There is often much confusion in the translation of the five principal types of Spanish “business vehicles” (formas jurídicas de la empresa). The simplest form of business entity in which a person goes into business for himself is the empresa individual, tantamount to the “sole proprietorship” in the United States. The owner is known as an empresario (or) comerciante individual, called “sole proprietor” in the US and “sole trader” in  the UK.

A second type of business entity includes three forms of sociedades personalistas (a generic term for “partnerships”), including the sociedad colectiva or S.C. (also called sociedad regular colectiva, or S.R.C.), which is a “general partnership;” the sociedad comanditaria (simple), or S. Com. (also known as a sociedad en comandita or S. en Com.), which is a “limited partnership;” and the sociedad comanditaria por acciones, or S. Com. p. A., a hybrid “partnership limited by shares” that has some of the features of a sociedad anónima. In sociedades colectivas (“general partnerships”) all partners (called socios colectivos) are “general partners,” sharing management duties and having unlimited joint and several liability, unless the partnership agreement provides otherwise. In addition to the general partners, sociedades comanditarias likewise have socios comanditarios (“limited partners”) whose libility is limited to the amount of their contributions to the partnership, but who have no management rights. Sociedades comanditarias por acciones have at least one general partner (socio colectivo) in addition to the other socios who may be called accionistas (“shareholders”), given that partner interests in this type of entity are divided into shares (acciones).

The sociedad de responsabilidad limitada or S.R.L. (also termed simply sociedad limitada, or S.L.) is Spain’s “limited liability company,” while the sociedad anónima, or S.A. is a “corporation.” (In British English they may perhaps be described respectively as a “private limited company” and a “public limited company.”) The three principal differences between a sociedad limitada and sociedad anónima may be summarized as follows (there are quite a few more):

Both sociedades limitadas and sociedades anónimas may be formed by a single member under the names sociedad limitada unipersonal or S.L.U. (a “single-member limited liability company”) and sociedad anónima unipersonal or S.A.U. (a “sole shareholder corporation”). Both S.L.s and S.A.s may likewise be partially employee owned, and will operate as either a sociedad limitada laboral or S.L.L. (“employee-owned limited liability company”) or a sociedad anónima laboral or S.A.L. (“employee-owned corporation”). Corporations whose shares are traded on a stock market are known as sociedades anónimas cotizadas.

Other, perhaps less common forms of doing business in Spain include:

• sociedades profesionales (“professional entities”)
• sociedades cooperativas (“cooperatives;” “co-ops”)
• agrupaciones de interés económico (“economic interest groupings”)
• uniones temporales de empresas (“temporary business alliances”)
• asociaciones (“associations”)
• fundaciones (“foundations”)

These expressions are often translated broadly as “legal grounds” or “legal basis,” which may be appropriate renderings in certain contexts. But it should be noted that they have very specific meanings when used in Spanish court opinions. In Spain judgments (sentencias) are commonly divided into two sections, Antecedentes de Hecho and Fundamentos Jurídicos or Fundamentos de Derecho. The former refer to the facts that the court deems proved, the “facts as found,” while the latter refer to the legal grounds or points of law on which the court is basing its final ruling (fallo). Following the terminology of US procedure, in this context Antecedentes de Hecho might be appropriately translated as “Findings of Fact,” while Fundamentos Jurídicos or Fundamentos de Derecho may be rendered as “Conclusions of Law.”

In Spain, a denuncia is the report of a crime to the police, a prosecutor or a judge. The alleged offense is then investigated and, if found to have merit, prosecuted. But once a denuncia is made, it is out of the hands of the informant who reported the crime.

In contrast, in a querella the person reporting the crime becomes a party to the proceedings. This is often the public prosecutor, in which case this is known as a querella del Ministerio Fiscal (“criminal complaint filed by the Public Prosecution Service”). But in contrast to Anglo-American criminal procedure, in Spain the victim or, at times, even an ordinary citizen may report a crime and indicate that he intends to enter an appearance as a party to the criminal proceedings, and his lawyer then will prosecute the case alongside the public prosecutor (fiscal).

In that regard, in addition to the powers of the public prosecutor to prosecute criminal offenses on behalf of the state, in Spain the victim or any other private citizen may enter an appearance (personarse) in criminal proceedings in what amounts to a “private prosecution” that is practically unknown or in disuse in Anglo-American jurisdictions. In this context “acusación (or) acusador particular” generally denotes the victim of a crime (or his representative) who files a private criminal complaint, entering an appearance in a criminal proceeding as a private prosecutor. Moreover, persons other than the victim may also enter an appearance in criminal proceedings as private prosecutors if they believe that they have an interest to defend in the matter. In that regard acusación (or) acusador popular denotes a private individual or an association of citizens who file a querella and post a bond (fianza) in order to be admitted as a party to the prosecution of a criminal case. And acusación (or) acusador privado refers to an individual seeking redress for a private offense (delito privado) that may only be prosecuted by the victim and in which the public prosecutor does not intervene.

In summary, denuncia is a “crime report” or the “report of a crime to the police (or other authority),” while in the cases initiated by private individuals querella may perhaps be described as a “private criminal prosecution.” For more on this peculiar Spanish system of allowing private individuals to participate as parties to criminal prosecutions see:

Julio Pérez Gil. “Private Interests Seeking Punishment: Prosecution Brought by Private Individuals and Groups in Spain.” Law & Policy, Volume 25 Issue 2 (April, 2003), pp. 151-172.

crisis procesales; terminación anormal del proceso; modos anormales de terminación del proceso

Translators are sometimes at a loss as to how to render these seemingly cryptic expressions that simply describe the termination of a civil action without a decision or judgment on the merits (sin resolución o sentencia sobre el fondo). Indeed, since it is thought that civil proceedings should end with a judgment on the merits, these other means of concluding such proceedings are often described by legal scholars as terminación anormal del proceso or as crisis procesales, although such circumstances are perhaps more clearly described collectively as terminación anticipada del proceso por voluntad de las partes. These include allanamiento, desistimiento, renuncia, transacción judicial and caducidad en la instancia.

Allanamiento (a la demanda) is simply the defendant’s total or partial admission of the allegations set forth in the plaintiff’s complaint (demanda). This results in a judgment for the plaintiff (sentencia condenatoria) if the defendant admits all of the allegations (known as allanamiento total) or, if warranted, a trial of the allegations denied (cuestiones no allanadas) if the defendant admits only some of the plaintiff’s allegations (called allanamiento parcial).

Desistimiento and renuncia denote ways in which the plaintiff may dispose of the proceedings prior to trial. Desistimiento is the plaintiff’s abandonment of a proceeding without waiving his right to bring an action at a later date against the same defendant based on the same claims (el actor tiene por abandonado el proceso sin que ello suponga renuncia a la acción). The judge then dismisses the case without prejudice (el tribunal dicta auto de sobreseimiento y el actor podrá promover nuevo juicio sobre el mismo objeto). In contrast, renuncia (a la acción) denotes the plaintiff’s waiver of all claims against the defendant and results in a judgment for the defendant that has full res judicata effects (sentencia absolutoria con autoridad de cosa juzgada).

The parties may likewise bilaterally agree to terminate proceedings prior to trial by reaching an in-court settlement (transacción judicial; acuerdo transaccional judicial). The court approves or sanctions their settlement agreement (homologa la transacción), issuing an auto homologando la transacción, similar to what in US practice is called an “agreed judgment,” “consent judgment” or “stipulated judgment,” i.e., an in-court settlement that becomes a court judgment when the judge sanctions it.

And, finally, a proceeding may be terminated by the parties’ failure to prosecute (also called “lack of prosecution” or “want of prosecution”). A suit will be deemed to have been abandoned if the parties remain inactive for a statutorily defined period, after which the action lapses (caduca). This situation is known as caducidad en/de la instancia, and may be described as “constructive abandonment of action for failure to prosecute.” Since no decision on the merits has been rendered (la pretensión queda imprejuzgada), the plaintiff is free to bring another suit at a later date based on the same claim.

In other respects, proceedings may likewise terminate due to supervening circumstances in which the parties no longer wish to pursue their claims with regard to the subject matter in dispute (known as carencia sobrevenida de objeto or desaparición sobrevenida del interés légitimo).

And, in addition to the above, parties to a civil action may likewise reach an “out-of-court settlement,” which is variously known as satisfacción extraprocesal or transacción extrajudicial.

Read more here:

Prieto Blanco, María Pilar. Desistimiento, caducidad, terminación del proceso por satisfacción extraprocesal y desaparición sobrevenida del interés legítimo. Centro de Estudios Jurídicos (Ponencias Secretarios Judiciales), 2004, pp. 6988-7040.

resolución judicial; providencia; auto; sentencia

These four terms all denote types of judicial decisions issued by Spanish courts, but they are in no way interchangeable. The broadest is resolución judicial, a generic term for all types of judicial decisions, including providencias, autos and sentencias. Providencias are court orders that resolve issues arising during a proceeding (defined as ordenación material del proceso), and may generally be described as “interlocutory orders” or perhaps, depending on the context, as “case management orders.” The most salient feature of providencias is that they may be issued without stating the legal grounds for the decision (sin motivar).

In contrast, an auto is a court order requiring certain formalities and in which the reasons for the ruling must be stated (debe ser motivado). Autos decide appeals from providencias, resolve interlocutory issues and in some instances may also be used for the final disposition of a case. Thus, depending on the context, auto may perhaps be rendered as either “interlocutory order” or “final order.” As examples, in criminal procedure an auto is required to order pretrial custody (auto de prisión provisional), to order an arrest (auto de detención) or to order a search incident to an arrest (auto de entrada y registro). The latter two are often informally referred to as órdenes (órden de detención; órden de registro), but both arrest warrants and search warrants must be issued in the form of an auto (deben revestir la forma de auto).

Sentencia (“judgment”) denotes a court’s final disposition of a case in a ruling on the merits (decision sobre el fondo). Sentencia definitiva is a final appealable judgment, while sentencia firme is a judgment that has become final because no appeal was filed against it and the term for appealing the judgment has expired (el recurso ha prescrito). (For more on sentencia definitiva-sentencia firme, see the previous Confusing Terms post).

The peculiar term unipersonal is frequently used in Spain in at least two different legal contexts. With respect to the Spanish court system, a distinction is made between juzgados that have only one sitting judge (called jueces), and tribunales on which several judges (magistrados) sit in panels of (usually) three judges. Where warranted, to underscore this distinction juzgados having only one sitting judge are often described as órganos unipersonales, while tribunales on which judges sit in panels are called órganos colegiados. The often-repeated literal translations of these expressions as “unipersonal courts” and “collegiate courts” would likely be more appropriately rendered respectively as “single-judge courts” and “multi-judge courts” (or) “courts in which judges sit in panels.”

In other respects, in the context of corporate law unipersonal is used to describe companies with a single member or shareholder. Thus, a Sociedad de Responsabilidad Limitada Unipersonal (abbreviated S.R.L.U. and more often known simply as a Sociedad Limitada Unipersonal, or S.L.U.) may be described as a “single-member limited liability company,” while a Sociedad Anónima Unipersonal (S.A.U.) is a “single-shareholder corporation.” (In that regard, owners of Spanish limited liability companies are perhaps more appropriately described as “members” rather than “shareholders,” since by law owner interests in S.L.’s cannot be called “shares” [acciones], but rather are known as participaciones.)

Perhaps it should be underscored that in business law contexts unipersonal may be used with very different meanings in Spain and in Spanish-American jurisdictions. As indicated above, in Spain unipersonal designates a single-shareholder corporation (sociedad anónima unipersonal) or a single-member limited liability company (sociedad de responsabilidad limitada unipersonal). But, for example, in Chile and Uruguay unipersonal is used in the expressions empresa unipersonal (and empresario unipersonal) to denote a business entity similar to what in the US is known as a “sole proprietorship” (and  its owner, the “sole proprietor” or “sole trader” in England and Wales). In  contrast, in Spain a “sole proprietor” is known as an empresario individual or comerciante individual.

(ilustración: Fernando Vicente)

There are several keys to deciphering Spanish appellate terminology. The first is to have a clear understanding of the difference between recursos devolutivos and recursos no devolutivos. A recurso devolutivo is an appeal from (or against)* the decision of a trial court (or administrative agency) that will be heard and adjudicated by a higher court (or higher administrative authority). When an appeal is heard by a higher court or administrative authority, it is said to have efecto devolutivo. In contrast, a recurso no devolutivo is actually a petition for a rehearing or for reconsideration filed before the same court or administrative agency that issued the original decision being appealed.

This distinction may not be readily understood by English-speaking audiences since in Anglo-American law an appeal is, by definition, to a higher court or authority. Translations dealing with any of the many recursos no devolutivos existing in Spanish procedure should clearly reflect the fact that the appeal will be adjudicated by the same court or authority that issued the original decision. For this reason, this type of remedy is often described as a “reconsideration appeal” or, perhaps more appropriately, a “motion for reconsideration” since, in essence, it is a motion petitioning a court or administrative authority to reconsider and reverse its initial ruling.

A second aspect to consider is whether the appeal suspends the execution (enforcement) of the original decision while the appeal is pending (called efecto suspensivo). When an appeal is said to be admitido en un solo efecto, this is a reference to the fact that the appeal tiene efecto devolutivo, i.e., is a recurso devolutivo, an appeal to a higher court or authority. The expression recurso admitido en ambos efectos denotes a recurso devolutivo con efecto suspensivo, that is, an appeal to a higher court or authority that also stays (suspends) the execution of the lower court’s judgment while the appeal is pending.

A third point is to distinguish between recurso (or recurrir) and apelación (or apelar), which are often assumed to be synonymous. But recurso is actually a generic term for many types of appeal, while apelación denotes a specific remedy (called recurso de apelación), which is always adjudicated by a higher court or authority (i.e., it is a recurso devolutivo). Translators may be prompted to assume that recurrir and apelar are synonyms, given that recurso and apelación do indeed appear as such in many bilingual legal sources that inevitably translate both as “appeal.” However, they are not interchangeable. As indicated above recurso is a broad term used to denote generically many types of appeals and legal remedies, both judicial and administrative. Thus, recurso may be a superordinate term meaning “appellate remedy” or may refer to a specific type of appeal, depending on the context. In contrast, recurso de apelación specifically denotes an appeal from the decision of a trial court (tribunal de primera instancia). In that regard, recurso de apelación may be described as an “appeal in second instance” (or perhaps an “appeal to an intermediate appellate court” in those instances in which further appeal is available if the apelación is unsuccessful). The verb describing the filing of a recurso de apelación is recurrir en apelación.

Another classification divides appeals into recursos ordinarios filed as of right, and recursos extraordinarios that may only be filed in extraordinary circumstances and for reasons defined by law (motivos tasados en la ley). Appeals to the Spanish Tribunal Supremo, called recursos de casación, are extraordinary appeals (even the one called recurso de casación ordinario). Although often translated literally as “casation appeals,” recursos de casación may likewise be rendered simply as just that: “appeals to the Supreme Court.”

A final point to remember (and a source of much confusion) is the fact that the same type of appeal may have different names in different jurisdictions. For example, in Spain a recurso no devolutivo filed in civil courts is called recurso de reposición. That same type of appeal in the criminal and labor courts has different names depending on whether it is filed from a decision issued by a juzgado or órgano unipersonal (single-judge court) or tribunal or órgano colegiado (multi-judge court). Thus in criminal procedure recursos no devolutivos filed from certain decisions of juzgados de instrucción are called recursos de reforma, while recursos no devolutivos from the decisions of multi-judge criminal courts are called recursos de súplica. A similar distinction is a feature of labor procedure in which there are two recursos no devolutivos, the recurso de reposición (filed from certain orders issued by juzgados de lo social) and the recurso de súplica (filed from certain orders issued by the Salas de lo Social de los Tribunales Superiores de Justicia). This disparity in nomenclature likewise exists among recursos devolutivos. Indeed, as noted above, what might generically be termed a recurso en segunda instancia is a recurso de apelación in civil, criminal and administrative procedure, but is called recurso de suplicación in labor proceedings.

This summary certainly doesn’t address all of the pitfalls of translating Spanish appellate terminology and, ultimately, unless the context requires otherwise, the majority of these recursos may be translated simply as “appeal.” Likewise, both recurrente and apelante, as well as recurrido and apelado can usually be rendered respectively as “appellant” and “appellee” (or “respondent” in British English).

Read more here:

Víctor Moreno Catena and Valentín Cortés Domínguez. Derecho Procesal Civil, Parte General and Derecho Procesal Penal (Valencia: Tirant lo Blanch, 2015) pp. 339-398 and 579-655; Víctor Moreno Catena, dir. Esquemas de Derecho Procesal Laboral (Valencia: Tirant lo Blanch, 2013, pp. 117-135.

*US usage: “to appeal from a judgment;” form preferred in British English: “to appeal against a judgment”

Although Spaniards of a certain age would probably not confuse these terms, I have seen the former called by the latter’s name several times both in translation and on the Web, so it is perhaps worth underscoring the difference. Cortes Generales is the name of Spain’s bicameral parliament including, as its lower house, the Congreso de los Diputados (“House of Deputies”) and upper house, the Senado (“Senate”). Las Cortes Generales were established and are regulated in Title Three of the Spanish Constitution of 1978, and its members are known respectively as diputados and senadores.

In contrast, Cortes Españolas was the unicameral legislative assembly under the Franco regime, established in 1942 and existing until 1977. Its members were known as Procuradores en Cortes and should not be confused with procuradores de los tribunales, who represent the interests of their respective parties before the Spanish Courts.

Perhaps to underscore the different treatment afforded minors, in Spain the terminology of juvenile justice (justicia penal de menores) is quite different from the terminology used to describe the criminal prosecution of adults. In that regard, in adult felony proceedings (proceso penal ordinario) the preliminary investigation is known as a sumario, while in juvenile justice the equivalent is expediente de reforma. Thus bringing a criminal action against an adult is expressed as incoar un proceso penal, while in juvenile procedure this is called incoar un expediente de reforma. The questioning of an adult suspect may be described as interrogatorio del investigado (formerly, imputado) and is conducted by an investigating judge (juez instructor). In juvenile justice terms the interrogation of a minor is known as exploración del menor and is carried out by a prosecutor (fiscal).

Pretrial detention, known as prisión provisional or prisión preventiva in adult contexts, is internamiento cautelar when it involves a juvenile. In certain circumstances an adult may for a limited period be placed in isolation or solitary confinement, known as prisión provisional incomunicada; but this is called internamiento incomunicado if imposed on a minor. And rather than juicio oral, the trial of a minor is referred to as an audiencia.

Criminal sentences, known as penas when imposed on an adult convicted offender, are called medidas when imposed on a minor. Thus, enforcement of a criminal sentence is ejecución de la pena in adult contexts, but is known as ejecución de la medida when applied to juveniles. A custodial sentence for adults, pena privativa de libertad or, more specifically, pena de prisión is called medida de internamiento when applied to juvenile offenders, who are known as menores infractores.

Convicted adults may be sentenced to incarceration in a centro penitenciario, while juveniles serve custodial sentences in a centro de internamiento (de menores) and are known as a menores internados rather than as internos or reclusos, as adult prisoners are called. In addition to these and other differences in terminology, it should perhaps be noted that the rules of procedure for trying minors set forth in Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de menores (and subsequent amendments) are radically different from those governing the prosecution of adults under the Ley de Enjuiciamiento Criminal. And cases against minors are always heard in a juvenile court (juzgado de menores) by a specialized juvenile court judge (juez de menores).

For further reading:

José Luis de la Cuesta and Isidoro Blanco. “El enjuiciamiento de menores y jóvenes infractores en España.” Electronic Review of the International Association of Penal Law (Revista Electrónica de la Asociación Internacional de Derecho Penal) A-03, 2006.

tipicidad; antijuricidad; culpabilidad; punibilidad

These criminal theory terms often appear to elude translation since they are not familiar concepts in Anglo-American law. Briefly, the Spanish system for determining criminal liability (also adopted in many Latin American jurisdictions) follows the tripartite German model and is accomplished in three successive steps. First the tipicidad (Tatbestandsmäßigkeit) of the act is established, i.e., a determination is made as to whether when committing his crime the alleged offender has fulfilled each element of the statutory definition of that specific offense (tipo penal). Among others, these include both tipo objetivo and tipo subjetivo elements similar to the actus reus and mens rea requirements of Anglo-American criminal law. Then the antijuricidad (Rechtswidrigkeit) or wrongfulness of the act is assessed to determine whether the alleged offender’s act was antijurídico or wrongful (sometimes also translated as “unlawful”) and whether there are justification defenses (causas de justificación) that would render the act lawful. In a third step culpabilidad (Schuld), i.e., culpability or blameworthiness is examined to ascertain the alleged offender’s individual accountability for the offense and whether there are excuse defenses (causas de exculpación) which would exempt him from criminal liability. As a final consideration punibilidad (Strafbarkeit), that is, elements of individual punishability are then addressed.

Along with other concepts of Spanish criminal theory, the above are explained in English in:

 Bachmaier Winter, Lorena y Antonio del Moral García. Criminal Law in Spain. Alphen ann den Rijn: Kluwer Law International, 2010.

 Gómez Jara, Carlos y Luis E. Chiesa. “Spanish Criminal Law” in Kevin Jon Heller and Markus D. Dubber, eds. The Handbook of Comparative Criminal Law. Palo Alto: Stanford University Press, 2009, pp. 488-530.

Hermida, Julián. “Convergence of Civil Law and Common Law in the Criminal Theory Realm.” University of Miami International & Comparative Law Review, Vol. 13 (2005-2006) pp. 163-232.