| Legal System in Mexico |
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Despite what you may have heard Mexico has a highly evolved legal system. It is different to the systems in Canada and the U.S. and although somewhat complex (not unlike Canada and the U.S.), it is effective but slow.
The vast majority of people, no matter where you live, rarely get caught up in the complex legal system, and are usually only exposed to those laws that affect their every day living.
In this section we will cover those issues and point out the differences.
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Civil Law – To Sue or Not to Sue
Mexico is by far a less litigious society than its neighbors north of the border. The rule here is that it is far better to negotiate than litigate. Here’s why.
The Court Procedures in Mexico are very different
In the U.S. and Canada the plaintiff’s Lawyer files a complaint and the defendant’s Lawyer files a response. The Lawyers go through the process of Discovery and then the case is argued before a Judge (and Jury) using evidence and witnesses. A decision is made and “awards” are made which can be significant, including costs, damages, special damages and punitive damages.
In Mexico, the plaintiff files a complaint providing written evidence with supporting documents and statements from witnesses. The defendant files a response, again in writing, with supporting documentation and witness statements. The Judge reviews the submissions, asks for more evidence if he deems it necessary, and then renders a decision. There is no Discovery process and Lawyers are not allowed to be present when either party or witnesses are called in to make statements.
Based on the decision, awards are made for damages but they are much smaller. There are no special or punitive damages and each party pays their own fees and costs.
Litigation is expensive, a long process and judgments are often difficult to enforce, even against a solvent defendant. Judgments can be contested in a separate “Amparo” proceeding which can take several years. An “Interlocutory Appeal” can be lodged during the proceeding which will also lengthen the process (and the cost).
Criminal Law
A major difference in Mexico is that in criminal proceedings, the accused is considered guilty until proven innocent. Contrary to the Hollywood portrayal of the police in Mexico, they seldom detain anyone, especially respectable citizens of another country, unless there is serious cause or reason to suspect their guilt.
When a crime is reported, it will be investigated by the District Attorney’s office with support from the police. If the investigation reveals a suspect, the District Attorney will present the results of the investigation to a criminal Judge and request permission to arrest the suspect and go to Trial. The Judge may or may not issue a Writ of Arrest, based on the evidence.
A significant difference in the investigation process is that the suspect must be questioned along with witnesses and provide statements. This is normally done at the District Attorney’s office, but no Lawyer is allowed to be present.
If the suspect is arrested, he/she is taken to jail, processed and fingerprinted. Within 48 hours the accused appears at a Public Hearing where the charges are read and the accuser named. The suspect can make a general statement and the issue of Release on Bond is covered. Normally Release on Bond is allowed if the sentence for the crime is less than five years and the accused does not have a record.
From this time on, the accused may have a Lawyer represent him/her in all aspects of the trial. If the accused cannot afford a lawyer, the Judge will appoint a Public Defender. The accused has the constitutional right not to incriminate him/herself and need not testify against him/herself.
During the first 48 hours after arrest, the accused may present evidence of innocence. The Judge must decide with 72 hours whether to proceed with Trial or not, based on the evidence presented. Anyone arrested cannot be held beyond 72 hours without charges being laid and arraigned before a Judge.
The Law and Auto Accidents
If involved in an auto accident, do what you would do at home. Stay calm, get witnesses’ names and addresses, and contrary to what you may have heard, do not leave the scene. If someone is hurt and you leave the scene, you could face additional charges for leaving a person in need of help.
If you have insurance with a good company, you will have a list of contacts for Lawyers and Adjusters. Call them immediately. Read "Vehicle Insurance"
If involved in a “fender bender” (your fault), you can quite often negotiate a cash payment. If however, persons are injured there will be an investigation by the police and statements taken. The vehicles and drivers involved will be detained until fault is established. (This is where witnesses are important.) You will have the opportunity to post a bond to secure your release until the investigation is complete. Your Lawyer or Adjuster should handle this for you. (Ensure that your insurance contains this coverage.)
If you are found not to be at fault you will be free to leave and your Adjustor will look after getting your vehicle repaired and returned to you. If you are at fault, you will be charged and the case will be heard in a criminal court. You will remain free on bond during the Hearing.
The penalties, if found guilty, will vary based on the seriousness of the accident and the damage incurred. For cases involving a death, the jail term is from three days to five years.
Payment for damages will be the actual cost of medical expenses and the actual cost of property damaged. In addition, if permanent injury is incurred (paralysis, blindness, etc), payment will be based on industrial accident payment schedules, which allows payment based on minimum wage multipliers for periods up to approximately three years.
One thing that is of the utmost importance: Under no circumstances should you bring drugs or guns into Mexico. There is zero tolerance and you will go to jail. Under very strict rules, you may obtain a permit for hunting or gun club importation of a gun, but they are difficult to obtain.
Contract Law
The fundamentals of Contract Law are much the same in Mexico as they are in the U.S. and Canada. The contract must be in writing, have an offer and acceptance, establish liquidated damages or other penalty provisions and conditions of default and termination of contractual obligations.
The big difference is that in Mexico, the principle of “consideration” is not a requirement. The validity of a contract depends only on the existence of the agreement between the parties.
The presence of witnesses to a contract is fundamental in Mexico and public registration of contracts so that 3rd parties to the contract will be legally bound is a peculiarity of Mexican law. As in the U.S. and Canada, contracts involving illegal activities are not enforceable. Contracts in Mexico are subject to more formality and quite often require a “Notario” to certify the legality of certain types of contracts.
As in Civil Law, disputes are far better negotiated or resolved through Arbitration than litigated.
Unless you are operating a business in Mexico (in which case you will need a competent Lawyer to advise you), the most common contracts you will enter into are for services. Such services as electricity, water, telephone, internet etc are standard contracts. Other service contracts such as repairs, renovations, construction, personal services (maids, gardeners) are best reviewed with a Lawyer to ensure they are legal, protect you in case of dispute and have the full agreement documented.
Some people get contracts for just about any and every service - preferring to have the written contract to fall back on, while others deal with maids and gardeners and others in a much less formal manner. Certainly there are times when you should protect yourself with a formal contract, however from personal experience we have found that a mutual trust relationship goes a long way.
Wills
If you decide to live in Mexico and accrue some assets then you need to consider a Will. A regular Will covers your worldwide assets and can be made either in your home country or in Mexico. An issue with a regular Will is that “cross border” probate can be very complicated.
In Mexico, you can have a legacy Will which only covers your assets in Mexico and your regular Will covers your assets in your home country
Some assets can be passed on to your heirs by including them on title (in case of a property) or including them as a named signatory (for bank accounts/investment accounts).
When drawing up a Will, a Notary must be used to make it legal and it must be in Spanish. A Lawyer should be used to draw up the Will and then have it formalized by a Notary.
Apostille
Apostille is a French word which means a certification. It is commonly used in English to refer to the legalization of a document for international use under the terms of the 1961 Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents. Documents which have been notarized by a notary public, and certain other documents, and then certified with a conformant apostille are accepted for legal use in all the nations that have signed the Hague Convention.
Mexico is one of the countries who signed the Convention (in 1995) so there is a need to have certain documents certified by apostille. Quite often you are required to provide support documents when making application for Mexican documents e.g. Visas. These could include Birth Certificate, Marriage Certificate, Divorce Decree, etc. Unfortunately, the originals or copies are not acceptable. They must be certified in your home country and the person certifying them must be confirmed as legitimate by, (In the U.S.) the Department of the Secretary of State and (In Canada) at a Mexican Embassy.
In countries which are not signatories to the 1961 convention and do not recognize the apostille, a foreign public document must be legalized by a consular officer of the country from which the document is issued. The United States is also a member. Canada is not. |
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| From Wikipedia, the free encyclopedia |
Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents
The Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents is Convention #12 of the Hague Conference on Private International Law. It was signed by the original signatories on 5 October 1961. It specifies the modalities through which a document issued in one of the signatory countries can be certified for legal purposes in all the other signatory states. Such a certification is called an apostille. It is an international certification comparable to a notarization and is often added to documents that have been in some manner signed by a Notary, lawyer or other public official such as the clerk of a court of record in their official capacity.
States which have not signed the Convention must specify how foreign legal documents can be certified for its use. Sometimes two countries will have a special treaty concerning the recognition of each others documents, but usually not. When the country issuing or receiving the document does not recognize an apostille, you must usually take the document to the consulate of the foreign country you need to certify it or to an honorary consular officer appointed by that country who is qualified to certify it. It may need to be certified by the highest government official in the country where it originated, such as the Secretary of State or Minister of Foreign Affairs, before being accepted by the consular officer of the foreign country, this process is known as chain authentication as an unbroken chain of government officials each certifies the signature (and seal in some cases) of the prior official in the first country and the consular officer then certifies that the document should be recognized as authentic in the country of destination. Usually that consular officer's signature can be authenticated in the country of destination as well.
In the United States, apostilles are usually affixed by the secretary of state in each US state or territory. It may be necessary for an intermediary official to affix a certification that the original signatory (notary or clerk) was authorized to sign the public document. Note that Canada is not a party to this convention and Canadian documents cannot be certified with an apostille. In the Russian Federation the local office of the Ministry of Justice will affix an apostille for local notaries. |
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