The Government wants to re-approve the housing decrees which Congress rejected last Friday. With the Cortes dissolved due to the electoral advance, its validation would correspond to the Permanent Deputationwhere the distribution of votes would allow one of the texts to be moved forward if the parties maintain their positions. This possibility has placed in the debate a legal expression that also appears in contracts, taxes and labor relations, the law fraud.
According to Moncloa sources cited by Europa Pressthe Executive plans to take the measures to the Council of Ministers this Tuesday, although it has not yet specified whether they will retain the same wording. This detail is important when analyzing an operation that has received criticism from the opposition, but whose legal qualification cannot be considered resolved.
What does it mean to commit legal fraud?
He law fraud It consists of using a rule as protection to achieve a result that the legal system prohibits or considers contrary to its rules. The action presents an appearance of legality because it is based on a current provision, but serves to avoid another that should be applied.
Its general regulation is in the article 6.4 of the Civil Code. This establishes that acts carried out in this way do not prevent the application of the rule that has been attempted to be avoided.
To understand it you have to identify two elements. On the one hand, the coverage standardwhich is invoked to justify the action. On the other hand, the evaded rulewhose obligations or prohibitions are intended to be avoided. It is not enough for a decision to be controversial or favor the person who makes it.
Choosing a more favorable option is not always fraud
The laws allow you to choose between different alternatives. Using the one that is most convenient does not automatically constitute a violation of the law. The problem appears when this route is used to obtain a result contrary to the order.
Therefore, to support an accusation of this type, it is necessary to explain which rule is used, which one is trying to avoid and what effect is achieved. A suspicion or a disagreement about the interpretation of a law does not replace that analysis.
The concept is not limited to politics either. It can arise in civil, labor, tax or administrative operations. The consequences depend on the applicable rules and the circumstances of each case.
Why are housing decrees discussed?
The Constitution allows the Permanent Deputation to assume the functions provided for the decree laws when Congress is dissolved. Therefore, going to this body to validate a norm during that period has constitutional coverage.
The controversy centers on another issue. It is being discussed whether re-approving measures rejected by the Plenary, to submit them to a body with a different balance of votes, would mean circumventing that parliamentary decision.
Santiago Abascal He described this possibility as “manifest illegality” in an interview in Espejo Público collected by Europa Press. This is the assessment of the Vox leader, not a judicial declaration of illegality.
To examine the specific action, it will be necessary to know the texts that are approved and their justification. The decree laws must respond to a extraordinary and urgent need and respect the constitutional limits, regardless of the majority available to validate them.
Is law fraud a crime?
Does not in itself amount to a crime. The Constitutional Court distinguished both notions in its ruling 120/2005 and warned that the figure of legal fraud cannot be used to extend crimes to conduct that is not provided for in them.
For criminal liability to exist, the requirements of a specific crime must be met. Likewise, an administrative sanction needs its own legal basis. The word “fraud” does not allow any of these consequences to be taken for granted.
What happens if it is accredited
The effect of the Civil Code is that the rule that had been attempted to be evaded is applied. The formal coverage used does not serve to avoid the corresponding obligations.
The possible invalidity of an act, the amounts that must be paid or any other consequence will depend on the matter and the applicable regulation. In the case of housing decrees, the legal examination must be carried out on what the Government finally approves, not only on the announcement that it intends to put them back to a vote.