Materieel en formeel recht

Gerelateerde afbeelding

Dwingend en aanvullend recht Dwingend recht legt verplichtingen op: partijen mogen er niet van afwijken. Publiekrecht is vrijwel altijd dwingend recht.
• Voorbeeld Een gemeente mag een bouwer geen bouwvergunning verlenen als het bouwplan in strijd is met het bestemmingsplan. De Woningwet staat dat niet toe, zelfs niet als gemeente en bouwer dat bouwplan allebei toejuichen.
Aanvullend recht (of ‘regelend recht’) geldt voor zover partijen niet iets anders afspreken. Aanvullend recht komt voornamelijk voor in het privaatrecht.
• Voorbeeld Als er geen testament is gemaakt, regelt de wet de verdeling van de nalatenschap. Is er wel een testament gemaakt, dan gelden de bepalingen van het testament.
De bepalingen over de aard en de inhoud van het recht, vormen het materieel recht.
•Voorbeeld Een verhuurder heeft het recht op het ontvangen van de huurprijs. Iemand die een diefstal pleegt, wordt gestraft met gevangenisstraf van ten hoogste vier jaar. Een subsidietoezegging aan een sportvereniging moet worden nagekomen.
De bepalingen die aangeven hoe men zijn recht kan vergaderruimte utrecht verwezenlijken, noemen we formeel recht of procesrecht. Voor het privaatrecht heten die regels: burgerlijk procesrecht. Deze regels zijn opgenomen in het Wetboek van Burgerlijke Rechtsvordering. Daarin kan iemand dus nalezen op welke wijze hij zich tot de rechter moet wenden om een vonnis te verkrijgen en welke stappen hij tijdens de procedure moet ondernemen wanneer de wederpartij zijn verplichtingen uit een overeenkomst niet nakomt. Het formele strafrecht (het strafprocesrecht) is te vinden in het Wetboek van Strafvordering. Hierin staat precies beschreven waar de politie zich aan moet houden bij de opsporing van een verdachte en bijvoorbeeld hoe lang een verdachte van diefstal mag worden vastgehouden. Het procesrecht voor bestuursorganen is grotendeels opgenomen in de Algemene wet bestuursrecht (Awb). Hierin zijn de procedures te vinden voor het maken van bezwaar tegen overheidsbeslissingen, bijvoorbeeld als een toegezegde subsidie niet wordt uitbetaald.

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