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Law 1/2009, Of 25 March, Reform Of The Law Of June 8, 1957, On The Civil Registry, In The Field Of Disabilities, Charges Guardians And Administrators Of Protected Heritage, And The Law 41/2003, 18 November, On Protection P...

Original Language Title: Ley 1/2009, de 25 de marzo, de reforma de la Ley de 8 de junio de 1957, sobre el Registro Civil, en materia de incapacitaciones, cargos tutelares y administradores de patrimonios protegidos, y de la Ley 41/2003, de 18 de noviembre, sobre protección p...

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TEXT

JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following Law.

PREAMBLE

So far, the sentences of modification of the capacity to act and the constitution of tutoring and representation bodies are facts that must be registered in the Civil Registry. The Civil Registry is a legal register whose purpose is to establish and publicise the facts and legal acts relating to the civil status of persons. Although the registration in the Civil Registry has a declarative and non-constitutive character, its usefulness is evident as it deploys important effects, consisting of the articulation of a means of proof of the quick and simple civil state and constitutes Title of the exercise of the rights resulting from each individual condition or marital status of the person in the form reflecting the Register's own seats (Articles 327 of the Civil Code and 2 of the Law of 8 June 1957, on the Civil Registry).

However, it should be noted that the Civil Registry organization itself makes it difficult to obtain general data on the number and extent of the incapacitations that take place in our country, since it is very difficult to obtain information on the persons in whom a judgment of modification of the capacity to act, with the consequent submission to guardianship or curatela, is not known, if the identity of the same is not known. In addition, the territorial principle of territoriality governing the Civil Registry causes the dispersion of the seats. There may be information regarding the same individual in different Municipal Civil Records. Therefore, at present, broad sectors involved in the promotion and protection of the rights of people with disabilities demand the introduction of the necessary legal reforms so that the Civil Registry can act in this area. as a reliable advertising mechanism to monitor the effective application of the rules on the judicial intraining of persons who cannot govern themselves, as well as to facilitate the effective implementation of the figure of the protected heritage as a mechanism for the protection of people with disability.

In addition to the foregoing, the amendment that is carried out under Law 41/2003, of 18 November, of protection of the assets of persons with disabilities and of modification of the Civil Code, of the Law of Civil Procedure and of the Tax rules, it comes to solve certain doubts generated by the application of the same. Among them, it highlights the improvement of the communication of the constitution of the protected patrimony to the Ministry of Public Prosecutor for the purposes of control that are pursued; the determination of the domicile in function of which the competence of the Ministry is fixed Fiscal, which should not be the granting of public deed, but that of the domicile of the disabled. There is also room for telematic communications in this area. Finally, it highlights the legal clarification of the concept of the act of provision of certain integrated assets in protected assets, taking into account the disparity of criteria identified in practice.

On the other hand, and in order to carry out an in-depth review of the current tax regulation of protected assets, the Government is urged to, within six months of the date of entry into force of this Regulation. Law, present a Bill to improve the tax treatment of these heritage institutions.

In order to achieve these objectives and to save those and other obstacles arising from the current regulation on this point of the legislation on Civil Registry and the protected heritage of persons with disabilities, the This Law, which is issued under Article 149.1.8. of the Constitution.

Article first. Amendment of the Law of 8 June 1957 on the Civil Registry.

Articles 18, 38 and 39 of the Law of 8 June 1957 on the Civil Registry, to which Articles 46a and 46b are added, are amended.

One. Article 18 is worded as follows:

" In the Central Register, the facts shall be entered for the registration of which no other Register is competent and those who cannot register for exceptional circumstances of war or any other than prevent the operation of the corresponding Registry.

The books formed by the duplicates of the consular inscriptions and the birth inscriptions practiced in the Municipal Records of the address in accordance with the provisions of the Central Register shall also be carried in the Central Register. in Article 16 (5).

The death of persons of foreign nationality in the service of the Armed Forces and the Spanish Security Forces shall also be entered in the Central Civil Registry, provided that such death is occurred during a mission or operation outside Spain and that the registration system of the State where the event occurred did not practice the relevant registration, without prejudice to the transfer of the registration made to the State Registry of which The deceased person is a national.

Also, books formed with the duplicates of the inscriptions on judicial modifications of the ability to act, constitution and modification of tutelary charges, extension or modification will be carried in the Central Register rehabilitation of the fatherland, judicial measures on the holding or administration of suspected or minor persons who are not subject to parental rights, supervision or control of such charges, and the establishment of protected assets and designation and modification of protected wealth managers practiced in the different Registers Municipal, under the name of "Book of Incapacitations, tutelary charges and administrators of Protected Heritage". "

Two. Article 38 is worded as follows:

" At the request of the Prosecutor's Office or any interested party, it will be noted, with value simply informative and with expression of its circumstances:

1. ° The filed judicial or governmental procedure that may affect the content of the Registry, including claims relating to capacity modification procedures.

2. The fact whose registration cannot be extended by not being at one of its legally accredited ends.

3. The fact concerning Spaniards or occurred in Spain that affects the civil state according to the foreign law.

4. The foreign judgment or resolution that also affects the civil state, as long as the exequatur is not obtained.

5. The canonical judgment or resolution which has not yet been enacted by the Court of Justice for civil purposes.

6. The existence of a fact-keeper and the judicial control and surveillance measures taken in respect of the child or the presumed incapable.

7. ° And those other facts whose annotation permits the Law or the Regulation.

In no case will the annotations constitute the test that the enrollment provides. "

Three. Article 39 is worded as follows:

" In the margin of birth registration, reference to marriage, guardianship, representation and death of the born person shall be made. These inscriptions shall include, in turn, reference to the birth certificate. The same reference notes shall be recorded in respect of the entries in Section IV referred to in Article 46a of this Law. "

Four. A new Article 46a is added with the following wording:

" The Municipal Civil Records officers will extend the marginal entries of Section I on judicial capacity modifications, as well as Section IV inscriptions on, in duplicate. the constitution and modification of the tutelary bodies, extension or rehabilitation of the parental authority, judicial measures concerning the keeping or administration of suspected or minor persons who are not subject to parental rights, supervision or control of such charges, public self-protection documents, and those for the establishment of protected and designated assets and modification of protected wealth managers, one of whose copies will be referred to the Central Civil Registry for extension in the "Book of Incapacitations, tutelary charges and administrators of Protected Heritage".

The entries referred to in the preceding paragraph shall be carried out on the basis of a communication referred to the Court, together with sufficient evidence of the decision, by the competent Judge, in accordance with the provisions laid down by the Court of Justice. the Law of Civil Procedure, either by means of testimony of the constitution of the protected patrimony or of the designation and modification of the administrators of protected assets that the judge or the notary authoritaire will have to send within the maximum period of three days of the Charge of the competent Civil Registry, which shall be, in respect of the inscriptions to be carried out in Section IV, that of the domicile of the incapacitated or the beneficiary of the protected heritage. '

Five. A new Article 46b is added with the following wording:

" In any case, the notary authoritaire shall notify the Civil Registry where the birth of the power shall be recorded in the terms of the terms of reference or of any other legal relationship or situation resulting from the attribution of proxy for any person in the case of the inability of the power. "

Article 2. Amendment of Law 41/2003, of 18 November, of protection of the assets of persons with disabilities and of modification of the Civil Code, of the Law of Civil Procedure and of the Tax Law for this purpose.

Articles 3.3, 5.2, 7.3 and 8 of Law 41/2003, of 18 November, on the protection of the assets of persons with disabilities and amending the Civil Code, the Law on Civil Procedure and the Rules of Procedure are amended. Tax for this purpose.

One. A final paragraph is added to Article 3.3 with the following wording:

" Notaries shall immediately communicate the constitution and the content of a property protected by them authorized to the district attorney corresponding to the address of the person with disabilities, by means of signature advanced electronics. The same reference shall be made to the scriptures relating to contributions of all kinds, which are made after their constitution.

The prosecutor who receives the communication of the constitution of a protected estate and is not considered competent for its audit will send it to the prosecutor appointed by the Attorney General of the State, in accordance with his Staff Regulations. Organic. "

Two. A last paragraph is added to Article 5.2, with the following wording:

" In any case, and in line with the own purpose of the assets protected to satisfy the vital needs of their owners, with the same goods and rights in the integrated, as well as with their fruits, products and returns shall not be considered as acts of provision for the expenditure of money and the consumption of consumables integrated into the protected heritage, when they are done to meet the vital needs of the beneficiary. "

Three. Article 7.3 is amended to read as follows:

" 3. As an external organ of support, assistance and advice of the Fiscal Ministry in the exercise of the functions provided for in this article, the Commission for the Protection of the Heritage of Persons with Disabilities, attached to the Ministry of Education, is hereby established. Social Policy and Sport, and in which the Prosecutor's Office and representatives of the most representative public utility association in the state field of the different types of disability will participate.

The composition, functioning and functions of this Commission shall be determined by regulation. "

Four. New wording is given to Article 8, which is worded as follows:

" Article 8. Record recording.

1. The legal representation referred to in Article 5.7 of this Law shall be recorded in the Civil Registry, in the form determined by its Regulatory Law.

2. When the domain of a real property or real right on the property is integrated into a protected patrimony, this quality will be recorded in the inscription that is practiced in favor of the person with disability in the Registry of the Property in accordance with the provisions of the mortgage legislation. If the right or right has already been registered in favour of the disabled person, it shall be stated that the person is registered or incorporated into the protected estate by means of a marginal note.

The same record will be applied in the respective Registers in respect of the other goods that have the character of registrables. In the case of participations in investment funds or collective investment institutions, shares or units in commercial companies which are incorporated in a protected estate, it shall be notified by the notary authorising officer or by the judge to the the manager of the same or the society, its new quality.

3. Where a right or right ceases to be part of a protected heritage, it may be required for the person to be the owner of the property or to have a legitimate interest in the cancellation of the marginal notes or notes referred to in the previous paragraph.

4. The registration of the seats referred to in this precept must be carried out, in the terms that are regulated, with full respect for the rights of personal and family privacy and the regulations on protection of personal data. "

Single additional disposition. Legitimization of the Prosecutor's Office and guardians or guarders in fact to obtain information from public bodies in connection with the exercise of guardianship or in fact.

1. The Fiscal Ministry shall be entitled to request and obtain the legal and economic information of patrimonial and accounting relevance that is of interest in order to be able to substantiate its criterion in relation to the approval of the accounts the annual accounts and the general account of the administrative account of the administration which the guardian presents when the protection is extinguished, as well as in any other case where it is necessary or appropriate in order to permit compliance with the surveillance measures and control that has been judicially agreed with respect to the exercise of the guardianship or is in fact kept.

2. They shall be obliged to provide the information referred to in the preceding paragraph, subject to their respective procedural rules, the State Tax Administration Agency, the Federal Government of the Historical Territories of the The Autonomous Community of the Basque Country and the Community of Navarra, the public tax management centres or bodies of the Autonomous Communities, the Registers of Property and Mercantile, the Notaries and any other public body which by reason of its functions and competences it may have information of the patrimonial relevance or accounting to which this rule refers.

3. The natural or legal person, public or private, who exercises the tutelary function or, where appropriate, the keeper of fact, will be entitled to request and obtain from the public bodies the legal and economic information of patrimonial relevance and an accounting officer who is of interest for the performance of his/her duties.

Single transient arrangement. Referral to the Central Civil Registry of registrations prior to the entry into force of the Act.

Those in charge of the Municipal Civil Records will communicate to the Central Civil Registry for their extension in the "Book of Incapacitations, tutelary charges and administrators of Protected Heritage" in Article 46a of the Law of 8 June 1957, on the Civil Registry, practiced prior to the entry into force of this Law and which are determined by the Ministry of Justice, within the time limits and form to be noted in the Order Ministerial concerned.

Final disposition first. Reform of the regulatory legislation for procedures for the modification of the capacity to act.

The Government, within six months of the entry into force of this Law, will forward to the General Courts a Draft Law on the Reform of the Law on Judicial Incapacitation Procedures, which will be passed on to the Cortes. to be referred to as procedures for the modification of the capacity to act, for adaptation to the provisions of the International Convention on the Rights of Persons with Disabilities, adopted by the United Nations on 13 December 2006.

Final disposition second. Improvement of the tax regime for protected assets.

1. In order to promote the constitution and maintenance of protected assets in favor of persons with disabilities, the Government, within six months of the entry into force of this Law, will forward to the General Courts a Draft Law improvement of the tax treatment of these heritage institutions.

2. In the preparation of this Bill, the Government will seek the opinion and proposals of the Commission for the Protection of the Heritage of Persons with Disabilities and the National Disability Council.

Final disposition third. Modifications and regulatory developments.

Within six months, the Government will carry out the amendments and regulatory developments that are necessary for the implementation of this Law.

Final disposition fourth. Statistics of the Civil Registry.

The Government will approve within the maximum period of six months from the entry into force of this Law, a Royal Decree concerning the statistics of the Civil Registry, in order to regulate the most complete statistical treatment possible. of the data and information contained in the entries concerning judicial changes in the capacity to act, the constitution and modification of the tutelary charges, the extension and rehabilitation of the fatherland, judicial measures concerning the administration, supervision or control of such charges, public self-protection documents, and the establishment of protected assets, and the designation and modification of protected asset managers in the various Municipal Registers.

Final disposition fifth. Coordination of information on protected incapacitations and assets.

The Ministry of Justice will determine within the maximum period of six months from the entry into force of this Law the procedure and phases in which the exchange and coordination of the information relating to judicial decisions to modify the capacity and constitution of protected assets and to appoint their legal representatives between the Central Civil Registry and the Colegio de Registradores de la Propiedad y Mercantile de España, as well as the the form and time limits for the exchange of the information referred to between the said bodies and the General Council of the Notary.

Final disposition sixth. Competence title.

This Law is issued under the jurisdiction of the State in the field of the management of public records and instruments, in accordance with Article 149.1.8. of the Constitution.

Final disposition seventh. Entry into force.

This Law shall enter into force three months after its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this Law.

Madrid, 25 March 2009.

JOHN CARLOS R.

The President of the Government,

JOSE LUIS RODRIGUEZ ZAPATERO