Derecho Mercantil I (GED70300)

General information

Type:	OB	Curs:	2	Period:	S semester
ECTS Credits:	5 ECTS

Teaching Staff:

Group	Teacher	Department	Language
Ed: 1	Javier Fontcuberta Llanes	Derecho	ESP
Ed: 1	Miguel Trías Sagnier	Derecho	ESP

Group	Teacher	Department	Language
Ed: 2	Javier Fontcuberta Llanes	Derecho	ESP
Ed: 2	Miguel Trías Sagnier	Derecho	ESP

Workload distribution:

- Classroom-based activities: approximately 50% of total credits
- Guided activities: approximately 20% of credits
- Independent study: approximately 30% of the credits

The course is a component of the training on Private Law and the area of Business Law, specifically. The latter is understood as the law applicable to organisations and professional economic activity.

Beginning in the second year the course addresses three core concepts deemed compatible with students' still initial implementation of the other areas of legal knowledge: the definition of the place of Business law (concept and sources) within the legislation, the legal status of the company and its owner (the employer) - the discipline's central focus of attention - and, finally, the general regulatory framework for the market in which the companies operate (competition, unfair competition and advertising, as well as restrictions on competition through the granting of exclusive rights: trademarks, patents and copyright).

Through this contribution to the programme, the course provides a solid grounding to develop the knowledge that will be implemented in the third and fourth year courses through the study of the Laws and regulations governing companies, securities, contracts and bankruptcy.

The student should be capable of:
- Determining whether the applicable regulations to real scenarios is civil or mercantile as well being able to identify the corresponding legal source.
- When faced by the scenario of the sale of a company, establishing which procedure is the most appropriate to undertake the operation and which documents must be prepared.
- In a given real situation, prepare a report on the existence of a violation or not of the right to fair or disloyal competition, including publicity.
- Decide on the most appropriate registry to protect a new invention within the company to ensure its exclusive use.

21. To acquire values and ethic principles

1. Knowledge acquisition, comprehension and structuring

1. PART I. INTRODUCTION TOPIC 1. Historical development and concept. Commercial Law prior to its codification. What is referred to as the "subjective system" for the delimitation of commercial activity. The codification of Commercial Law in the 19th century. The laws with an objective orientation. The unifying currents in Civil and Commercial Law. Commercial Law as company law.The concept of Commercial Law in Spanish Law. Current trends. Commercial Law and Economic Law: public regulation of private activity. The constitutional framework of Commercial Law. Privatisation and regulation. TOPIC 2 Sources and jurisdiction The sources of Commercial Law: Article 2 of the Commerce Code. Special commercial laws. The uses of commerce. The common right as a secondary right. The exclusive competence of the State in the area of commercial legislation: Article 149.1 of the Constitution. Unifying trend of international commercial law. Particular consideration of European Law. Mercantile jurisdiction and arbitration.

2. PART II. COMPANY AND BUSINESS PERSON TOPIC 3. The company. Idea of the company Different theories regarding the legal nature of the company. Financial and organisational elements. The foundation of a company. The company as the object of legal business: general questions. The transmission of full rights. The transmission of limited rights. The company as an object of real guarantee. The dissolution of the company. TOPIC 4. The business person (I) The problematic concept of the merchant in the Commerce Code. Merchant and business person. Classes of business person. Sole proprietor, corporate proprietor. Capacity and limitations of the exerciser of the commercial activity. Minors and the disqualified. Bankrupts. Prohibitions and administrative restrictions. The foreign business person. The responsibility of the business person: general questions. The problem of the affectation of matrimonial property. The sole proprietor and limited responsibility. Precedents and justification. Directive 12 on EC Societies. Different forms of configuring. The Spanish solution. TOPIC 5. The business person (II) Accountancy as an obligation for the business person. Formal aspects: compulsory accounts books, account books as a means of evidence. Material aspects: keeping accounts and annual accounts, accountancy principles. Secret character of accountancy and publication of annual accounts; display and communication of accounts books. General accountancy plan. Public registry. Purpose, evolution and comparative right. Commercial Registry as individuals' registry. Public nature of the business person's obligation. Aim of inscription, procedure and formal publication. Published material. Principles of the Public Registry. Significance of inscription with regard to the inscribed data. Organisation of the Commercial Registry. Other functions of the Commercial Registry. TOPIC 6. The Business person (III) A business person's collaborators and employees. Concept and classes. Dependent collaborators with power of attorney: power of attorney in Commercial Law; factors and dependencies; limitation of particular power. Self-employed collaborators; representatives, travelling salespersons and commercial agents.

3. PART III. INDUSTRIAL AND COMPETITION LAW TOPIC 7. Introduction to Competition Law Competition Law. Core areas and limits. The origin, scope and evolution of Competition Law. Foundations of Competition Law. Competition policy. The consumer or demand theory. The producer or supply theory. Industrial organisation: prefect competition and the monopoly regime. TOPIC 8. Protection of free competition: systems and evolution The Spanish and European constitutional model: The Law on the Defence of Competition and the local and derived Law in the European Community area. Dualism of the regulation: consequences, general characteristics and character. Elements that determine the regulation and its effective application. Definition of the prohibited practices and organs of control. TOPIC 9. Collusion practices Definition in the national and European region. Horizontal and vertical agreements. Equivalent effect measures. Regime of exceptions to the prohibition: exemptions by category. TOPIC 10. Abuse of a position of domination The abuse of a position of domination: concept, elements, definition of the relevant market. The abuse of a relative position of domination: concept, elements, and justification of the legal framework of competition. The abuse of position of collective domination. Legal approach to the concept of abusive behaviour. TOPIC 11. Concentration operations Legal justification. Concept of concentration. Concentration on a national and European Community scale. Elements and requirements. Concentrations and their control. Authorisation procedure. TOPIC 12. Breach of competition through unfair acts and the regime of State subsidies. Concept and legal justification. Concept of subsidies. Compatibility with the market. Exemptions by category. TOPIC 13. Protection against unfair competition Concept of unfair competition. Historical evolution of Spanish Law. Objective and territorial scope of the regulation. The unfair competition law and its relationship with other laws. General clause and analysis of different requirements covered by the law. Actions. TOPIC 14. The legal regime for advertising Scope of the application of the regulation. Concept of advertising: static and dynamic advertising. The subjects of advertising. Illicit advertising. Actions. Advertising contracts: Contract of creation of advertising, the advertising contract, advertising dissemination contract and sponsorship contract. TOPIC 15. The protection of distinctive signs Reason and breadth of the protection. Its meaning. Spanish Law and the European Community and international regulations. Definition of the brand. Types of brand. Prohibitions: absolute and relative prohibitions. Rights of the owner. Obligations of the owner. Extinction, expiry and nullity. Limits of Brand Law. The commercial name. Transmission. TOPIC 16. Protection of industrial creations Scope of the regulation. "Ratio legis". Patentability requirements and exclusions. Rights of the owner. Obligations of the owner. Labour inventions. Transfer and licence. Legal actions. European and international patents. The EC ruling on the transfer of technology. Addition certificates. Utility models. Concept. Artistic and Industrial models and drawings. TOPIC 17. Protection of intellectual creations Historical evolution. Scope of the regulation. Authorial rights: moral rights and economic rights. Content. Copyright. Property of computer programmes. Actions.

The course methodology is based on:
a) Lectures on the majority of the topics.
b) The study of a selected number of topics through individual study, group work and class discussions.
c) The completion of practical case studies linked to the course topics.

Consequently, the work to be undertaken by students includes:
a) The study of the topics taught in conjunction with one of the recommended textbooks.
b) The completion of the group work assignments according to the method described in the section 'Group work'.
c) The completion of practical case studies.
Normally, these case studies will have to be completed but not submitted. The submission of a number of case studies will be requested and prior notice will be given for these. We will devote a session to each practical case study. At the beginning of these sessions there may be a set writing task. All written responses to questions or case studies that are submitted will be assessed. Spoken contributions to the sessions devoted to the completion of the case studies may also be assessed.

This methodology is wholly suited to the study of Business Law. Through the analysis of case studies in groups it contributes to the development of group-work skills, enables an understanding of conflicts in relation to values and ethical principles and, by insisting on attention being paid to the needs of each group member, it facilitates the targeted delivery of a service. Being applied to a branch of law such as Mercantile Law, which is subject to constant variation and directly affects how economic activity is organised as well as the development of conduct in the world of business (and thereby shows the needs for ethical conduct on the part of operators), the methodology used will enable the development of the course¿s assigned competences (to acquire, understand and structure knowledge and the acquisition of ethical values and principles) through the search for excellence and critical analysis.

Group work
Faculty will organise students into groups of two to complete a writing task (5 to 10 typed A4 pages in length) that offers an argued response to the questionnaire handed out for each assignment. The written assignment should be based on the recommended reading as well as the views and debates generated by each group. The pair will choose a spokesperson for each assignment, and he/she will take the lead in completing the writing task. However, both have to debate the content of the writing task and will have to sign each paper. There will be a different spokesperson for each of the group work assignments so that each student will act as spokesperson once.

The recommended methodology for group work is as follows:

1. The group members divide the readings between them, bearing in mind that they must have all read the section of the textbook corresponding to the topic being studied.
2. A group meeting is held to discuss members' responses to the questionnaire with regard to the completed reading. During the meeting the spokesperson will take notes to prepare the draft of the writing task.
3. The spokesperson writes a draft of the writing task and gives it to the other group members.
4. The group meets again to revise the draft and the spokesperson completes the final draft.

In the presentation session some students (whether spokespersons or not) will be asked to present their conclusions on one or a number of the points addressed in the questionnaire.

Group work assessment:

The mark for the group work assignment will be shared by both group members, however, that mark will be computed twice for the spokesperson. In so doing, the grade will be calculated twice, so that at the end of the course each person will have three marks for the assignments. A good presentation will increase the mark for that assignment by 2 points. A poor intervention will reduce it by two points. Failing to participate without a due justification will represent a mark of zero for that assignment.

Short bibliography:

BROSETA PONT, MANUEL
Manual de Derecho Mercantil
Ed. Tecnos, Barcelona, 2013, 2 Vols.


SÁNCHEZ CALERO, FERNANDO
Instituciones de Derecho Mercantil
Ed. Mc. Graw Hill, Madrid, 2013, 2 Vols.

URÍA, RODRIGO
Derecho Mercantil
Marcial Pons Ed. Madrid, 2012.

URÍA RODRIGO, MENÉNDEZ AURELIO
Curso de Derecho Mercantil
Ed. Civitas. Madrid, 2011, 2 Vols.

VICENT CHULIÁ, FRANCISCO
Introducción al Derecho Mercantil
Tirant lo Blanch, Valencia, 2013.



Bibliography on industrial law and competition:

Various authors
Comentario a la Ley de Defensa de la Competencia
Ed. Thomson Civitas, 2008.

BENEYTO PÉREZ, J.M. (and others)
Tratado de Derecho de la Competencia.
Ed. Bosch 2005.

LOBATO, M.
Comentario a la Ley 17/2001, de Marcas
Ed. Thomson Civita, 2010.

MASSAGUER, J.
Comentario a la Ley de Competencia Desleal.
Ed. Civitas 1999.

(Always the most recent editions)

Legal texts

· General Laws
- Spanish Constitution
- Civil Code

· Commerical Laws
-Commerce Code
-Royal Leglislative Decree 1/2010, which approved the Capital Companies Act.
-Commerical Registry Ruling approved by R.D. 1784/1996, 19 July.
-Law 15/2007, 3 July , in defence of competition.
-Law 3/1991, 10 January, on unfair competition.
-Law17/2001, 7 December, on brands.
-Law34/1988, 11 Noviembre, on advertising in general.
-Law11/1986, 20 March, on patents
-Royal Legislative Decree 1/1996, 12 April, which passed the Intellectual Property Law.

Group	Teacher	Department
Ed: 1	Javier Fontcuberta Llanes	Derecho
Ed: 1	Miguel Trías Sagnier	Derecho

Group	Teacher	Department
Ed: 2	Javier Fontcuberta Llanes	Derecho
Ed: 2	Miguel Trías Sagnier	Derecho