Portuguese Legal System Research Articles

Medical Liability for Omission under the Portuguese Criminal Law: A Critical Eye on Portuguese Jurisprudence

In the Portuguese legal system, criminal liability for omission can be conducted by the legal category that criminalises omission in itself, regardless of the result, or operate by equating omission with action. This is enshrined in section 10 of the Penal Code, as long as the omitting person has a personal legal duty to act as guarantor (section 10, no. 2). In medical criminal liability, the framework for a hypothetical omission by an on-duty doctor in emergency services has been controversial. In our legal system, section 284 of the Penal Code expressly stipulates that a doctor’s refusal to administer care be punishable conduct. On the other hand, it is possible that the doctor on duty in the emergency room of a hospital has a personal legal duty to act as a guarantor, arising from the contract that binds him/her to the hospital. Thus, it is necessary to affirm a subsidiarity relation between the mechanism of equating omission with action resulting from section 10 of the Penal Code and incrimination under section 284 of the Penal Code. However, this has not been the major understanding of the jurisprudence of the Portuguese courts on this subject. For instance, when the refusal of assistance by a doctor causes the death of a patient, instead of convicting the doctor for homicide by omission (section 131 of the Portuguese Penal Code, ex vi section 10, numbers 1 and 2), courts are convicting as per section 284 – refusal of the medical doctor to provide medical assistance. The present work aims to critically present this jurisprudence, state the legal and doctrinal foundations that justify the inclusion of these hypotheses within the scope of crimes committed by omission and point out the practical importance of choosing this solution. Keywords: Omission; Committed by omission; Medical liability; Duty to act as guarantor.

The exchange contract in the Portuguese legal system and comparative law

Despite the exchange contract being one of the oldest contracts, it is not currently regulated in the Portuguese Civil Code, as it is understood that it belongs to a primitive state of the economy. The Portuguese legislator intended to make the purchase and sale contract the prototype of other onerous agreements according to article 939.º of the Civil Code. However, this will raise problems for us between the frontier of buying and selling and that of exchange, for which our law does not give us direct answers.We found that other legal systems, such as the Spanish, French, Italian, or Ibero-American codes, consecrate in their Civil Codes, in a brief way, the exchange contract.

Democratic governance and modernity in 21st century co-operatives in Portugal: Frontiers and balances

The legal framework applying to cooperatives is not harmonised in the European Union. Diverging from other legal systems, the Portuguese legal system made the co-operative principles part of the Portuguese Constitution, giving them a mandatory nature, protecting the co-operative identity.As evidenced in the PECOL project, demutualisation, digital transition, diversity, the professionalisation of management, transparency, prevention of conflicts of interest and accountability, investor members and plural voting are the main challenges addressing the principle of democratic member control in the 21st century. The article concludes that these challenges must be addressed in the framework of the principle of democratic management of members. Plural voting can be a response to the heterogeneity of members and that the admission of investor members can contribute both to the professionalisation of co-operative management and co-operatives' sustainability. Portuguese regulation preserves the essential core of the principle of democratic member control.The article's main contribution is to disseminate internationally a legislative experience of hard law regarding the nature of the co-operative principles. It conveys the message that this political-legislative option has not slowed down the adaptation of co-operatives to new challenges.

Directive (EU) 2022/2523 related to the establishment of a global minimum level of taxation for multinational groups and its alignment with the principle of ability to pay in the Portuguese legal system

A atual crise fiscal dos Estados se depara com a obrigação de custear crescentes despesas relacionadas ao bem-estar social, impondo uma agenda global de busca por novas fontes de arrecadação fiscal. Dentre os elementos para seu incremento, encontram-se os fenômenos econômicos da nova economia, em especial, decorrentes do encurtamento da distância entre os produtores e consumidores de bens e serviços digitais ou parcialmente digitalizados. A pesquisa em referência busca analisar criticamente a Diretiva (UE) 2022/2523 relativa à fixação de um nível mínimo mundial de tributação para os grupos multinacionais, sob uma perspetiva de suas aproximações e distanciamentos ao Princípio da Capacidade Contributiva.

O regime jurídico do financiamento das startups

Because of their characteristics, startups are generally unable to access traditional forms of funding, such as bank loans. However, the global digital and technological revolution of recent years has enabled other forms of funding to emerge, offering alternatives to bank loans. These have allowed startups to fund themselves and so develop their business. This paper sets out to look at the alternative, technology-driven forms of finance used by startups and how these funding arrangements are regulated in the Portuguese legal system and in the European Union.

Programas de compliance e branqueamento de capitais: implicações da lei n º 83/2017, de 31 de agosto, no regime jurídico de Portugal

The objective of this paper is to analyze the effects of Law no. 83/2017, of August 31, in the Portuguese legal system of money laundering, specifically with regard to its possible impact on compliance programs of companies operating in the so-called "risk sectors". The aim  is therefore to clarify at the end of the investigation whether there would be a duty, even if sectoral, to implement compliance programs for certain legal entities in Portugal and, if so, what would be the provisions relating to their content, structuring and minimum requirements to be considered effective. 

A NEW APPROACH TO “THE HOMESTEAD EXEMPTION ACT”- AN ENCOURAGEMENT TO RE-ESTABLISH THE “CASAL DE FAMÍLIA” IN PORTUGUESE LAW

Housing is a fundamental right enshrined in the Constitution. As a structural element of family organisation, the family residence becomes a necessary instrument for achieving the minimum values ​​of human dignity in its family dimension. The Portuguese legal system that constitutionally enshrines the inviolability of the human person's dignity, the protection of the family and the right to housing, attributes a vulnerability to the family residence, allowing it to be seized, with very few exceptions. The "casal de família" institute, which finds its place in the North American Homestead, can recommend a feasible and possible solution to protect the family residence. Under Portuguese law, this institute was in force between 1920 and 1977, assuming the terminology of "casal de família". We will analyse the legal regime of Homestead and the modus operandi of the "casal de família" in Portugal. We wonder whether the Portuguese legal system should again consider the existence of "family property" or "family couple". We believe that such a concept would encourage the family, strengthen its values, strengthen its ties, and solve a pressing social problem, not resolved by the Portuguese law n ° 13/2016, of May 23.

Da (in)validade do AO'90 no Ordenamento Jurídico Português

This reflection aims to clarify the orthographic rule legally in use in the Portuguese legal system. Such exercise comes from the serious uncertainty currently existing in national society around the orthographic rule actually in use due to the adoption, by the Government and, at the same time, by the generality of the bodies inserted in the Public Administration, of the spelling rules arising from the Orthographic Agreement of the Portuguese Language, signed in Lisbon, in 1990.

As soluções traçadas no Ordenamento Jurídico Português para o problema do lucro da intervenção

A problemática que envolve a aquisição de lucros a partir da intervenção nos direitos subjetivos alheios vem recebendo, nos últimos anos, especial atenção da doutrina nacional. Assim, visando de contribuir com possíveis soluções para o ordenamento jurídico brasileiro, objetiva-se, no presente artigo, retratar outra realidade jurídica, o ordenamento jurídico português, que há quase quatro décadas vem debatendo a problemática. Para tanto,utiliza-se do método dedutivo com consulta de fontes bibliográficas primárias e secundárias. Conclui-se, ao final, que o lucro da intervenção é reconhecido pela doutrina como um produto do enriquecimento sem causa em Portugal, mas existe divergência doutrinária sobre a possibilidade de sua restituição, e o legislador no âmbito dos direitos imateriais o inseriu como hipótese no cálculo das indenizações.

A era digital na Antropologia Forense

Introdução: a produção de dados 3D tem-se revelado uma ferramenta útil na investigação e aplicação nas Ciências Forenses, contudo os avanços tecnológicos nem sempre são acompanhados pela legislação e comités de ética. Objectivo: aprofundar o tema do ponto de vista da Antropologia Forense. Metodologia: revisão bibliográfica sumária e consulta ao sistema jurídico português. Resultados: observa-se um vazio legislativo e uma ausência de normas éticas sobre a produção de dados 3D. Conclusão: é essencial que a revolução tecnológica seja acompanhada por um sistema jurídico adequado e comissões de ética estruturadas para uma evolução sustentável da Ciência.

EUROPEAN INVESTIGATION ORDER «DIRECTIVE – APPLICABILITY»

The relevance of the study: Aims proceed with the survey of issues related to validity of evidence in the context of the new evidence-taking instrument in the EU, the Directive 2014/41 / EU on the European Investigation Order in criminal matters and its transposition into the Portuguese legal system, resulting from Law no. 88/2017, of August 21. The problem of the research For this purpose, we approach the concept of proof, the principles, theories and rules governing the taking of evidence in a transnational context, we indicate which instruments and norms are relevant in the matter, we analyze the Directive and national legislation from the perspective of the theme and we conclude with relevant ECHR and national jurisprudence. In any case, the Member States and their enforcers will have a decisive role, since the admissibility and validity of the evidence in the EIO continues to be a main task of these, seeking the desirable construction of a system of checks and balances, that is, based on the necessary balance between the power of investigation or prosecution and the rights of the defense.The object of the research- validity of evidence in the context of the new evidence-taking instrument in the EU, the Directive 2014/41 / EU on the European Investigation Order in criminal matters.The aim of the research to survey of issues related to validity of evidence in the context of the new evidence-taking instrument in the EU, the Directive 2014/41 / EU on the European Investigation Order in criminal mattersMethods - analysis and synthesis, abstraction, logical and historical, comparative analysis.Results.From 22 May 2017, the collection of evidence in the European Union (EU) will be regulated by the European Investigation Order.This is a new diploma based on mutual recognition and replacing the corresponding measures provided for in the abovementioned conventions.It will be applicable in the EU countries, but Denmark and Ireland chose not to participate.Following the adoption of this directive, other diplomas were revoked, for example, the Framework Decision European Evidence Warrant from 2008 (which had a narrower scope of application) was replaced by Regulation 2016/95 of 20 January 2016.Conclusion. The EIO Directive and its transposition into Portugal with Law No. 88/2017, of 21 August, constitutes a major advance in judicial cooperation in criminal matters, as there is now only one legal instrument for obtaining evidence in the EU thus achieving, and this being its main objective, overcome the slowness and inefficiency of the system based on the issuance of rogatory letters transmitted in accordance with international conventions, as well as with the inefficient European warrant for obtaining evidence. Outside the EU, the multilateral and bilateral international treaties to which the Portuguese State is bound continue to prevail.The Court of Justice of EU, in reference for a preliminary ruling, will (as has recently happened in the area of judicial cooperation in criminal matters) have a fundamental role to play in the interpretation of the EIO and national laws and particularly the transpositions, in the context of a preliminary ruling.

O direito de oposição nos municípios portugueses

The Portuguese legal system establishes in its constitution and through a dedicated ordinary law, the right of opposition (Law 24/98, of May 26). The application of this regime, in particular to local politics where the tensions between Government and Opposition are felt more acutely, has not received sufficient attention both in normative and empirical terms. 20 years after its adoption, this article seeks to analyse, longitudinally, the solutions established in this legal regime and to propose a set of changes to the current Law.

Debt Litigation and the Performance of Law Courts in Eighteenth-Century Portugal

Theoretically, the extent to which the eighteenth-century Portuguese legal system was able to enforce loan contracts should be evident from the duration of the court proceedings and the execution of the collateral that secured the loans. Yet, data from a newly assembled data set that includes the contracts established by the Lisbon Misericórdia—the major lay brotherhood in Portugal and a leading creditor in the city—as well as 990 lawsuits from its private court of law (exclusive jurisdiction) have a different story to tell about the complex mechanisms behind the lending activities of the institution. Notwithstanding the reasonably rapid resolution of its cases and its routinely successful execution of collateral, the Misericórdia’s law court was powerless to solve the problem of default or to safeguard lenders’ property rights. The membership of creditors and debtors in the Misericórdia tended to undermine cooperation rather than enhance it, challenging the assumption that cohesive groups hold high levels of social capital.

Empresas sociais e sociedades comerciais: ¿realidades convergentes ou divergentes?

El presente artículo trata la relación entre las sociedades comerciales y las empresas sociales. En primer lugar,identifica y analiza las iniciativas adoptadas por las instituciones de la Unión Europea en materia de empresassociales. Luego, aborda las soluciones legislativas acogidas por varios Estados-miembros. Por último, examina el ordenamiento jurídico portugués. A pesar de que la Unión Europea cuenta con varias iniciativas dirigidasa las empresas sociales, este es un tema no armonizado. En este contexto, varios Estados-miembros incorporaron legislación específica sobre empresas sociales en sus ordenamientos, pero los modelos de legislaciónson distintos, así como la regulación jurídica adoptada. De las varias iniciativas de la Unión Europea sobreempresas sociales, es posible concluir tres aspectos: las sociedades, al cumplir ciertos requisitos, puedenser consideradas empresas sociales; el ordenamiento jurídico portugués no regula las empresas sociales deforma expresa ni genérica; y la creación de figuras híbridas destinadas a acomodar las particularidades de lasempresas sociales depende de la intervención del legislador portugués.

The transposition of the Private Enforcement Directive: a critical perspective

This article analyses the proposal of transposition of the Private Enforcement Directive into the Portuguese legal system. It examines several aspects of the preliminary draft, which went through public discussion, but it highlights, specially, the articles about definitions, liability, means of proof and the potential impacts it could have on the organisation of the Portuguese judicial system. It criticises the incoherencies and points out some problematic aspects of the proposal and the necessary amendments that should be made to make the law stronger.

The Means of Obtaining Evidence Provided by the Portuguese Cybercrime Law (Law no. 109/2009 of 15 September 2009)

The Portuguese legislator has provided, for the first time, in the Portuguese legal system, means of obtaining evidence specific for Cybercrime in Law no. 109/2009, of September 15, in which Framework Decision no. 2005/222/JHA, of the Council of February 24, concerning attacks against information systems and the Convention on Cybercrime of the Council of Europe were transposed to the Portuguese legal system. While the legislator’s options are considered to be mostly correct, there are some critical issues. In the present Article, the legal regime of these means of obtaining of evidence is critically analyzed.

The influence of maritime spatial planning on the development of marine renewable energies in Portugal and Spain: Legal challenges and opportunities

The objective of this study is to analyse, from a legal point of view, the influence of the transposition of Marine Spatial Planning Directive into both Spanish and Portuguese domestic laws on the development of marine renewable energies in both countries. This article concludes that the Portuguese legal system is more favourable for the development of marine renewable energies than the Spanish legal regime, since the former establishes a more flexible planning system, sets criteria for the prioritisation of marine uses, incorporates trade-off mechanisms, introduces an electronic single-window system and regulates a pilot zone. These measures can help streamline licensing processes, avoid and resolve conflicts with other sea users, and adapt planning instruments to the rapid development of new marine renewable technologies. However, both legal regimes lack specific legal mechanisms aimed at offering effective protection of the marine environment against negative effects arising from the installation of such devices. Similarly, there is a lack of coordination between maritime spatial planning instruments and land planning instruments, and between the Central Government and the autonomous regions. This may hinder the installation of marine renewable energies. This study has implications in relation to the EU integrated marine policy aimed at achieving a balance between blue growth and the conservation of the marine environment, as well as an inter-administrative coordination improvement in decision-making.

Demolir ou reparar: das normas jurídicas portuguesas para edifícios em ruína (séculos XV a XIX)

Este artigo aborda as normas jurídicas estabelecidas pelos poderes públicos portugueses para acautelar o perigo iminente provocado por edifícios em ruína entre o fim da Idade Média e o Liberalismo Clássico. São utilizados dois tipos de fontes documentais: para os períodos mais recuados a pesquisa assenta nas práticas jurídicas inseridas nas atas das câmaras dos concelhos; para os períodos mais recentes usam-se as normas jurídicas fixadas nas posturas municipais, enquadradas pela legislação geral do reino. O exame às normas jurídicas permite perceber que as câmaras municipais sempre aplicaram a mesma regra preventiva: a obrigatoriedade dos edifícios em ruina serem demolidos ou reparados. Por isso, estas normas constituem um singular e expressivo caso de persistência dentro do ordenamento jurídico português relacionado com a construção.

Medical malpractice – an overview of the main traits of the Portuguese legal system

This article offers an overview of the Portuguese legal framework applicable to compensation claims arising from medical activity. The grounds for civil liability concerning medical malpractice cases will be examined, and consequently the conditions will be analyzed that must be met in order to consider that a physician should be held liable for the damage caused to a patient. Special attention will be drawn to the contract to provide medical care and to the differences between contractual liability and noncontractual liability regimes. Finally, the scope and the way to define the quantum of the compensation claim will be regarded.

The neo-criminalization of stalking in the Portuguese legal system

Despite the theme stalking was only being given attention in the final decades of the 20th century, the truth is that this phenomenon has always existed. It consists in a series of persistent harassment behaviour of which one person is the victim of another, there may exist or have existed a relationship between them or they may be unknown to each other. This behaviour may be of the most varied nature and, frequently, if seen in an isolated form, may appear to be simple acts of courtship and demonstrations of affection, which are not taken very seriously by society.One of the first countries that criminalized stalking was the United States of America, more specifically the State of California, in 1990. Several European countries also included stalking in their legal systems, making it independent of other crimes, especially the crime of domestic violence. In Portugal, this behaviour was criminalized in 2015, described in article 154-A of the Criminal Code, under the heading persecution.The aim of this work is to make a juridical analysis of the article 154-A of the Portuguese Criminal Code, to understand if there was truly the need to create a new type of crime for the behaviour of stalking, or if other previously typified legal measures would have been sufficient to protect the victims' interests. This study is also intended to indicate alternative forms of punishment for this phenomenon under the Portuguese jurisdiction.