Comparative Analysis Of Unfair Competition Between The Laws Of Colombia And Peru

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Comparative analysis of unfair competition between the laws of Colombia and Peru

Summary

The various behavior modalities that some subjects of a certain state exercise against the ordinary exercise of the economic activity of a certain sector, is the main trigger for an imbalance in the state economy, therefore, Colombia and Peru face aSimilar conflict in what includes the solution of measures that do not attempt against the exercise of economic functions of both the State and the population that lives in it, therefore, the present article is to fully analyze the governmental entities that protect theDevelopment of free competition, distinguish the restrictions made by each jurisdiction in relation to unfair competition and carry out a comparative analysis of the systems of these countries.

Keywords: unfair competition, competition, Superintendence of Industry and Commerce (SIC), National Institute for the Defense of Competition and Intellectual Property (Indecopi), restrictive practices.

Introduction

Competition is a right of great importance since it efficiently defines the development and economic impact it generates in a country, thus understanding the public administration of the Nation is responsible for creating measures that allow the right to properly develop the rightof free competition and guarantee economic development in the national territory, it is also the obligation of the State to restrict behaviors that generate negative impact on the economy of both people and the State. This article defines the right of free competition according to the constitutional regulations of these countries, some generalities of the entities that regulate the issue of unfair competition are explained and a comparative analysis of the regulation of the two countries will be made responding to the problem problemHow is unfair competition in the countries of Colombia and Peru regulates? Now, in order to talk about competition and unfair competition, it is necessary to define these concepts as follows:

Regarding the competition, the Political Constitution of Colombia in its article 333 mentions that: economic activity and private initiative are free, within the limits of the common good. For their exercise, no one may demand previous permits or requirements, without authorization of the law. Free economic competition is a right of all that involves responsibilities. The company, as the basis of development, has a social function that implies obligations. The State will strengthen solidarity organizations and stimulate business development. The State, by mandate of the law, will prevent economic freedom from being obstructed or restricted and will avoid or control any abuse that people or companies make of its dominant position in the national market. The law will delimit the scope of economic freedom when the social interest, environment and cultural heritage of the nation require it. (Political Constitution of Colombia, 1991)

Similarly, the Peruvian Political Constitution establishes in its article 59 that: the State stimulates the creation of wealth and guarantees freedom of work and freedom of business, commerce and industry. The exercise of these freedoms should not be harmful to morality, or health, or public safety. The State provides opportunities for overcoming sectors that suffer from any inequality;In this regard, it promotes small businesses in all its modalities. (Political Constitution of Peru, 1993)

The aforementioned means that freedom of competence is the exercise of economic activities exercised by any person or company without the intermediation of the State to some extent, when such activity generates an impact either the rights of another person or the business development of theState in a negative way there is talk of unfair competence, so it is the duty of the State to be guarantor of the rights that the Political Charter protects, restricting to some extent the way in which the exercise of commercial activities will be carried out and sanctioning to the extent ofThe possible acts carried out by legal or natural persons in order to acquire the dominant position of a certain economic sector.

However, it should be noted that the main entities responsible for providing security in terms of this matter in the two states are the Superintendence of Industry and Commerce (SIC) in Colombia and the National Institute for Defense of Competition and Property Protectionintellectual (Indecopi) in the Peruvian legal system which we will define below.

SIC and INDECOPI GENERALITIES

First, the Superintendence of Industry and Commerce (SIC) is an administrative technical agency of the State that is attached to the Ministry of Commerce, Industry and Tourism, was created by decree law no. 2974 of 1968, which, to this day maintains the function of fulfilling among other things, with the exercise of functions of free competition through inspection and surveillance.

The SIC has some areas that are distributed to carry out the fulfillment of its functions efficiently, each of them fulfills a different function of the other, but together they properly exercise the activities of protection of social economic and the State, these dependencies are:

  • Industrial property
  • Consumer protection
  • Competition protection
  • Jurisdictional matters
  • Personal data protection
  • Technical Regulations and Legal Metrology
  • Chambers of Commerce

On the other hand, the Institute for the Defense of Competition and the Protection of Industrial Property (INDECOPI) was created through the decree not. 25868 of 1992, among its functions is the protection of freedom of competence, promote economic growth, and ensure the well -being of people, this independent entity is directly attached to the presidency of the Council of Ministers. This entity has the following main areas:

  • Intellectual property
  • Buocratic barriers
  • Consumer protection
  • free competition
  • unfair competition
  • Bankruptcy
  • Dumping and subsidies

 

Unfair competition regime in Colombia

As Yuleimy Paola Quito Ibargüen (2017) mentions regarding the unfair competition regime, Colombia regulates through Law 256 of 1996 and in its chapter 2 the acts that compromise this area which are stipulated in article 8 and following to thewhich will mention.

  • Clientele deviation
  • disorganization acts
  • Confusion acts
  • Acts of deception
  • Discardit acts
  • comparison acts
  • Imitation acts

On the other hand, in terms of the jurisdictional procedure that is governed by unfair competence before the SIC, justice through Law 446 of 1998, granted the Faculty to the SIC to carry this type of processes due to issues of decongestion in decongestion inadministrative and jurisdictional matter.

According to Navarro Noreña, Jorge Enrique, Giraldo Escobar Kalev, Oramas Fonseca Marcela (2013), in administrative matters the process in general is supplied as follows:

  • The investigation can be initiated either ex officio, by part or by a third party.
  • The Superintendency may require the parties to complement the requirements that are the basis for executing the complaint or in case of obtaining additional information.
  • It is notified personally or by notice to those investigated, when investigation opens, this is susceptible to resources, in addition to third parties intervening, it is believed that the market has been affected in the field of unfair competition.
  • The Superintendency will establish a certain period for the investigated to close evidence in its defense
  • Once the tests are decreed and practiced.
  • The report is transferred to the parties.
  • The Advisory Council issues concept about the investigations that must be heard by the Superintendent.
  • Based on the report presented by the Delegate Superintendent, the Superintendent of Industry and Commerce will issue its decision, without the need to follow the arguments stipulated in the report, which is published by resolution.
  • The decision is divided into two, in administrative part and partly judicial
  • In the administrative part, the Superintendency has the competence to impose fines or sanction the legal representatives, administrators, managers, fiscal reviewers, who have incurred actions that protect the rules of unfair competition.
  • In judicial matters, judges will be able to know and impose obligations on unfair competence, declare nullity of the action to which the case initially knew.
  • If the decision is issued by the jurisdictional body, this will make transit to a judged thing, and given the decision, resources or actions will proceed.
  • The process can be ended abnormally when the one who committed the crime has and provides sufficient guarantees for the specific case.

 

Desleal competition regime in Peru

Regarding unfair competence, the Peruvian legal system establishes that it is reprimanded through the norms that are initially based on the Political Constitution, from these regulations some that regulate this issue are detached as is mainly the legislative decree no, 10442008.

This decree in the first extent establishes in article 6 that an act of unfair competition includes all kinds of behaviors that go to the contrary of good faith in commercial fields, (Guzmán Napuri, 2011, p. two). He mentions that good faith "implies the realization of activities in the market complying with certain principles that are considered indispensable for competition to function properly, directly linked in turn with the guiding principles of economic activity"

However, as soon as it refers to activities that are not exercised in good faith, Indecopi mentions that Legislative Decree No. 1034 of 2007 established in an enunciative way the existence of 3 behaviors that are not allowed in the exercise of competition, which are:

  1. Domain position abuse acts: in which the behaviors of inciting a third party are found not to provide or not accept a product or service, hinder the entry or permanence of a competitor to an organization without any reason, among others.
  2. Horizontal collusory practices: in which the concerted pricing or other conditions of good or service performed, or the concerted distribution of customers.
  3. Vertical collusory practices: Only this modality is obtained when one of the parts that participate in the production of a good has a domain position in the market derived from prohibited behavior. (Quintana, 2013.)

 

Indecopi also has established sanctions measures for those who commit this type of behavior, these understand:

  • Fines
  • Corrective measures
  • Precautionary measures
  • Among others

The sanctioning power of INDECOPI is basically based on the following principles:

  • Principle of legality
  • Typicity principle
  • Benign retroactivity principle
  • Non bis in idem principle
  • Guilt principle

According to Indecopi (2013), so that unfair competition is sanctioned requires the following procedure:

  • Once the complaint of part has been filed and prior to the admission to the process, the Technical Secretary of the Commission may perform up to a maximum of thirty (30) business days, previous actions in order to gather information or indicate indicationsreasonable of the existence of acts of unfair competition.
  • The deadline for discharging is ten (10) business days.
  • After the deadline for the presentation of the discharges begins, the trial period will not be less than thirty (30) days and will not be able to exceed one hundred (100) business days.
  • The trial period is completed, the parties that the file has been made available to the Commission is notified to issue a pronouncement on the facts reported.

 

Conclusions

Both in the Colombian and Peruvian legal system, it can be evidenceobject of administrative or judicial sanction. Although the Institute for Defense of Competition and Intellectual Property (Indecopi) is a recently created body and is directly linked to the Council of Ministers, unlike the Superintendence of Industry and Commerce (sic) which is an organLinked to the Ministry of Industry, Commerce and Tourism, these entities regulate similar issues, providing protection and aid in areas not only of unfair competition, but also in the protection of intellectual property, consumer protection, among others. In the administrative procedure of unfair competition in Colombia, it is evident that it is more durable and that it has more procedure to be able to issue a resolution that shows the responsibility of who performs the conduct that is subject to sanction, while the sanction procedure in Peru ismuch shorter, which represents a true process of decongestion in this matter.

References

  1. Political Constitution of Colombia [const] (1991). Article 333 [Title XII] Third Edition, legis editors S.A.
  2. Political Constitution of Peru (1993) [const,] (1993). Article 59 [Title III] First edition, recovered from: https: // www.TC.Gob.PE/TC/PRIVATE/ATTACHES/CEC/PUBLICATIONS/PUBLICATION/COMPENDIUM_Normative.PDF.
  3. Guzmán Napuri. C. (2011). Introduction to the repression of unfair competition in Peru. An analysis of Legislative Decree No. 1044. Lima, Pontifical Catholic University of Peru. Recovered from: http: // magazines.PUCP.Edu.PE/Index.PHP/Administrative Law/ARTICLE/VIEW/13693.
  4. Quintana. AND. (2013). Free competition. Lime. Peru, Hebert Tassano Velaochaga and Giovana Hurtado Megàn.
  5. NAVARRO NOREÑA J.AND., Giraldo Escobar. K. and ORAMAS Fonseca. M. (2013). Procedure before the Superintendence of Industry and Commerce in the field of unfair competition. Bogota Colombia. Savannah College. Recovered from: https: // intellectum.Unisabana.Edu.CO/BITSTREAM/HANDLE/10818/5468/129286.PDF?sequence = 1 & isalowed = y
  6. Murcia Páez. M., Valderrama Rojas. C.l., Guzmán Rodríguez. A., Caycedo Espinel.C.G., Moure Pérez. J.G. (2002) Compendium of Competition Promotion Standards and Chambers of Commerce. Bogotá d.C., ARFO EDITORES Y PRINTERAS LTDA.
  7. Creangel (2016) What is the Superintendence of Industry and Commerce? Recovered from: http: // portal.Creangel.com/wp-concentnt/uploads/2016/01/sic.PDF
  8. Fifth Ibargüen, and.P. (2017) Jurisdictional scope of the Superintendence of Industry and Commerce Front Triple Affairs, regarding unfair competition from the entry into force of Law 1564 of 2012. Caldas – Antioquia. Lasallista University Corporation. Recovered from: http: // repository.Lasallista.Edu.CO/DSPACE/BITSTREAM/10567/1959/1/SCOP.PDF
  9. Ochoa Cardich. C. (1996) Limits of the sanctioning power of INDECOPI and the guarantees of the administrative in the administrative procedures of the Law of Competition. Lima Peru. Pontifical Catholic University of Peru. Recovered from: http: // magazines.PUCP.Edu.PE/Index.PHP/IUSETVERITAS/ARTICLE/VIEW/15569
  10. INDECOPI (2013) Procedure stages, Lima, Peru. Recovered from: https: // Indecopi.Gob.PE/web/inspection-of-la-computeing-deseral/stages-of-proceeds

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