Forced Expropriation: the right price

Identifier:  TFG:530

Handle: https://hdl.handle.net/20.500.11797/TFG530

Authors:  Jové Hernández, Víctor

Abstract:
The law provides two mechanisms to protect the heritage of a person, namely, the forced expropriation and patrimonial responsibility of the Public Administration. The institution of the forced expropriation is the singular and deliberate deprivation (mandatory) of the assets of a person or entity with a public purpose or social interest (art. 1.1 LEF). Thus, the achievement of general interest will effective "by" appropriate compensation (art. 33.3 CE), which will be the equity compensation in the person expropriated. However, the lack of specificity of the Constitution on the legal nature of the expropriation compensation (the right price) causes the discrepancy of treatment, therefore, if configured as a prior to expropriation or consequence and effect of this requirement. These two aspects of compensation are supported by the Constitutional Court from the STC 166/1986, of December 19, FJ13, which also are regulated in the general and emergency LEF respectively procedure. Finally, the determination and payment of fair compensation are the backbone of the institution the forced expropriation. On the other hand, the generalization of exceptional urgency procedure (art. 52 LEF), except for Local Government, it has meant the possible infringement of title theory (payment) and mode or traditio (the act of occupation). From here derives discussion of certain doctrine (GARCÍA DE ENTERRÍA I TOMÁS-RAMÓN FERNÁNDEZ), stating that the Constitution determines the "rule of previous payment" equating the word "by" with "through" (Appendix 1). Therefore, the no expropriation "is the repair of damage previously accomplished, but a equity compensation enrichment"(GARCÍA DE ENTERRERÍA I TOMÁS-RAMÓN FERNÁNDEZ). In conclusion, the social function of property rights defining its content, however the limits and restrictions of its exercise.