CHAPTER 11 .- Consumer Law Analysis of this
law approaches that, with increasing intensity, especially during the last decades consumers have been made in defense of their rights, have forced governments to consider their consequences and to promote legislative action. So shy at first, and in greater depth, the last time.
In this context, it gives the Law No. 19,496. Their application for some years, found some errors and omissions that were the basis for approving and publishing, dated July 14, 2004, Law No. 19955 which modified it in various fields, especially with regard to regulating the organizations for rights consumer, the establishment of actions to defend the collective interest or diffuse enlargement of the powers of the National Consumer Service.
has seen fit to describe the most important aspects of this body of law because its application is directly related to the ultimate consumers of the products, ie to the residents of the commune. Faced with this reality, it is obvious municipal intervention, since one or other or adviser should support the community in the use of tools and procedures provided in the law and, therefore, is useful and recommended to his knowledge, especially by officials to be involved in certain procedures established by law.
PURPOSE AND SCOPE
As a result of these developments can be mentioned that the legal text, recently published, is intended to regulate relations between suppliers and consumers, to establish infringement against consumers and identify the procedure in these subjects. Its scope extends to what are called mixed actions, ie those who have a commercial purpose for civilian provider and a consumer. In other words, it refers to all acts or contracts in which the consumer is and acts as the final recipient of goods or services concerned
Notwithstanding the special characteristics of certain acts, subject to its provisions marketing acts tombs or graves, acts or contracts where the supplier is obliged to provide the consumer or user's use or enjoyment of a property for specific periods continuous or discontinuous, not exceeding three months, provided that they are furnished and for rest and tourism educational activities provided by schools, colleges and universities, contracts of sale of housing and health benefits.
However, it should be noted that the law retains its character as an extra, it does not apply to activities governed by special laws, except in matters that its provisions do not provide. In any case, it should be noted that this residual character does not apply in respect of rules governing collective or diffuse interests and legal actions arising from them, which are of general application.
UPDATE TERMINOLOGY AND CONCEPTUAL
The law defines various terms, among others, what is meant by consumers or users, the exercise liberal professions, the basic information to be provided by commercial providers, the implications "objective conditions" of advertising in contracts, etc.
also points out two interesting aspects to be considered in any transaction:
The consumer's right to free choice of good or service, and Silence is not acceptance of consumption acts.
other hand, empowers the consumer to regret having signed the contract in certain specific cases mentioned. Among them, identifying, buying goods and contracting of services in meetings convened by the supplier contracts concluded by electronic means or through catalogs or through distance communication, contracts wholly or partly covered by credit extended by the supplier or a third party agreement between consumer and provider, enrollment in institutions of higher education, etc. Finally
incorporates
certain matters to be contained in contracts of adhesion to avoid the imposition of unfair terms against consumers. It should be noted that contracts of adhesion are those in which there is no free discussion or counteroffer by the consumer.
OTHER CONSUMER RIGHTS
Redress
It establishes the right of consumers to redress and adequate and timely compensation for all material and moral damages for breach of any of the obligations of the supplier. By using this right, the consumer may apply, interchangeably or in combination, the seller, the manufacturer or importer. Made a choice, may not derive the required claim. If the consumer requests the repair only the seller, it shall enjoy the right of recovery against the manufacturer or importer. Right to reinstatement
The consumer is entitled to the replacement of the product or, alternatively, to opt for the reduction of its value in the purchase of another or the return of the price paid in excess, the quantity or the net content of a product is less than indicated on the packaging or packaging. Shall be jointly liable for damages caused to the consumer, the supplier who has sold the goods or products and the importer who has sold or provided. Warranty
is determined that the policy term runs since she has been dated and stamped at the time of delivery of the goods. It is also accepted with the same effect, although she may not be dated and stamped is displayed together with the corresponding invoice or bill of sale.
The fine print of contracts are required for membership, besides being written so clearly legible and the Castilian language, must have a font size not less than 2.5 mm. Second selection
The provider must explicitly inform consumers when products with a deficiency expended, used or refurbished, or offer products in the manufacture or processing have used parts or used parts. Promotions
always be expressed in a clear and precise bases and the term of the advertising itself is not enough to completely understand this obligation by the mere fact of having deposited the bases before a notary
Information in English
All instructions with the product whose use is potentially dangerous to health or safety of consumers or the safety of their property, must be in English. Consumer credit
All consumer transaction in which the supplier provides credit direct to the consumer, must make available: The spot price of goods or services concerned, and information about the amount of the contributions of a possible credit. The interest rate is applied to the balances corresponding price, which must be recorded on the ticket or proof of each transaction. The amount of the following amounts, other than interest rate:
for the respective Tax credit transaction
Notary fees expenses inherent in the assets received as collateral
Insurance
expressly accepted by the consumer
Any other amount allowed by law
The alternative amount and number of payments to be made and their frequency
The total cost for each alternative consumer credit, the amount corresponding to the amount of fees to pay, and penalty interest rate for non-compliance and the system of calculating the expenses incurred for the collection of bad loans out of court, including the fees that apply, and the methods and procedures of that collection. Sanctions
The law states that violations are punished, as a general rule, a fine of up to 50 UTM.
however, notes that in the case of false or misleading advertising disseminated by media social, the offender liable to a fine of up to 750 tax units. If that affects the qualities of products or services that affect the health or safety of the public or the environment, to apply a fine of up to 1,000 units monthly tax.
However, the court noted that, for the application of fines should take particular account of the disputed amount, the degree of negligence incurred by the offender, the severity of damage, the risk that was exposed the victim or the community and the economic situation of the offender.
Advocacy consumer
promotes and enables the creation of consumer associations, which means, like any organization constituted by natural or legal persons, independent of any economic interest, commercial or political, which aims to protect, inform and educate consumers and assume the representation and defense of rights of their members and consumers who request them, all independent of any other interest.
provides that such associations are governed by the provisions of this law, and it matters not covered by Decree Law No. 2,757 of 1979, the Ministry of Labor, Labor Unions Act, subject to special regulations which provides for other subjects such as grounds for its dissolution, new features that can take over and play and serious consequences of repeatedly violating the prohibitions that apply to them.
Interestingly, the establishment of a competitive fund to finance its initiatives, which shall consist of contributions each year are referred to the budget of the National Consumer Service and from donations made to that effect non-profit organizations national or international.
procedures generated by the application of the law
such action shall lie against acts or practices that affect the exercise of any right of consumers
The non-compliance will result in actions designed to punish the provider to incur infringement, unfair ring incorporated in contracts of adhesion, to obtain the benefit of the obligation breached, stop the act that affects the exercise of consumer rights, and obtain appropriate compensation for damages or redress.
The exercise of actions can be performed individually or on behalf of collective or diffuse interests of consumers
shall have jurisdiction of actions, the local police magistrate that corresponds to the commune in which the contract was concerned , the offense was committed or begun its implementation, the choice of the actor. In the case of contracts concluded by electronic means, where it is not possible to determine the above, will judge him in the district where the consumer resides.
procedures can be initiated on demand, complaint or grievance. In matters not provided, we consider the provisions of Law No. 18,287 and in lieu thereof, to the rules of the Code of Civil Procedure.
Presumably representing the supplier, and that as such it requires the person who normally carries out management or administrative functions on behalf of or representing the provider if it is a legal entity. If the defendant is a legal person, the request is notify the legal representative thereof or to the local head of where you purchased the product or service was rendered. Shall be the duty of all suppliers in a prominent display of complete individualization local who fulfills the role of local chief, indicating at least the full name and address.
Where the complaint, grievance or lawsuit lacks credible basis, the judge in the ruling at the request of a party, declare it as reckless. Made such a statement, those responsible will be punished according to general or special rules governing situation.
If during a procedure, the judge notes the existence of goods liable to cause harm, custody order in court, if it thinks fit and determine the measures that are necessary for the safety of persons or property.
causes which shall not exceed ten monthly taxation units shall be processed as a single process instance, so that all decisions issued therein shall be final. Details
and describes a new trial procedure for the defense of collective or diffuse interests of consumers. This procedure applies when dealing with an act of common consumption of the same goods or service involving more contractors face the same supplier (interest group), or for an indeterminate group of consumers affected in their rights, without which there is a contractual relationship between them (diffuse interest). This procedure is divided into two phases: a prior declaration of the breach of collective or diffuse interests, and a subsequent conviction or repair.
The procedure ends with the issuing of a statement
Validity of the law
Its provisions came into force upon its publication in the Official Journal on July 14, 2004, with the exception of the rules regarding the consumer credit-reporting of the interest rate applicable to balances of price information amount of the sums other than interest rate, and the total amount payable by the consumer-credit each alternative, which came into force , only on October 13, 2004 passed and the rule relating to the fine print in contracts of accession which shall take effect on July 15, 2005. Chapter 12 .-
Conclusion We have tried to analyze, from the general to the particular problem of the formation of consent and validity of contracts of adhesion
We have argued that the principle of autonomy not be met fully in force in that there is no freedom to create such relationships, and freedom to contract, freedom of contract nor on the content of the contract.
These contracts "contracts of adhesion", also contain in general. Consequently, if all the budgets of unfair Governing the general rules of law.
In general, and from the standpoint of the contractor who does not participate in drafting the contract, the contracts of adhesion are risky because they facilitate and encourage the inclusion of unfair terms. There is now considerable consensus on the fact that incorporation unfair terms in this business is not related to monopolistic or oligopolistic position of the supplier, but with the information asymmetries that almost inevitably arise between supplier and user.
Moreover, as noted, the time of the formation of consent is an issue not resolved in our legislation. The Commercial Code maintains since 1865 the criteria for recruitment between absent and present, and making offers to people certain or uncertain. And the ways they operate and do business have changed.
The Consumer Protection Act seeks to clarify these issues, with the reformulation and we must accept as valid its supposed to be strict law which must be respected.
Finally, we argue that even if changes are needed in Chilean legislation on aspects of the formation of consent, for which in future publications as this is only the beginning of a series that develop in my career, we stick to address these issues specific to the "Advocacy." Bibliography
13.1 .- ACCESSION AGREEMENT
Author: MAURICE R. TAPIA, JOSÉ MIGUEL VALDIVIA O. Edition: 1 edition, 2002, 13.2 .-
LAW JOURNAL
Studies Barroilhet Ms. Silva, Paula. Attorney and candidate for Masters, University of Chile. Counsel National Chamber of Commerce.
13.3 .- 'contracts. "
Alessandri, Arturo. Editorial Jurídica de Chile, p. 11. (Note: this book has no date and issue number).
13.4 .- "CONTRACTS GENERAL PART.
Santa María López, Jorge. Tomo I, Editorial Jurídica de Chile. Second updated edition, Santiago, 1998, p. 233.
13.5 .- NATIONAL PORTAL OF CONSUMER
Government Chile;
13.6 .- 'CIVIL AND COMMERCIAL CONTRACTS.
Library of congress, Contarino, Silvia. Editions palm Buenos Aires, 2000, pp. 55 et seq. Similarly, Lopez Santa María, op.cit., P. 261 et seq.
13.7 .- Analysis of the new Law on consumer
13.8 .- Study of Consumer and contract law
Don Mario Cardenas Bustamante, Local Police Judge Puerto Octay Secretary of Chapter X and XI of the National Institute Local Police Judges Chile. Exhibition presented at the Seminar on Consumer Law at the Threshold of XXI Century, organized by the National Consumer Service, Tenth Region, and the presence of Judges, Clerks Lawyers and special guests, held in Puerto Montt, 13 November 1998. 12/07/1998 complemented the;
13.9 .- Study conducted the educational and communications technology direction of the Metropolitan Technological University;
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