The TS establishes the aggregation of surnames as a mechanism for the conservation of the last name at risk of disappearing

Iustel

The Court points out that, in accordance with the applicable regulations, the change of surnames can be carried out through their aggregation to another with the purpose of preserving a Spanish surname at risk of disappearing. In these cases there is a legal waiver of the requirement that the surname in the proposed form constitutes a factual situation not created by the interested party. On the other hand, in the present case there is a just cause in the conservation of the surname, without it being stated that the request made responds to a spurious reason, but rather to that of preserving a family surname, nor does the alteration harm a third party. Nor does the Chamber appreciate that there is fraud under the Law, but rather a legal option, which in this case is duly justified, nor is the best interests of the minor pejoratively affected.

SUPREME COURT

Civil Chamber

Ruling 629/2021, of September 27, 2021

APPEAL Num: 1035/2019

Speaker Hon. Mr. JOSE LUIS SEOANE SPIEGELBERG

In Madrid, on September 27, 2021.

This courtroom has heard the appeal filed by Mr. Teodoro and Mrs. Casilda, represented by the attorney Mr. Antonio Ortega Fuentes, under the legal direction of the appellants themselves, against judgment no. 613/2018 , issued by Section 8 of the Provincial Court of Madrid, in appeal no. 652/2018, arising from ordinary trial proceedings no. from Madrid. The Public Prosecutor has intervened.

The Hon. Mr. José Luis Seoane Spiegelberg.

FACTUAL BACKGROUND

FIRST.- Processing in the first instance

1.- The attorney Mr. Antonio Ortega Fuentes, on behalf of and on behalf of Mr. Teodoro and Mrs. Casilda, filed an ordinary lawsuit against the General Directorate of Registries and Notaries, in which he requested that judgment:

"[...] why:

1.- The intended change is upheld, granting that the youngest daughter of my principals can be called Elisenda for all the reasons set forth in this lawsuit, turning her first surname from "Cipriano" to "Teodoro".

2.- The defendant is ordered to pay the costs in the event that she opposes it, exempting her from said sentence if she accepts or does not oppose said change".

2.- The lawsuit was filed on March 16, 2017, and distributed to First Instance Court No. 8 of Madrid, registered under No. 267/17. Once it was admitted for processing, the defendant was summoned and it was transferred to the Public Prosecutor's Office.

3.- The State Attorney, on behalf of the General Directorate of Registries and Notaries, responded to the claim by writing in which he requested the court:

"[...] handed down a judgment dismissing it with an express order of costs to the plaintiff".

4.- After following the corresponding procedures, the substitute judge of the Court of First Instance no. 8 of Madrid issued a judgment dated March 23, 2018, with the following operative part:

"I fully reject the claim filed by the attorney Mr. Ortega Fuentes, on behalf of Mr. Teodoro and Mrs. Casilda, against the GENERAL DIRECTORATE OF RECORDS AND NOTARIES AND THE STATE ADVOCACY, denying the change of alleged surnames, imposing the costs on the plaintiff".

SECOND.- Processing in second instance

1.- The first instance sentence was appealed by the representation of D. Teodoro and D.ª Casilda.

2.- The resolution of this appeal corresponded to section 8 of the Provincial Court of Madrid, which processed it with the roll number 652/2018, and after following the corresponding procedures, issued a sentence on December 28 of 2018, the operative part of which provides:

"WE FAILED:

DISMISS the appeal filed by the Prosecutor Mr. Ortega Fuentes on behalf of MR. Teodoro AND MR. Casilda, against judgment number 83/2018 of March 23, 2018 of the Court of First Instance no. 8 of Madrid, in Ordinary Procedure number 267/2017, for which the following pronouncements are made:

1st. Fully confirm the judgment appealed.

2nd. To impose on the appellant the costs of this appeal".

THIRD.- Filing and processing of the appeal

1.- The attorney D. Antonio Ortega Fuentes, representing D. Teodoro and D.ª Casilda, filed an appeal.

The reasons for the appeal were:

"FIRST REASON FOR APPEAL.- Violation of applicable substantive rules to resolve the issues that are the subject of the process, specifically infringement of articles 57 and 58 of the Civil Registry Law of June 8, 1957 (hereinafter LRC), and infringement of articles 205, 206 and 208 of the Regulation that develops it approved by the Decree dated November 14, 1958 (hereinafter RRC), concurring, in addition, appeal interest since the Appeal Judgment appealed contradicts the jurisprudential doctrine of other Provincial Courts already reviewed, especially on the concept of surname that "legitimately" belongs to the petitioner for the purpose of linking it to the precedent.

SECOND REASON FOR APPEAL.- For violation of fundamental right not included in art. 24 CE. Thus, article 2.1 of Organic Law 1/1982, of May 5, on civil protection of the right to honor, personal and family privacy and self-image has not been applied, since in accordance with STC 167/2013 of October 7, the decision regarding the surnames of a minor is included within the right to the name and, in turn, this within the set of rights of the person, specifically, in the field of the fundamental right to own image, personal and family privacy of article 18.1 of the Constitution by constituting a means of personal identification and a link with a family.

THIRD REASON FOR APPEAL.- Under the protection of articles 477.2.3.º and 477.3 of the Civil Procedure Law, it presents an appeal interest, as it opposes the jurisprudential doctrine of the Supreme Court on the principle of the best interest of the minor (article 39.3 of our Magna Carta) as has been collected, among others, in Judgments 582/2014, of October 27; 76/2015 of February 17, 2015; 621/2015 of November 12; 15/2016 of February 1; 658/2017 of December 1 and 93/2018 of February 20, issued by the Civil Chamber of the Supreme Court and which we have already reviewed regarding the interest of the minor protected by Organic Law 8/2015, of July 22 , with less than five years from its entry into force".

2.- The proceedings were sent by the Provincial Court to this Chamber, and the parties were summoned to appear before it. Once the proceedings were received in this Chamber and the parties appeared before it through the attorneys mentioned in the heading, an order dated March 24, 2021 was issued, the operative part of which is as follows:

"1st) Admit the appeal filed by the procedural representation of D. Teodoro and D.ª Casilda, against the sentence handed down on December 28, 2018 by the Provincial Court of Madrid, Section Eight, in appeal no. 652/2018, arising from ordinary trial no. 267/2017 of Court of First Instance no. 8 of Madrid.

2nd) Open the period of twenty days, counting from the notification of this order, for the appealed party to formalize in writing their opposition to the resources. During this period the actions will be manifested in the Secretariat.

In accordance with the provisions of art. 483.5 of the LEC against this resolution there is no appeal."

3.- The Prosecutor's Office was notified to formalize its opposition, which it did by presenting the corresponding brief.

4.- By ruling of July 9, 2021, the rapporteur was appointed as rapporteur in this process and it was agreed to resolve the appeal without holding a hearing, indicating for a vote and ruling on September 21, the date on which has taken place through the videoconference system enabled by the Ministry of Justice.

FUNDAMENTALS OF LAW

FIRST.- Relevant background

For the decision-making purposes of this appeal we must start from the following background:

1st.- The claim of the parents of the minor

The spouses Mr. Teodoro and Mrs. Casilda submitted an application to the Civil Registry to change the first surname of their daughter Elisenda, born on NUM000 of 2015, when she was only three days old. The claim exercised consisted of adding to the first surname of Father Teodoro, his second surname Jose María, so that the surname of the minor would be Elisenda.

The reason for this was that the second surname of Father Jose María, who is of Spanish origin, with a proven age of more than 300 years, ran an obvious risk of disappearing, since, according to a certificate from the National Institute of Statistics, dated February 27, 2017, in Spain there were only 9 people who had it as their first surname and another 11 as their second. The petition was made under the provisions of arts. 57 and 58 of the Civil Registry Law of June 8, 1957 (hereinafter LRC), as well as based on arts. 205, 206 and 208 of its Regulations approved by Decree of November 14, 1958 (hereinafter RRC).

2nd.- The resolution of the General Directorate of Registries and Notaries.

With a favorable report from the Public Prosecutor, the request made to the General Directorate of Registries and Notaries (DGRN) was submitted, which issued a resolution of December 23, 2016, in which it denied the request made, with the following arguments:

"ll.- That, in order for the Ministry of Justice to authorize a change of surnames through the procedure that has been requested, the aforementioned provisions establish a series of requirements due to the stability that the signs must have of identification and differentiation of people, removed from the autonomy of will of individuals.

III.- That the arts. 57.1.º LRC and 205.1.º RRC require that the surnames in the proposed form constitute a factual situation not created by the interested party and, therefore, it must be proven that the person affected by the change uses and is socially known by the surnames that they are requested for it and that said use and knowledge have not been provoked on purpose to achieve the modification.

IV.- That no evidence has been provided to prove that the minor is known by the surname Elisenda that is intended for her but that, even if it had been presented, when the minors are so young at the time the that the file is started -in this case, four days- it is the constant doctrine of the General Directorate to understand that the situation has in fact been created by the parents in order to promote the change, because there could have been no use by the child born of the proposed surnames.

V.- That, although articles 58 LRC and 208 RRC allow the change without the concurrence of the factual situation generally required in art. 57.1.º LRC when the modification is intended to prevent the disappearance of a Spanish surname and from what was stated in the initial letter and from the documentation provided to the file it is proven that Jose María is at risk of disappearance, the adoption of the adoption of the different last name Teodoro.

VI.- That, if what is desired is to legally transmit the surname Jose María to the daughter, in order not to lose it in the family environment or, as a result, at the national level, it would be enough for the promoter to formalize the inversion of the surnames that it bears by means of a simple declaration before the person in charge of the Civil Registry of the domicile (art. 198 RRC) and said change would reach the descendants subject to parental authority (art. 217 RRC)".

3.º.- The claim filed and opposition from the Public Prosecutor's Office and the State Attorney's Office.

The plaintiffs filed the corresponding lawsuit against said resolution, in which they considered, in summary, that the requirements were met to proceed with the aggregation of surnames requested in accordance with the Civil Registry legislation.

First of all, since it was not necessary to observe the first requirement of art. 57 LRC, regarding the fact that the surname in the proposed form constitutes a factual situation not created by the interested party, since, in accordance with art. 58 LRC, its concurrence is waived when the intended change or modification responds to the purpose of avoiding the disappearance of a Spanish surname, whose risk of disappearance is not questioned by the resolution of the General Directorate.

Also, the other two requirements were observed, since the surname belongs to the ancestors of the minor, and, in addition, it comes from the line corresponding to the surname that is being altered, that is, from the father. In such a way, that the girl would bear the aggregate surnames of her parent as the first, as well as the second, the first surname of her mother.

It was also reasoned that the formal obstacle that the compound surname is an impediment to the interested change is not shared, because then the aggregation allowed by art. 206 of the Regulation would be meaningless.

It is denied that this was done for spurious purposes and that changing the order of the father's surnames is an option that cannot be imposed, due to the serious distortions that it would cause in legal transactions, unlike the girl who, being At such a young age, the change would not cause any kind of harm, as well as that the interested aggregation fulfills the intended purpose of preserving the surname Jose María.

The State Attorney's Office reproduced, in its response to the lawsuit, the arguments of the General Directorate, and the Public Prosecutor, without a specific request in this regard, requested that it be considered as person and the response process evacuated.

4th.- The judgment of first instance.

Following the procedure, in all its procedures, a sentence was handed down by the Court of First Instance no. fulfilling an identifying function of public order and that, under such criteria, article 58 of the LRC cannot be considered to be applicable, when the endangered surname Jose María does not literally coincide with the one that Teodoro is intended to impose, existing In addition, a simple way, to avoid said extinction, which is the investment by the father of the order of their surnames.

5.º.- The appeal

The plaintiffs filed an appeal against said sentence, which was opposed by the Public Prosecutor's Office and the State Attorney's Office.

The latter indicated that the requirement that the surnames in the proposed form constitute a factual situation not created by the interested party did not meet; since such a nomen only arises from the sole and exclusive desire of the parents that her daughter adopt the compound surname, resulting in the fact that, due to her young age, she has not been known by the same name before.

It was also held that the surname Teodoro is not the surname Jose María, which is intended to be preserved, since it is an autonomous surname and different from any other formulations of the same, which, constituting an identifying unit, allows a filiation to be differentiated with with respect to others against third parties. It is a fraud of the law to evade the appropriate legal channel, such as the inversion of the order of the promoter's surnames before the person in charge of the Civil Registry (art. 198 RRC), a change that extends to his descendants (art. 217 RRC).

The Public Prosecutor's Office, accepting the arguments of the State Attorney's Office, requested confirmation of the appealed sentence.

6.º.- The judgment of the Provincial Court of Madrid.

Section 8 of the Provincial Court of Madrid heard the appeal, which issued a ruling in which it dismissed the appeal filed, expressly accepting the arguments of first instance.

It was reasoned that the requirement of art. 57.2 LRC, regarding the fact that the surname or surnames that are being modified legitimately belong to the petitioner, which was motivated as follows:

"[...] in our law, as imposed by article 109 CC, the affiliation determines the surnames in accordance with the provisions of the law, if the affiliation is determined by both lines, the father and the mother of By mutual agreement, they may decide the order of transmission of their respective first surname, before registration. If this option is not exercised, the provisions of the law will govern, imposing on the newborn the surnames that correspond to him according to affiliation. If the affiliation is determined by both lines, as in this case, it will be both parents who, before the registration, decide the order of transmission of their respective first surname and the foregoing assumes that every person is legally designated by two surnames (arts. 53 and 55 LRC. and 194 RRC.)".

And adds:

"The foregoing assumes that in this case, the father's second surname does not legitimately belong to the minor, thus failing to comply with the requirement that is demanded for the intended modification of surnames to be admitted, having to be the parent, whoever, if applicable, changes the order of their surnames, as suggested in the resolution that provides the basis for the contested Judgment".

The sentence of the Hearing concludes, reasoning:

"All of the above prevents accepting the reason, since in the appealed Judgment the claim is dismissed, considering the non-compliance with the requirement of article 58 LRC and that it is highlighted that the surname that is in danger of disappearing and the one that is to be imposed on the minor are not the same and with respect to the rest of the requirements it is established that the interpretation of the regulations in this matter must be restrictive and that in this case the assumption that the legislator intends to resolve does not occur. , which are the situations that arise spontaneously in the use of surnames, which implies that it cannot be considered, as alleged, that the requirements that the action demands were not analyzed".

The plaintiffs filed a cassation appeal against said sentence.

7.º.- Brief statement of the opposition of the Public Prosecutor to the appeal.

The Public Prosecutor, in its opposition to the appeal, in what interests us now, after the allegation of the concurrence of formal obstacles to admissibility, considered that the concurrence of the requirement of art. 57.1 LRC, since for this it would be necessary, as is the result of art. 58, that it be carried out to avoid the disappearance of a Spanish surname, and that this purpose is not achieved by joining one surname to another, not even placing it in the first place, since such a procedure does not seem to allow its conservation, since it What it actually does is create a different one, defeating the purpose of the exception. However, the Public Prosecutor does not agree with the judgment under appeal, in the sense that the requirement that the surname to be modified legitimately belongs to the petitioner does not meet. In this regard, DGRN resolutions are cited, which interpret this second requirement in the sense that it is present when the surname has belonged to one of the petitioner's ancestors. Nor is the concurrence of the third party of the requirements of art. 57.

In short, the Public Ministry concludes that, only in the event that art. 58 LRC, the estimation of the reason would proceed, for which, at the discretion of said ministry, its dismissal is requested.

SECOND.- The appeal and opposition to its admissibility

The first reason is based on the violation of articles 57 and 58 of the Civil Registry Law of June 8, 1957 and violation of articles 205, 206 and 208 of the Regulations, which develops it, approved by Decree of date November 14, 1958, concurring appeal interest, since the appealed judgment of the Provincial Court of Madrid contradicts the doctrine established by other Provincial Courts, on the legal significance of the surname legitimately belonging to the petitioner for the purpose of joining it to the another at risk of extinction.

In order to address the issue concerning the existence of formal obstacles to admissibility opposed by the Public Prosecutor, we must start from the doctrine expressed in judgment 292/2017, of May 12, in which we state:

"To decide on the opposition to the admissibility of the appeal, the doctrine of this court on absolute and relative causes of inadmissibility established in the Plenary Order of November 6, 2013 (appeal 485/2012) and also assumed in subsequent judgments such as 351/2015, of June 15; 550/2015, of October 13; 577/2015, of November 5; 188/2016, of March 18; 331/2016, of May 19; 579 /2016, of September 30; 667/2016, of November 14; 727/2016, of December 19; 2/2017, of January 10 and 49/2017, of March 2.

According to this doctrine, there are absolute grounds for inadmissibility of the appeal when procedural and not substantive reasons are raised, when the factual basis of the appealed judgment is not respected and when the document lacks the necessary clarity and precision in the identification of the normative infringement (art. 477.1 LEC), the individualization of the legal problem raised (art. 481.1 and 3 LEC) and the sufficient justification on the alleged infringement of the legal system (art. 481.1 LEC).

On the contrary, there are relative causes of inadmissibility when, apart from irrelevant formal elements, or in any case secondary, a substantive legal problem that presents, from a reasonable and objective analysis, an appeal interest, arises with sufficient clarity. According to judgments 149/2017, of March 2, 2/2017, of January 10, and 667/2016, of November 14 (quoting 439/2013, of June 25) "it may be enough to pass the admissibility test and allow the substantive examination of the matter, the correct identification of certain legal problems, the even indicative exposition of how the appellant sees the appeal interest and an adequate exposition that reveals the consistency of the substantive reasons. In such cases, a rigorous interpretation of the admissibility requirements that prevent access to extraordinary remedies is not adequate to the requirements of the right to effective legal protection of the sentence."

In this case, there are divergent criteria of the Hearings regarding the interpretation of art. 57 of the LRC, on a legal question of a material or substantive nature, with respect to which there is no jurisprudence of this Chamber, and also the appeal, as it has been formulated, has allowed the appealed party to record the specific grounds for challenge and, consequently, refute them without any limitation, as is the result of the complete opposition document of the Public Prosecutor, which exhausts the possibilities of the debated matter.

In short, the requirements that the control, carried out by the Supreme Court, falls on issues of a legal nature, not factual, aimed at the correct interpretation of legal norms, that allow establishing jurisprudential doctrine on the precepts of our civil registry legislation invoked as the basis of the appeal filed.

THIRD.- Examination of the first of the reasons for the appeal

1.º.- The regulatory framework.

The change of surnames requested by the parents, as legitimate legal representatives of their minor daughter (art. 154 CC), is conditioned to the concurrence of the requirements established in arts. 57 and 58 of the LRC of 1957 and concordant of its Regulations.

In effect, according to the first of the aforementioned precepts, as well as art. 205 of the Regulations, it turns out that the Ministry of Justice can authorize changes of name and surname, previous file instructed in a regulatory manner, provided that the following requirements are met:

First. That the surname in the proposed form constitutes a factual situation not created by the interested party.

Second. That the surname or surnames that are being combined or modified legitimately belong to the petitioner.

Third. That it comes from the line corresponding to the last name that is to be altered.

However, according to the first paragraph of art. 58 LRC and its concordant art. 208 of the CRR, it will not be necessary to meet the first requirement of article 57 LRC, transcribed above, to change or modify a surname contrary to decorum or that causes serious inconvenience, or to avoid the disappearance of a Spanish surname. In accordance with the aforementioned art. 208 RRC, "it is understood that a surname causes serious inconvenience when, for whatever reason, it brings dishonor with it".

Therefore, the causes that make it possible to change surnames, without the need for the requirement that the surname in the proposed form constitutes a factual situation not created by the interested party, are that the surname is improper, dishonorable or run the risk of disappearance, if it is Spanish.

The postulated changes of surnames, as specified in art. 206 RRC, may consist of segregation of words, aggregation, transposition or deletion of letters or accents, deletion of articles or particles, translation or graphic or phonetic adaptation to Spanish languages, and substitution, preposition or aggregation of other names or surnames or part of surnames or other analogues, within the legal limits. However, the unions may not exceed two words, without counting articles or particles.

With the support of such legal provisions, we have to determine if the appeal of cassation filed is appropriate, a question that we must answer affirmatively, based on the following set of arguments.

2nd.- The aggregation of surnames as a mechanism for the conservation of the surname at risk of disappearing.

Changes of surnames can be carried out, as a result of the aforementioned precepts, through their aggregation to another. Adding is the act of uniting, joining or annexing. This possibility is not very conducive in cases of improper or dishonorable changes of surnames, if it is intended to avoid the pernicious nature that said family names have for the people who bear them and identify with them in legal transactions, insofar as Through their annexation to another, they retain their outrageous characteristics, causing shame or dishonor, which justifies the claim of change.

Nevertheless, aggregation is a more suitable and foreseen regulatory mechanism without reservations, for the intended purpose of preserving a surname at risk of disappearing, even when it is true that a compound surname is not identical to an individual one; However, in such a way it can be preserved in the identifying legal traffic. On the other hand, furthermore, art. 57.2 LRC and its concordant art. 208 of the RRC, expressly provide for such a procedure as a legitimate normative vehicle to preserve a family name in the process of disappearing.

For this reason, we cannot share the argument that it constitutes an insurmountable legal obstacle, the circumstance that a simple surname (Jose María) is not the same as that constituted by the union or annexation to another family name (Teodoro); since the aggregation of surnames is expressly contemplated as a legitimate instrument of such change.

In short, it does not cease to constitute a legal option to preserve the surname and, in addition, the annexation achieves a greater virtuality or justifying reason for being, than in the other two cases contemplated in art. 58 LRC, relating to unseemly or dishonorable surnames for the reasons stated above.

3rd.- The legal waiver of the requirement that the surname in the proposed form constitute a factual situation not created by the interested party.

In effect, when the assumption contemplated in art. 58 of the LRC, concerning the fact that the change responds to the purpose of preserving a Spanish surname at risk of disappearance, the latter danger that nobody disputes and that with notoriety results from the INE certification, it is not required that the one contemplated in the first numeral of said precept, which is that the surname in the proposed form (Teodoro) constitutes a factual situation not created by the interested party, since its application is expressly excluded, for such cases, in art. 58 of the LRC and concordant art. 208 of the CRR.

4.º.- Examination of the second requirement of art. 57 LRC, regarding the fact that the surname or surnames that are being combined or modified legitimately belong to the petitioner

The ruling of the High Court rules out its concurrence with the quote of art. 109 of the CC, according to which the surnames of a person are the first of the father and the first of the mother, in the order determined by them, but not the second of the parents, which would not meet the requirement of belonging.

This argument cannot be shared, since Jose María is a surname that, for more than 300 years, has belonged to the girl's family and that constitutes the second of her father's surnames, as it appears in the minor's birth certificate.

In this sense, the criteria of the DGRN is consolidated, of which resolution 9/2009, of September 2, is a manifestation, which states in this regard that: "one of the requirements established by the Civil Registry legislation to authorize the change of surnames is that those requested legitimately belong to the petitioner (articles 57.2 LRC and 205.2 RRC), for which it must be proven that they appear in the birth registration of one of their ancestors", in the same sense resolution 8/2015, of September 18.

It is obvious, then, as the Public Prosecutor expressly points out, that said requirement is also met.

5.º.- The requirement that it comes from the line corresponding to the last name that is being changed.

The third of the requirements contemplated in art. 57.1 of the LRC, concerning the fact that it comes from the line corresponding to the surname that is being altered, is not questioned and is also duly observed.

6.º.- Concurrence of a just cause, non-existence of damage to a third party and fraud of law.

Finally, it remains to be analyzed whether there is just cause, whether the intended change harms a third party or constitutes a fraud of the law, inasmuch as, through the chosen regulatory mechanism, it is intended to evade the application of art. 198 RRC, which allows conservation by altering the order of the father's surnames (arts. 198 RRC), which would thus pass from Teodoro to Jose María, with the correlative transmission to his daughter (art. 217 RRC) .

When addressing the analysis of such issues, we consider that there is a just cause, which is the conservation of a Spanish surname at risk of extinction, elevated to legal rank as a legitimate reason to operate the change of surnames. There is no record, at any time, that the request made responds to a spurious reason, but rather to keep a family name. We also do not appreciate, nor has it been suggested, that said alteration could harm a third party.

In the same way, we do not consider legal fraud, but rather a legal option, which is duly justified in this case. Indeed, the aggregation of surnames is a normative mechanism expressly provided for the conservation of those who are in obvious danger of disappearing. It is true that, to avoid this, it would be possible to resort to the legal possibility of altering the order of the applicant's surnames, which would trigger the legal effect of the correlative transmission of such change to his daughter.

Now, in this case, the damages that the appellant would suffer are evident, since, due to his age, life history and professional activity as a practicing lawyer, he is identified in legal transactions through the use of the surnames Teodoro, which makes up a consolidated factual situation, whose alteration would generate evident damages easily representable, in contrast to the very minor inconveniences that his daughter Elisenda may suffer, who was only a few days old at the time of the beginning of the present file and, therefore, whose identity was not consolidated with their original surnames derived from the application of art. 109 of CC.

It is, therefore, that the best interest of the minor is not pejoratively affected, so that in a hypothetical irreconcilable collision with the claim of their parents, which is not the case, the maintenance of the current surnames of the girl.

According to art. 6.4 of the CC, the acts carried out under the text of a rule (coverage rule) that pursue a result prohibited by the legal system, or contrary to it, will be considered executed in fraud of law and will not prevent the proper application of the rule that he tried to evade.

Regarding the interpretation of said precept, we have indicated in judgment 1169/2000, of December 21, that:

"[...] "... that legal fraud is synonymous with damage or harm achieved through a means or mechanism used for that purpose, valid both as subterfuge or ruse, with infringement of general legal duties that are imposed on people, and it implies, basically, a "contra legem" act, for evading the rules of law, but without a frontal confrontation but, on the contrary, looking for apparent coverage rules or indirect coverage, respecting the letter of the norm, but violating its spirit, so that the "fraus alterius or fraus homini" implies, in general, a "fraus legis", which requires as an essential element, a series of acts that, despite their appearance of legality, violate the ethical content of the precepts in which they rely, whether or not they are aware of evading the law, as the Supreme Court has repeatedly declared in Judgments of February 6, 1957, June 13, 1959, 1 April 1965, May 2, 1984, February 1, 1990, June 20, 1991, and March 17, 1992; with which it has to be seen if the budget of the denounced fraud is present or absent, which is none other than the achievement of a result prohibited by the legal system..." (S. 7-29-96)".

As stated, for its part, in judgment 422/2011, of June 7: "Arguments related to legal fraud, abuse of rights or good faith cannot be accepted, since this is not the case that with violation of article 6.4 CC, a result prohibited by the legal system is pursued", there is not even an objective abuse of the coverage rule.

In fact, in this case, the change in the order of surnames in general is contemplated in art. 198 RRC, and the change of surnames, specifically, due to risk of disappearance in arts. 57 and 58 of the LRC. They are complementary precepts with their own field of action, and although it is possible to preserve a surname through the voluntary inversion of their order by way of art. 198 and its subsequent transmission to descendants (art. 217 RRC), the legal option of carrying out such a change by adding surnames in the form is not prohibited by law, but expressly contemplated, nor is it contrary to law. interested by the actors, under the aforementioned precepts of the LRC, which does not imply abuse of rights, or obtaining an illegitimate result prohibited by our legal system.

FOURTH.- Estimation of the appeal, absence of legitimate interest in the examination of the other grounds for appeal and assumption of the instance.

The estimation of the first of the grounds of appeal determines that the other two grounds of appeal lose their legal interest.

It is appropriate, consequently, to assume the instance, estimate the appeal against the sentence issued by the Court of First Instance No. 8 of Madrid, which is revoked, and, as it is in accordance with the Law, the petition formulated by the plaintiffs, it is appropriate to uphold their claim, leaving without effect the decision of the resolution of the DGRN, current General Directorate of Legal Security and Public Faith, for the purpose of recognizing the change of surnames postulated by the plaintiffs, as legal representatives of their daughter minor, so that the first of her last names is Teodoro, so that the girl is identified in legal transactions with the last names Elisenda.

FIVE.- Costs and deposit

The estimation of the appeal leads to the fact that no special order on costs is made. Nor with respect to the appeal, to be estimated. All this in application of art. 398 LEC. Likewise, the corresponding sentence in the first instance is not appropriate, since the dispute is about a legal issue devoid of jurisprudence of this room and based on the existence of divergent criteria of our Hearings (art. 394 LEC).

Regarding the return of the deposit constituted to appeal, the legal regime of Additional Provision 15, section 8 of the LOPJ applies, and, consequently, said refund is made to the appellant.

F A L L O

For all of the above, in the name of the King and by the authority conferred on him by the Constitution, this chamber has decided:

1st- Allow the appeal filed by the plaintiff against judgment 613/2018, of December 28, issued by section 8 of the Provincial Court of Madrid, in the appeal 652/ 2018, without imposition of the corresponding costs and with return of the deposit constituted to appeal.

2nd- To marry the aforementioned sentence, and with the approval of the appeal filed by the plaintiffs, we revoke the sentence of March 23, 2018, issued by the Court of First Instance No. 8 of Madrid and, in In its place, we dictate another by virtue of which, with revocation of the resolution of the General Directorate of Registries and Notaries of December 23, 2016, it is appropriate to authorize the change of the first paternal surname of the minor Elisenda, who will go on to bear the surnames Elisenda as first and Casilda as second, taking in exchange the corresponding modifications in the inscriptions in the Civil Registry, all without making a special pronouncement on the costs of both instances.

The corresponding certification is issued to the aforementioned court, with the return of the records and the courtroom roll.

The Hon. Mr. D. Antonio García Martínez voted in the room but could not sign due to therapeutic indication related to COVID-19, the Hon. Mr. President of the Section D. Francisco Marín Castán (art. 204.2 LEC).

Notify this resolution to the parties and insert it into the legislative collection.

So agreed and signed.