Descosificación de los animales en el Cc. español

Marita Giménez-Candela

doi:10.5565/rev/da.361

Abstract

The legal status of animals in the Spanish Civil Code is currently the subject to a process undertaken by the competent legislative bodies, aimed at changing their consideration to “living beings endowed with sensibility”, instead of as things, which is more common. This reform also includes corresponding changes in the Mortgage Law and in the Civil Procedure Rules. This piece analyses the antecedents, context and reasoning behind this reform within the general context of the de-objectification of animals, as well as some of the principles that will facilitate an understanding of the outcomes of this reform.

Highlights

As I have already covered on previous occasions[1], the movement to de-objectify animals is a reality that has begun with the Civil Code in most countries
This proposal urged the Government to: 1.- “Promote the legal reforms necessary for creating a special category in the Civil Code referring to animals, different from those planned, where they are defined as sentient beings endowed with sensibility” 2.- “Plan the necessary legal reforms to ensure that companion animals cannot be considered as seizable objects in any legal procedure”
In this sense the first and foremost reflection that it offers – as a question that frames the corresponding adaptation of the Civil Code article that has been proposed – deals with the need to modify the relevant aspects of the Civil Codes relating to the property and possession of animals, and of considering, in its totality, the proposal approved in Parliament that refers to “the creation of a special category in the Civil Code different from those planned, where they are defined as living beings endowed with sensibility”,4 which is

Summary

I.- INTRODUCTION

As I have already covered on previous occasions[1], the movement to de-objectify animals is a reality that has begun with the Civil Code in most countries. The object of the proposal sent to the Government by the Parliament, which was conducted in the Legal Proposal for the Modification of the Civil Code, the Mortgage Law and the Civil Procedure Rules,[21] is the creation of a legal regime unique to animals that clearly separates and distinguishes them from the consideration of things, and establishes a differentiated category between inert things and human beings, as holders of subjective rights, integrally protected by the legal system This differentiated category can be none other than that of animals - a category a se or a category sui generis.[22] In other terms, these reflections, along the lines of the legal proposal approved by Parliament, stand first and foremost for the creation of a category proper to animals whereby the traditional, roman, bipartite classification of persons and things, with which I have dealt on many occasions,[23] would become a tri-partition, much more coherent with societal changes, the law and European legislation, in relation to the consideration of animals as beings that cannot continue to be entrenched by the legal status of things that these days does not correspond adequately. KELCH, T., A Short History of (Mostly) Western Animal Law: Part I, in Animal Law (2012) 24ss.; KELCH, T., A Short History Of (Mostly) Western Animal Law: Part II, in Animal Law (2013) 348ss.; ALONSO GARCIA, E. y RECARTE VICENTE-ARCHE, La diversidad de fundamentos de las distintas normas que constituyen el Derecho Animal (I), in JAL&IAWS 0 (2017) 17ss. 25 Complete reference to the related sources is given in GIMÉNEZ-CANDELA, T., Derecho Privado Romano (Valencia reprint. 2011) and in previously cited works, Vid. supra: n. 1, 2, 7, 22. 26GIMÉNEZ-CANDELA, T., El régimen pretorio subsidiario de la acción noxal (Pamplona 1981)

THE DE-OBJECTIFICATION OF ANIMALS IN THE EUROPEAN CIVIL CODES

III.1. Coherence with European legislation

III.2. Coherency with the changes made by other countries

CONCLUSION

Procedure