KS DH Juris flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Hierarchy of norms

Kelsen's pyramid: constitution at top, then statutes, decrees, ordinances. A lower norm is valid only if consistent with higher norms, ensuring coherence of the legal order.

Analogy

Application of a norm to a similar but unregulated case where an unintended gap exists and similarity justifies extension. Prohibited in criminal law to the accused's detriment.

Direct effect of directives

A directive may be invoked vertically against the state when its provisions are clear, unconditional, and the transposition deadline has passed. It cannot impose obligations on private parties.

Primacy of EU law

EU law prevails over conflicting national law. National courts must disapply conflicting provisions without waiting for legislative repeal, as established in Costa v ENEL and Simmenthal.

Proportionality test

Administrative measures must pursue a legitimate aim, be suitable, necessary (least restrictive means), and proportionate in the narrow sense after balancing interests.

Administrative act

Unilateral, authoritative decision by a public authority on a concrete matter, requiring competence, proper procedure, form, and lawful content. It may be annulled if defective.

Good-faith acquisition

A bona fide purchaser of a movable from a non-owner may acquire ownership if in good faith and the transfer meets statutory conditions, protecting reliance in commercial transactions.

Expectation interest

Damages placing the injured party in the position they would have occupied had the contract been performed. Contrasts with reliance interest, which restores the pre-contractual position.

Forced heirship

Civil law rule reserving a minimum share (Pflichtteil) of the estate to close relatives, typically descendants and spouse, regardless of the testator's will.

Nullum crimen sine lege

No crime or punishment without a prior, clear statutory basis. Prohibits retroactive criminal law and analogy to the accused's detriment.

Dolus eventualis

Form of intent where the offender foresees the prohibited result as possible and accepts it. Distinguished from negligence, where the result is not accepted.

In dubio pro reo

Principle that any remaining doubt at trial must be resolved in favour of the accused. It complements the presumption of innocence in criminal procedure.

Res judicata

A final judgment binds the parties and their successors on the same claim, preventing re-litigation. It becomes effective when no ordinary appeal remains.

Burden of proof

Party asserting a claim must prove its founding facts; the opponent must prove facts defeating the claim, such as performance or limitation.

Interim injunction

Provisional court order to secure a claim or prevent harm pending final judgment. Requires a substantive claim and urgency; claimant may need to provide security.

Insolvency filing duty

Directors must file for insolvency within a statutory period after illiquidity or over-indebtedness. Late filing can trigger personal liability for payments made after the deadline.

Avoidance action

Insolvency administrator may claw back transactions that prejudice creditors within suspect periods before opening, such as gratuitous transfers or preferential payments.

GmbH

Limited liability company with minimum share capital, separate legal personality, and shareholder liability limited to paid-in contributions. Managed by a director appointed by shareholders.

Social selection

In redundancy dismissals, employer must select among comparable employees using social criteria such as tenure, age, and dependants, to protect the socially weaker.

Collective agreement

Contract between union and employer association setting minimum terms and conditions. Directly binding on members and often extended by ministerial declaration.

Works council

Employee representation body with co-determination rights in social, personnel, and economic matters. It cannot call strikes, which remain a union function.

Legality of taxation

Taxes require a statutory basis; no tax may be imposed by analogy to the taxpayer's detriment. This principle anchors tax law in the rule of law.

Input tax deduction

A taxable person may deduct VAT paid on inputs used for taxable supplies, preventing cascading taxation. Requires a valid invoice and business purpose.

Arm's length principle

Related-party transactions must be priced as between independent parties. Transfer pricing documentation supports the price and adjustments may be made by tax authorities.

Francovich liability

Member state liability for damage caused by failure to transpose a directive, where the directive grants rights, breach is serious, and causation exists.

Preliminary reference

Procedure under Article 267 TFEU where national courts ask the CJEU to interpret EU law. Courts of last instance must refer; others may refer.

Pacta sunt servanda

Treaties are binding on the parties and must be performed in good faith. Codified in Article 26 of the Vienna Convention on the Law of Treaties.

Confidentiality

Lawyer must not disclose information learned in the mandate without consent or statutory duty. The duty survives termination and protects client trust.

Conflict of interest

Lawyer may not represent parties with opposing interests in the same matter. Must decline or obtain informed consent where professional rules permit.

Client trust account

Client funds must be held separately from the firm's own assets, accurately accounted for, and not commingled. Misuse may lead to disciplinary sanctions.

Contingency fee

Fee dependent on outcome. Permitted in some civil matters but generally prohibited in criminal defence to avoid distorting professional judgment.

Teleological interpretation

Interpreting a norm according to its purpose and the interests it protects, used alongside literal, systematic, and historical methods in civil law.