Does nulidad de pleno derecho cause effects ex tunc? spain Does nulidad de pleno derecho1, 2 cause effects ex tunc? 1: I don’t know the translation. 2: See also art. 6 of Real Decreto de 24 de julio de 1889 por el que se publica el C&oacute;digo Civil and art. 47 of Ley 39/2015 de 1 de octubre del Procedimiento Administrativo Com&uacute;n de las Administraciones P&uacute;blicas.
The literal translation of nulidad de pleno derecho is &quot;null act of full right&quot; or more ideomatically &quot;fully null&quot; but the phrase of equivalent meaning in English language legal terminology is void ab initio, literally &quot;invalid from the beginning&quot;. This is an act that, because it was particularly seriously defective, should not produce any effect and, if it does, can be annulled at any time without the correction of the defect or the passage of time being opposed. ex tunc means in a legal context, &quot;from the beginning, from the outset. Used to describe certain legal effects that can affect situations prior to this point in time and therefore can affect past actions.&quot; It is more commonly used in canon law, Italian law and the law of other countries that speak Romance languages, than in the English speaking world. You are correct that something that is nulidad de pleno derecho does cause effects ex tunc. The phase ex tunc is rarely used in English terminology although the related term, nunc pro tunc which means having retroactive effect to some relevant date (often the date of the filing of a motion) is commonly used in cases where something is given effect retroactively, but not where something is invalidated retroactively, in which case the term void ab initio is used in English jurisprudence instead. If an action is nulidad de pleno derecho then any legal effect it was given is treated as though it never happened and the remedy of restitution is often available to undo changes in position that occurred as a result of a void act. Some of the common situations where this might come up are (1) an annulment of a marriage of someone who was not eligible to marry (for example, due to an existing marriage or lack of age to marry or mental incapacity) as opposed to a divorce, (2) a determination that a court order or actions are void because the court lacked subject matter jurisdiction to consider the matters before it, or (3) a determination that a deed to property and subsequent deeds in the chain of title derived from it are void because there was some serious defect in the original deed (e.g. it was a &quot;wild deed&quot; purporting to transfer say, the Brooklyn Bridge from someone who never owned it in the first place).
So, as I understand the decision, it's a little more subtle than that. By default, states have sovereign immunity and can't be sued without their consent. Congress can remove ("abrogate") this immunity by law in some circumstances. They tried to do so for copyright infringement cases with the Copyright Remedy Clarification Act of 1990. However, in the present case of Allen v. Cooper, the Supreme Court held that this part of the CRCA is unconstitutional. The idea is that under the Fourteenth Amendment, Congress can abrogate state immunity when it's necessary to ensure people's right to due process, but only in a "congruent and proportional" way. Now if a state unintentionally or negligently infringes someone's copyright, that does not violate the person's right to due process, but an intentional infringement might. At the time the CRCA was passed, when Congress went looking for instances where states infringed on copyrights, they found several cases of unintentional or negligent infringement, and just a couple where they may have infringed intentionally. SCOTUS argued that to respond to this by completely abrogating state immunity in all copyright cases was disproportionate, and therefore unconstitutional. But the Court suggests in the opinion that Congress could pass a different law to abrogate immunity in copyright cases, if it were narrower. For instance, a law that only stripped immunity in cases of intentional infringement would likely be constitutional, especially if there were evidence that intentional infringement was happening enough to be a significant problem. So I think the answer is that as of right now, a state could deliberately infringe someone's copyright (e.g. by pirating software) and be immune from suit. However, Congress has the power to "fix" this, and most likely will, especially if there seems to be egregious abuse. (By the way, the decision contains an impressive quantity of pirate jokes. I guess since it's not only about copyright infringement (aka "piracy"), but actually alleges infringement of a video about a sunken pirate ship, the justices just couldn't resist.) Your "eminent domain" idea is separate from this. Seizing copies of the software wouldn't give the state the right to use them, as the software itself would still be copyrighted. The state would have to seize the copyright, and I don't know whether that is possible - it's not necessarily property in that sense. But if they did so, then they wouldn't be infringing the copyright at all (since the state itself would now own the copyright) and this case would be irrelevant. On the other hand, when a state uses eminent domain to seize property, they must as you say pay fair market value for it, and that means the market value before they seized it. So the value of the copyright in such a case wouldn't be "nothing" - it would be more like the amount a competitor would have had to pay the software maker to buy all the rights to that product. Likewise, if the state seizes your lovely house and bulldozes it to build a toxic waste dump, they owe you what someone would have paid for the house, not the value of a dump that nobody wants.
The point of directives is that they concern areas of law where the EU does not legislate directly. They create a requirement that member states must achieve through their own legislation. In the EU's own words A "directive" is a legislative act that sets out a goal that all EU countries must achieve. Were a directive to be repealed, it would remove a constraint on national law. That would not automatically lead to a repeal of national law. Of course, national law itself could have a provision effecting the automatic repeal, but that might be problematic because most repeals seem actually to be modifications or recodifications, where national legislatures might be better off amending their transposing legislation rather than replacing it.
No For the same reason that requiring a licence to drive might, in some circumstances, result in harm to a person who cannot drive because they don’t have a licence. The city (or any government) has legislative immunity for the laws they put in place even if those laws have negative consequences to some people. All laws have negative consequences to some people, for example, laws against theft are extremely prejudicial to thieves. Similarly, the executive is immune for exercising their discretion in the enforcement of the law. This is the basis of the police not having a general duty to protect. However, police have a specific duty to protect when they have taken an individual into their care and control.
This is a very straightforward point of constitutional law. Chapter and verse from the Constitution, art 224: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive.
The law that New York passed does not create any cause of action, it overrides existing rules regarding time-barring of civil claims, so the quick answer to the question &quot;does this law apply in that kind of case&quot; is &quot;that law is irrelevant&quot;. There is a general legal question about the jurisdictional limits of a court. For example, a foreign insurance company will be subject to specific personal jurisdiction in a US federal court over a claim under a cargo insurance policy for a shipment to the US. The case Daimler AG v. Bauman seems to be similar to the type of case you are asking about. This case involves the Dirty War of Argentina, and the question of whether Daimler's business connection to Mercedes-Benz Argentina gives plaintiffs standing to sue in US courts over actions in Argentina. SCOTUS held in that case that Daimler is not amenable to suit in California for injuries allegedly caused by conduct of MB Argentina that took place entirely outside the United States The court first notes that For a time, this Court held that a tribunal’s jurisdiction over persons was necessarily limited by the geographic bounds of the forum but this has been modified to recognition of two personal jurisdiction categories: One category, today called “specific jurisdiction”...[which] encompasses cases in which the suit 'arise[s] out of or relate[s] to the defendant’s contacts with the forum' [and] distinguished exercises of specific, case-based jurisdiction from a category today known as 'general jurisdiction,' exercisable when a foreign corporation’s 'continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.' The court observes that &quot;general jurisdiction has not been stretched beyond limits traditionally recognized&quot;. As I understand the hypothetical, the proposed wrong does not derive because of the defendant's connection with the jurisdiction, and the connection to New York (or any other state) would be that it might be forum convenient for the plaintiff to litigate in. This would fall under the category of &quot;general jurisdiction&quot; (assuming that New York is not the company's corporate home nor is it their primary place of business), and the state's courts would not normally have jurisdiction in that case (lacking any specific statute creating a cause of action and explicitly declaring extraterritorial jurisdiction). The underlying constitutional rationale is the Due Process consideration that a person (including a corporation) should not be be forced to defend themselves in courts in states where they have no real connection. The question that would be asked is whether the corporation had sufficient connection to the state that the state courts would have jurisdiction. We should also turn to three SCOTUS cases, Nestle v. Doe et al, RJR Nabisco, Inc. v. European Community and Kiobel v. Royal Dutch Petroleum Co., where questions of extraterritorial jurisdiction are considered. The Nestle court's analysis of the underlying principle starts by observing and citing from RJR Nabisco that First, we presume that a statute applies only domestically, and we ask &quot;whether the statute gives a clear, affirmative indication&quot; that rebuts this presumption. In Kiobel, the court states – reaching further back to Sosa v. Alvarez-Machain that [w]hen a statute gives no clear indication of an extraterritorial application, it has none, a principle which &quot;serves to protect against unintended clashes between our laws and those of other nations which could result in international discord) (EEOC v. Arabian American Oil Co). The relevant statute under which these suits were initiated is the Alien Tort Stature, 28 USC 1350, which allows an alien to sue in US courts under certain circumstances, and states only that &quot;The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States&quot;. ATS would clearly not be applicable to the case of a US person suing a foreign corporation, but the other cases have articulated a principle that transcends the specifics of the ATS – there would have to be a statute giving a state extraterritorial jurisdiction over the matter.
Close to zero, provided that §78 ZPO really applies in your case. You want to overturn established law and precedent on the grounds that it violates your notion of justice and civil or human rights. Such things happen, but doing so without professional representation is close to impossible. You have two realistic options -- get a lawyer for your initial case, or get a lawyer for your appeal as it works through the institutions (which is likely to fail).