as a result of the breach of contract. The idea is to put the injured party back in the position it would have been in had the obligation been properly performed. In some cases, the civil penalty may also involve restitution or reparation. For example, if someone damages someone else's property, they may be required to repair the damage or replace the damaged object. In addition, the courts may impose measures such as specific performance, where the offender is forced to fulfil the original undertaking, such as completing a job agreed in a contract. Astreintes, which are financial penalties for each day of delay in complying with a judgment, can also be used to encourage compliance.
Civil penalties therefore play a crucial role in regulating private legal relationships, aiming to right wrongs and restore as far as possible the situation prior to the breach of obligation.
Penal sanctions
Penal sanctions are a central element of the justice system and play a crucial role in maintaining public order and protecting society. Imposed by the public authorities, they are established in the general interest and are designed to repress behaviour deemed harmful or dangerous to society, as defined by criminal law. Criminal sanctions are imposed by the courts following a judicial process in which the accused is judged for his or her alleged actions in breach of the law. They can take different forms, depending on the seriousness of the offence and the specific circumstances of each case. Among the most common sanctions are fines, prison sentences, community service or probation.
The main purpose of criminal sanctions is to punish the guilty party in order to deter both the person concerned and society in general from committing similar acts. It also aims to protect society by neutralising, temporarily or permanently, individuals deemed to be dangerous. For example, a prison sentence aims not only to punish the offender, but also to remove him or her from society for a given period in order to prevent further crimes. In addition to these punitive and preventive objectives, criminal sanctions can also have a rehabilitative function. Some penalties, such as training programmes or therapies, are designed to help offenders reintegrate into society and lead a law-abiding life in the future.
Penal sanctions are therefore an important tool for the justice system, which aims to balance the need to punish offences, protect society and offer rehabilitation opportunities to offenders.
Administrative penalties
Administrative penalties are a form of reaction by the State to breaches of rules or obligations under public law. It differs from criminal and civil sanctions in that it is imposed not by a court, but by an administrative authority in the exercise of its regulatory and supervisory functions. These sanctions are generally applied in response to breaches of specific rules and regulations administered by the various branches of the public administration. They are designed to ensure compliance with the standards established for the proper functioning of society and the protection of the general interest.
A classic example of an administrative sanction is the withdrawal of a driving licence. If a driver repeatedly or seriously breaches the rules of the road, as in the case of drink-driving or exceeding speed limits, the relevant administrative authorities may withdraw his or her licence. This measure is aimed at preventing future dangerous behaviour on the road and maintaining public safety. Administrative fines for non-compliance with environmental, health or building regulations are other examples of administrative penalties. These fines are imposed to ensure compliance with the standards set in these areas, which are essential for the protection of public health, the environment or the safety of buildings.
Administrative sanctions are therefore an important tool for public authorities, enabling them to enforce compliance with regulations and respond quickly and effectively to breaches, while contributing to good governance and the protection of society's interests.