The classification of goods Peruvian positive law

1. SOURCES OF LAW IN PERU

When studying the law of a State it has been planned which are the sources of law in it.

The Peruvian Civil Code 1984 does not establish which are the sources of Peruvian law, unlike the Spanish Civil Code if it provides.

For its part, the first paragraph of Article 2 of the Code of Commerce of Peru, 1902 stipulates that the acts of trade, whether or not traders who execute them, and whether or not specified in this Code, shall be governed by the provisions contained in it; failing that, by trade practice usually observed in each square, and in the absence of both rules, the common law.

We established that in the reforms approved preliminarily by the Code Reform Commission was established in Article I of the introduction of the Code Cicvil Peruvian Peruvian sources of law and Article II that the doctrine is not a source of law ().

That is, these achievements of the Commission's doctrine is not taken into account as a source of law.

In legal systems that are part of the Roman legal family germámica formal sources () are the following law: the law, custom, jurisprudence, doctrine and general principles ().

The standard of the Preliminary Title III of the Peruvian Tax Code (DS 135-99 EF-1999 which is the consolidated text of Leg. 816 of 1996) states that are sources of tax law: a) The constitutional, b) international treaties approved by Congress and ratified by the President of the Republic, c) The tax laws and rules of equivalent rank, d) or special organic laws regulate the creation of regional or municipal taxes, e) The decrees and regulations, f) jurisprudence, g) Decisions issued by the General Tax Administration and h) the legal doctrine.

At the end of this article states that are standards of equivalent rank to the law, those for which under the Constitution can create, modify, suspend or abolish taxes and provide tax benefits. Any reference to the law is construed as referring also to the rules of equivalent rank.

And it would be necessary in an Official Statement of Reasons is what causes argue why the doctrine is not considered a source of law.

2. POSITIVE LAW

Positive law is the right place in a state which is split or divided into two parts that are positive law and positive law not in force. That is, the positive law should not be confused with the law, since in some cases positive law is in effect and sometimes not in force. Positive law is composed of the Constitution, codes, laws, legislative decrees, supreme decrees, ministerial resolutions, among other regulations, among which there Merkl relationship as known in our midst as Kelsen's pyramid () () . Conducting a study of Peruvian civil law can say that within the current Peruvian positive law is among other code the Peruvian Environmental Code of 1990, the Peruvian Civil Code 1984, the Peruvian Criminal Code of 1991 and the Peruvian Civil Procedure Code 1993, and within the law does not force other codes is among the Peruvian Civil Code 1936, which was repealed by section 2113 of the Peruvian Civil Code of 1984 and the Peruvian Civil Code of 1852 which was repealed by art. 1823 Peruvian Civil Code of 1936.

In this sense we can say that not all Peruvians codes are in force, as some are abrogated. No effect on Codes Peruvian positive law there is no research that has been taken in view when making this research work. This explanation is needed of positive law by some authors confuse positive law with the law at some point in a given state. For an explanation of positive law is taken as some code examples of positive law Peruvian Codes that legislatures are well known among lawyers, jurists and lawyers, that is, this is one of the characteristics of the Codes. It should be noted that all listed codes are special codes that regulate only one branch of law which are contrary to the general code governing all areas of law and the Code of Canon Law and other Codes and the Code of Prussia 1794, the Code of Denmark, 1683, the Norwegian Code of 1867 and the Code of Russia, 1832. These last four codes cited are general codes and do not belong to modern coding that was initiated by the Code Napoleon, which is the French Civil Code of 1804 and other eighteenth-century French codes ().

That is, modern coding was initiated several French Code, within which stands the French Civil Code of 1804. Noting that the Napoleonic Code is still in force and has influenced many other Civil Codes of the world as in the Peruvian Civil Code, especially in the Peruvian Civil Code of 1852 and the Peruvian Civil Code of 1936, however the French Civil Code of 1804 also influenced the Peruvian Civil Code 1984. That is, all Special Codes Code Napoleon is the most commonly cited when studying modern encodings for its time was considered a breakthrough for French law and the world right this time, as it was Special code the first world, which was approved after a long debate, as some authors were against the coding they thought the coding would be occasions that the right to stop and that became law in static law, which would cause the law and does not evolve, a thesis that was not successful. It should be noted that the coding is studied by comparativists, which are scarce in the Peruvian and global law.

Therefore we can say that the encoding in our area is very poorly studied, within the theme highlights the work of Julio Gonzalez, whose book entitled Ayasta Comparative Law and Contemporary Legal Systems, which has been consulted in the preparation of this work research, which examines various encodings of the world especially in the civil sphere. The Napoleonic Code of 1804 as part of positive law French, German Civil Code of 1900 is part of the German positive law, the Argentine Civil Code of 1871 is part of Argentine law, the Spanish Civil Code is part of the Spanish positive law, the 1942 Italian Civil Code is part of the Italian positive law, the Code is part of Prussia Prussian law, the Civil Code of Haiti in 1831 as part of positive law in Haiti, Chile's Civil Code of 1857 as part of positive law Chilean The Civil Code of Colombia in 1857 as part of positive law Colombian Civil Code of the Dominican Republic in 1864 is part of positive law in the Dominican Republic, Uruguay Civil Code of 1868 is part of the Uruguayan positive law, the Code Guatemala, 1877 Civil positive law is part of Guatemala, El Salvador Civil Code of 1880 is part of the positive law of El Salvador, the Code of Denmark is part of positive law in Denmark, Norway Code is part of the right Norwegian positive and the Code of Russia is a Russian positive law, ie in each state there is a positive law applicable, within which stand the codes, legislative bodies to be well known among legal scholars, jurists and lawyers.

The record that the constitutions of states are considered key codes. Therefore, when studying the Code should also studied the constitutions.

3. GENERAL

This research project is within the classification title of the property, so it is necessary to note that some of the classifications studied are in the same classification of goods but of things, that is, some ratings are only tangible property, which is necessary to mention for a better understanding of this research and not to mislead investigators who have access to this research. At the time title to the present investigation there was the issue of whether the owner classification of goods in the Peruvian law or classification holder the right things in Peru, having chosen the first option is the most famous in our country.

It should be noted that the topic of law in the Roman law was not known or studied by different authors as a classification of goods but as a classification of things and there has been no problem so far.

For a better understanding of the topic proposed that the reader should keep in mind that classifications studied in this research are classified into two groups which are: real ratings and rankings or tangible things.

Also we record that in the studies of authors nations of classifying goods in the Peruvian law is taken as reference and not real things, which can be seen in greater detail when reviewing the literature of this research. However, it is also necessary to note that these studies are mainly aimed at proposing the replacement of the classification of movable and immovable property for the classification of real property registered and unregistered, with which many people agree on our half, but the author of this research work is not in agreement, as detailed in more detail when developing the same.

The authors argue that in our environment should be replaced classification of movable and immovable property for the classification of goods in registered and unregistered is apparently supported a fallacy (in the Spanish Language Dictionary of the Spanish Royal Academy () states that sophistry or argument is the apparent reason that you want to defend or to persuade it to be false) by which the classification has no role discarded Peruvian law, which we disagree, as explained more detail throughout the present investigation, therefore, can not be considered as alternative classifications or interchangeable.

To compreder this research work is necessary to consider the meaning of positive law which we deal in the first footnote of this research work, in which we need that positive law is formed by legislation such as the constitution, codes, laws, organic laws, legislative decrees, supreme decrees, ministerial resolutions, among other rules of positive law. That is, the positive law is characterized by a general in a particular State, such as Peruvian positive law has general application within the territory of Peru.

Among the different issues that need to be investigated by the writers, there are various issues that are located in different areas of law, but few subjects for study will have to study several areas of law as in the case of guarantees which was the subject of a previous research work that has already been published first in the Journal Volume 327 Legal Standards, Volume II, pg. 79 to 109 and then as a book and topic classification of goods. In this sense, the classification of goods emerges as a topic to be understood must be estud several branches of law, which is detailed with precision when studying the subject area (you need to let the authors noted that they have developed the same topic in previous research have not studied the subject area of ​​the classification of goods) of this topic in this research.

The objective of this research is to study the classification of goods in the Peruvian law, without forgetting the lessons of comparative law, which makes it possible to better understand the national law. Leaving established that one of the functions of comparative law is to better understand domestic law.

Research is warranted on the topic of law that do not exist in our research on it for review to consider all areas of law.

For the preparation of this research work has been taken into account that the law is a major source of law (or put another way in the Roman-Germanic legal family law takes precedence over other sources of law) in legal systems like that the Peruvian legal system Pertec Roman Germanic family, ie, the legal system has taken as a source of Roman law. Studying Peruvian positive law is to consider the best known of Peruvian law.

It is necessary to establish that the development of this research work has studied information sources and abroad. Noting that among the foreign news sources of the book highlights the Frenchman Rene David.

The classification of goods is of particular importance for the application of certain rules of positive law, which in some cases refer to movable or immovable property or goods registered or unregistered goods or consumer goods, or non-consumable goods , why then classified the goods under different criteria, stating that the classification referred to in the Book of Real Rights Peruvian Civil Code of 1984 is the classification of goods movable and immovable property . Classification is only a criterion for classifying assets as detailed below, and also the criteria of classification of goods and real estate property is partial, since it is not applicable to all goods but only the tangible assets.

The classification of goods is not only necessary for the application of civil law, but also for the implementation of other branches of positive law, such as criminal law, the registry law, corporate law, civil procedure law, labor law, among other areas of law.

In other cases no matter what kind of good for the holding of a particular contract and in the case of sale, letting, leasing, trust, real real right of retention or accessory to the crime of damage, in which suypuesto under Article 205 of the Penal Code rule applies to movable and immovable property.

The classification of personal property and real estate is not a classification of goods but of things, therefore, with this classification ignores the intangible assets. That is, can not be used to classify all goods, but the Peruvian Civil Code legislator de1984 confused classifications of goods, because in it there are some legislative defects, which are not exactly legislative technique ( legislative technique can be defined as the art of legislating).

For the preparation of this research work have been taken in view encyclopedias, treatises, books, dictionaries, magazines and national and international legal provisions, which enriches the subject matter of study, especially since the subject has not earned many studies by of writers, both domestic and foreign.

4. DEFINITION

When studying a topic it is necessary to previously define what is the meaning of research.

That is, define the legal meaning of investigation facilitates research.

For Couture goods is the name given to everything that has a measure of value and may be subject to legal protection ().

In this sense we can say that this research work we refer to economic assets and not non-economic goods, to mark the topic using economic terms.

That is, a first classification of goods is that goods are classified into economic goods and economic goods are not in that sense, one can study the economic goods and non-economic goods, but at present only be studied economic assets.

The classification of goods into economic goods and economic goods are not found in economics textbooks but not found in books, treatises, and law journals.

5. DIFFERENCE BETWEEN REAL THINGS

When studying a topic is necessary to differentiate the subject matter of study similar legal terms.

The present research concerns the classification of goods in the Peruvian law. That is, there is no reference to things but to the property, as such a corresponding duty to distinguish good thing.

The property refers to tangible property and intangible assets, while things refers only to tangible property, in this sense we can say that the legal term is very generic and the species is the thing.

In this sense if we study only the things we can make mistakes when investigating and mislead those who study our research, thereby providing a need to investigate the topic in the property and not just about things.

That is, when we study the property also study the things, but when we look at things we studied only part of the property, therefore, to study things implies a limited study of the research topic.

6. AREA OF KNOWLEDGE

To make the serious study of a subject it is necessary to first determine the area of ​​knowledge, which may cover branches of private law, public law and social law.

That is, in any serious study of a particular legal issue to be determined in advance which is an area of ​​new knowledge to fully investigate the issue in the law of a State.

It is necessary to mention that in previous research on the classification of goods made by other authors, has not developed the classification of goods, which does not explain the function of the classification of goods and in turn necessitates that a survey would not give up the study of Knowledge Area of ​​the classification of goods.

The study of classification of goods in this opportunity takes place in the Peruvian law, however, sometimes comparisons are made with the right of other States, which enriches the present research work.

The classification of property, includes the study of the civil law. Because the Peruvian Civil Code of 1984 establishes the classification of goods movable and immovable property and that some property rights and contracts are only applicable for a particular type of asset.

The classification of property, includes the study of part of corporate law. Because the Companies Registry Regulations provides rules for the supply of goods according to the type or class of asset in question.

The classification of property, includes the study of the commercial law. Because the law of individual companies with limited liability (D. Law 21 621), establishes rules for the supply of goods according to the type or class of asset in question. It should be noted that the study of individual limited liability company is especially important in comparative law, because the eirl is not enshrined in all jurisdictions. Therefore in the Peruvian State is different from the corporation that the legal person. In other states the same thing seems to be the legal entity the corporation, which deserves the micro study for comparison, since this topic has not earned the right corresponding study by the writers. A legal person is also known as a mystical person, corporation and moral person.

The classification of property, includes the study of the registry law. Because there are two classifications of goods by reference to the record or that are taken into account according to the record are: classification of real property and assets are not registrable registrable and classification of recorded real property and assets unregistered.

The classification of property, includes the study of the notary law. Because of the notarial law establishes a register of registrable property transfer.

The classification of property, includes the study of the procedural law. Because the Peruvian Civil Code of 1993 provides that goods are not subject to seizure and other provisions that establish rules for certain asset classes.

The classification of property, includes the study of the labor law. Because labor law Article 38 of Legislative Decree 650 provides that compensation of time deposits of services, including interest, are intangible and indefeasible, except for foods and up to 50%.

The classification of property, includes the study of the criminal law. Because in the Peruvian Criminal Code 1991 () are foreseen and punished crimes can be committed only on certain type or class of property such as the crime of misappropriation that can only be made in movable in accordance with Article 190 and can not be committed on real estate. For other offenses such as theft crime can only be committed on real estate under Article 202 of the Peruvian Criminal Code of 1991 and can not be done. In movable. For a better understanding of these crimes in the classification of goods is best to check other substantive articles of the Code in question, to avoid possible confusion.

The classification of property, includes the study of the tax law. For that article 21 of Legislative Decree No. 776 provides that the tax levied sales tax transfers to urban and rural property for consideration or not, whatever their form or manner, including retention of title sales.

The classification of property, includes the study of part of administrative law. For that article 6 () and 22 () of the General Law of National Cultural Heritage, contained in Law 28,296 published on July 22, 2004 only applies to real estate, and Articles 7 () and 23 () of the same rule apply to personal property.

The classification of property, includes the study of the customs duty that customs positive law as in the Peruvian Civil Code of 1993, provides that goods are indefeasible.

The classification of property, includes the study of part of constitutional law, for when studying this topic, it is necessary to consider Article 73 of the Peruvian Constitution of 1993.

The classification of goods includes consideration of the guarantees that when studying this topic is necessary to study the rules governing the globle and floating garment.

7. NATIONAL LEGISLATIVE BACKGROUND

In undertaking a serious study of a legal issue must take into account the national legislative history.

The most important national legislative history of the classification of goods in the Peruvian law, are the Peruvian Civil Code repealed and abrogated the 1936 Peruvian Civil Code 1852.

It is also a national legislative history of the Commercial Registry Regulation.

That is, the Peruvian Civil Code 1984 is not the first rule of positive law classifies Peruvian goods.

8. LEGISLATIVE HISTORY FOREIGN

In undertaking a serious study of a legal issue is necessary to consider foreign legislative history.

There are several legislative history in regard to classification of goods among which the Argentine Civil Code, the Spanish Civil Code, Civil Code of 1900 German and French Civil Code of 1804.

It should be noted that not only rules which can be considered as foreign legislative history, that is, there are other positive law standards abroad that can be considered as foreign legislative history.

In this sense we can say that the Peruvian positive law is not the first to classify the goods, but already above the positive law of other states, did before.

9. Doctrinaire NATIONAL HISTORY

When studying a subject, theme or topic can be viewed enriched such research when studying national doctrinal history.

There are few authors who developed the classification of goods in the Peruvian law, which allows us to understand that the topic of law has not deserve many studies by the writers and authors.

Among the national doctrinal history that deserves to have in mind regarding the classification of goods in the Peruvian law is the work of Jorge Avendaño Valdez, the work of Fernando Cantuarias Salaverry, the work of Francisco Avendaño Arana, the work of Fernando de Trazegnies, and the work of Carlos Cardenas Quirós.

In this sense we can say that few authors who studied the classification of goods in the Peruvian law.

10. FOREIGN BACKGROUND Doctrinaire

When studying a subject, theme or topic can be viewed enriched such research when studying foreign doctrinal history.

There are many foreign authors who have developed the classification of goods in foreign law, for which we have selected the most important, if not before record that may have missed some important.

Among the foreign docrinarios history that deserves to take into account regarding the classification of goods from drawing on the right are the following treaties: the work of the brothers Mazeaud, the work of Colin and Capintant, the work of Jose Maria Manresa and Navarro and work by Francisco Ricci. Of these four treaties the best known and cited in our midst is the Treaty of Civil Law Civil Law entitled Lessons of the brothers Mazeaud.

That is, many foreign writers who study the classification of goods, and it is necessary to consider the work of this topic in Roman law.

11. FUNCTION OF CLASSIFICATIONS OF PROPERTY

All rules of positive law plays a role in the law of a State, that is, every rule has a rationale for their existence, so does the classification of goods.

There are various classifications of property which perform different functions, among which the application of certain rules of positive law of a State.

For example, some rules apply only to personal property, other rules apply only to property, and the same applies to other classifications of property.

That is, the classification of goods plays an important role in the law of a State, which goes beyond the study of civil law.

Another important feature is that to understand more fully the real rights regulated by the Civil Code of the State, ie, in the Peruvian law to study the classification of goods in greater detail to understand the real rights and personal rights regulated some by the Peruvian Civil Code 1984.

12. THE CLASSIFICATION OF PROPERTY IN COMPARATIVE LAW

There are several research methods which are applied to different areas of knowledge, among which the functionalist method, the exegetical method, the comparative method. However, these methods can be used not only separately, in this sense we can say that you can use the functionalist approach and the comparative method.

The exegetical method is well known and used in our setting, however, the comparative method is very underdeveloped in our country, which we now turn to in the present investigation.

15. The law and positive law are divided into two parts that are codified law and the law is not codified. It's called the law codified law or grouped together in a code, the rules together in the Civil Code, Criminal Code, Civil Procedure Code, Code of Criminal Procedure, Criminal Procedure Code, Environmental Code or Commercial Code and other codes.

The civil law exists in the right of all states that are part of the Germanic Roman family, in this sense, some States have no codified law.

Therefore it is necessary to specify that only some research is necessary to study civil law sometimes only need to study law is not codified. But other times it is necessary to study both sides of the law, ie, other opportunities requires the study of law codified and uncodified law.

16. The law and positive law are divided into two parts that are codified law and the law is not codified.

The right uncoded difference exists in civil law the right of all states, so we can say that the law is not unique coded states belonging to the Roman-Germanic family, but exists in all legal families , so we can say that the law is not unique coded states belonging to the Germanic Roman family.

Therefore it is necessary to specify that only some research is necessary to study civil law sometimes only need to study law is not codified. But in other cases it is necessary to study both sides of the law, ie, in other cases it is necessary to study law codified and uncodified law.

The division of law in public law and private law existed in Roman law, ie in Roman law and the law is divided into public law and private law.

A Roman aphorism states as follows Sub latet protection juris jus advertising privatum which means the following under the tutelage of public law is latent private law. That is, in Roman law made no reference to the social right.

Public law can not be altered by individuals privatorum pactis publicum jus non potest Mutari.

Roman law in private law was the set of legal rules that protect and regulate the activity of individual ad quod est jus privatum utilitatem singulorum pertinet, and public law was the set of rules relating to the state, to religion, the priests and the judges in a special way est quod ad ius publicum rempublicam pertinet.

Many authors divide the right only two large branches which are public law and private law. That is, many authors studied this issue does not refer to the social right.