Search Results
Search Results
-
IS IT POSSIBLE TO APPLY THE ECONOMIC ANALYSIS OF CONTRACT LAW AND CONSUMER LAW?
This article aims to justify the application of the L&E, both to Chilean contract law and consumer law, through the principles of good faith and consumer protection, respectively. This work highlights the application of the principle of efficiency as a relevant criterion in contract matters, and above all, in relation to consumer law. Although the justification for the application of the L&E to contracts and consumer law is the same, its application is different. In this way, the L&E would be applied to contract law through the principle of good faith, or the theory of general clauses, recognizing the principle of efficiency as a contractual principle, and to consumer law through the principle proconsumer.
-
THE CONCEPT OF A COMPANY FOR ECONOMICS CRIMES AND ITS IMPLICATIONS FOR INDIVIDUALS AND LEGAL ENTITIES
The purpose of this paper is to determine the meaning of the term ‘company’ for the purposes of the law on economic crimes. This is particularly relevant with respect to crimes in the second and third categories, and to a lesser extent the fourth. The relevance of the question is based on the fact that the legislator has used it as a structural or fundamental element for the delimitation of what is understood as an economic crime and, as a consequence of this, to activate the special statute of sanction and additional consequences to the sanction applicable to persons responsible for economic crimes. To answer this question, we first turn to extra-criminal legislation. Next, we analyze article six of Law 21.595 and the respective referral that this provision makes to Law 20.416. Based on this, we conclude that it is not possible to include corporations and foundations within the concept of company, with the consequences that this entails. Finally, we point out the impact that this technique produces to the criminal statute of legal persons that was also modified by the law on economic crimes.
-
FIXING A HOLE: THE NEW REGULATION ON RELATED PARTY TRANSACTIONS DISCLOSURE AND ORDINARY COURSE OF BUSINESS POLICY
Since its entry into force, it was evident that the regulation on related party transactions had a flaw that allowed its circumvention: the rules on ordinary course of business transactions and on reporting to the market of transactions that were not of a material amount. Time and empirical observation confirmed this finding. However, solving this gap was not easy, since the regulation of ordinary course of business transactions, particularly those that take place within corporate groups, must satisfy a dual purpose, which is difficult to balance: to avoid tunneling, but not to hinder the smooth functioning of the companies within these groups. This research paper demonstrates how the new regulation analyzed establishes a framework that allows companies to achieve both objectives, but warns that this, in part, depends on its proper application by the regulated corporations.
-
REVIEW OF THE EFFICIENT BREACH OF CONTRACT IDEA FROM A CONTRACT LAW PERSPECTIVE
The theory of efficient breach of contract is one of the core components of the economic analysis of contract law. This paper makes a review of this theory. On this respect, and starting from an instrumentalist perspective, consistent with law and economics, the paper claims that efficient breach is an inadequate approach towards the analysis of remedies for breach of contract.
-
UNFORESEEN EVENTS AND COVID-19: ON THE ROLE OF COURTS AND STATUES IN TIMES OF CRISIS
This article discusses the role of courts and legislators in the development of Chilean private law in the context a recent bill that seeks to enact the French théorie de l’imprévision in the Chilean Civil Code as a reaction to the economic effects of the COVID-19 crisis. On the one hand, it holds that the public discussion triggered by this bill has led to the emergence of a certain consensus regarding the convenience of accepting this theory, but that the most adequate path for this remains an open question. In this context and relying on elements of Comparative Law, Legal Theory and Law and Economics it argues that, in the Chilean case, the best route to bring this doctrine into the legal system is a legislative reform, but that the proposed bill does not have the technical depth required for it. On the other hand, it argues that general and unforeseen crisis, as that of the COVID-19, should be dealt by special emergency legislation, not by judicial or statutory general reforms aiming to introduce new legal paradigms.
-
SOME CRITICISMS TO THE COMMON LAW AND ESPECIALLY TO THE INCAPACITIES OF THE OLDER ADULT IN THE CHILEAN LAW
This work analyzes the old age, from the perspective of civil law and specifically from the capacity. In Chile there has been progress in the protection of the elderly from a public policy, but has not been the same concern with regard to older adults as subjects of law. The gaze of our legislation toward the elderly, from the capacity, is extremely limited and pays little respect for their individual rights. This conclusion can be reached after analyzing the rules governing the dementia –as a criterion for protection of the elderly and promotion of his diminished capacity–, and how it could be trying to achieve a greater autonomy in old age, through the regulation of the Civil Code, which shows how impotent in this regard.