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unjustified suspension of health services and competition in the Field of Consumer Protection

No.: 14,197



DOCTRINE 1. "The right of citizens to choose and implement a court, namely, a court with jurisdiction specified in terms of consumer protection, is unquestionable and inviolable, subject to the action, even parallel, an administrative body such as the Superintendency Health Service in monitoring and review technical situations referring to the production and supply of drinking water "

San Bernardo 14 August, two thousand.

seen and considered that Articles 25 subsections 1 and 2 and 2, clause 3 of the Law 19.496, which prescribes that suspends, paralizare or perform a service without justification previously engaged and which was paid right connection, installation, integration or maintenance shall be punished by a fine of up to 150 tax units, when the service was drinking water, gas, sewerage, electricity, telephone and garbage or toxic elements, the responsible will be punished by a fine of up to 300 units monthly tax, and that the rules of law referred to shall not apply to the production, manufacture, import, construction, distribution and marketing of goods or services covered by special laws except that these materials do not provide.
That fact, as expressed by the appellant, the activities related to the provision of drinking water are regulated by health legislation in a different regulatory structure, not organic, or standardized, determined solely by the regulatory activity, including the law to govern General of Health Services (DFL 382, December 30, 1988, with amendments introduced by Articles 13, 26 and 1 in 18,885 and 18,986 respectively laws), the DFL N ° 70 on tariffs with its rules contained in Supreme Decree No. 453, Law 18,778 which provides grants and 18,902 law that creates the Superintendency of Sanitary Services.
That the mere fact that an area of \u200b\u200bthe economy or national activity has a regulation through special laws scares not starting, the duration, though partial, of the Consumer Protection Act and beyond set peremptorily for judicial process if the health standards as a whole take precedence over those of the above Act or vice versa, or if the second impliedly repealed the first in some ways because it was issued later, Judge is a fundamental task of analyzing in detail the special law, identifying its potential regulatory gaps, in places where you can reclaim your life the Consumer Protection Act, assuming that both systems coexist devices without being incompatible with each other, a purely administrative nature and a punitive judicial nature;
That consumer protection law in Article 25 paragraph 2 transcribed above in relation to its other provisions, establishes a system specific, direct and court or consumer of health services and others to complain to a court of the Republic punitive power in a special, fast, which is the law itself cited in relation to the 18,287 law, the safeguarding of their rights violated believe, with the ability to sue civilly further damage that it come at the same venue and within the same procedure as a whole matter is not regulated in this way in public health laws, why should not apply in this case the exception of paragraph 3 of Article 2 of Law 19,496.
The right of citizens to choose and implement a national court, namely, a court with jurisdiction specified in terms of consumer protection, which is also the one called for this purpose in our law, it is unquestionable and inviolable, subject to the action, even parallel, an administrative body such as the Superintendency of Sanitary Services in the audit and review of technical situations referring to the production and supply drinking water.
That case accompanied by the appellant refers exclusively to the generation and electricity distribution is not inconsistent with previously considered. In fact, in the first case study the situation of an electricity generating company had no direct relationship with the consumer distribution, as in research question, and in the second case, investigated the situation of a power distribution reported for violating Articles 23 and 45 of Law 19,496 and not 25, as in this process, the subsection expressly February 1 hypothesis infraction related to the suspension, cessation or failure to provide a service unjustified electricity, water and others separate their nature and finally, to undertake an analysis of a possible violation of the principle ne bis in idem and res judicata invoked by the applicant is required among other things, the existence of a conviction that affects the claim, an issue that does not happen here. In fact even appears in the process there is a parallel process for the same facts under investigation but is different in nature and the tenor of the administration.
And having in mind the other down in Articles 1, 2, 25, 56, Law 19,496, Article 32 of Law 18,287, Article 10 of the Organic Code of Courts, 181 of the Code. Civil Procedure,
Resolved,
No has led to the replacement of folio 54, without costs, and no grounds to appeal a subsidiary of FIRST ADDENDUM on pages 48 to 53 as irrelevant.


Leonardo Aravena, Acting Judge.

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APPEAL: 1468/1999 - RESOLUTION: 148732 - SECRETARY: SPECIAL

Santiago, veinticinco de septiembre de dos mil dos. Vistos: Se confirma la sentencia apelada de veinticuatro de febrero de mil novecientos noventa y nueve, escrita a fojas 107 y siguientes, complementada por resolución de cuatro de febrero del año en curso, escrita a fojas 149 y siguientes, con declaración que se reduce a 15 UTM (quince unidades tributarias mensuales) la multa impuesta a Coca Cola Chile S.A., por infringir lo dispuesto en los artículos 33 y 35 de la ley 19.496.- Regístrese y devuélvase. Nº 1468-1999. Pronunciada por la Quinta Sala de esta Corte integrada por los Ministros señor Raimundo Díaz Gamboa, señor Lamberto Cisternas Rocha y Abogado Integrante señor José Luis Santa Maria Zañartu. mcl.

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Consumer Safety services SA Metro

APPEAL: 1939/2002 - RESOLUTION: 123 509 - SECRETARY: SPECIAL

Santiago, 3 October, two thousand three.

SEEN: Plays the original ruling, dated February 7, two thousand two, written from fs. 146 to fs. 150 back, eliminating the recitals 16And from the 24inclusive 18hasta. Also removed, in recital 17 second line, the phrase referred to in the preceding paragraph, and it is replaced by the sentence, commas, after which passengers must remain until they can get on the cars. And it is in place and also this: 1Que in the first sentence grade given by the judge established the existence of the events giving rise to this view, work complements this Court expressly determines that occurred in circumstances that on June 23, 2000, approximately 17 hours, Isabel Margarita Navarro Rocco was at waiting for the subway station at Cal y Canto, after the security line in yellow, but in the first row and the approach of the mobile, which began opening its doors shortly before it is completely stopped, led to the large number of public waiting at the station who were pressed closer to the convoy, a fact that Margarita Navarro determined to find a foothold for avoid being hit by the train, putting her hands in front of the phone, which is open laterally inside the walls of the same action in conjunction with pressure, led to the fact that Rocco Navarro left hand with the introduction the door in the wall of the car, attending staff of the defendant company who made it possible to take out the hand you after a few minutes, resulting Margarita Navarro with mild bruise in his left hand, diagnosed by doctors of the Hospital's Emergency Posta Barros Luco, until he visited for treatment. 2Que for purposes of determining whether the company Metro SA has infringed the rules of the Law N19.496, circumstance you could be in responsible for damages in favor of the plaintiff, according to the provisions of Articles 3y 23de the same law, it should consider: whether there have been failures or deficiencies in the safety of service to the plaintiff, if these deficiencies are the result of their negligence, and if this has caused prejudice to the plaintiff. At the same time it must consider whether the plaintiff has failed in its duty to avoid risks that could hurt others, to the utilization of the Metro. 3 That the safety requirement, due to the Metro, means that this company must ensure the safety and protection of passengers, at least since they entered the hall where he provides the transport service their passage to the end of it, through the doors mechanized. And it matters that, as a minimum requirement, must take all measures to prevent a passenger to comply with safety instructions, be exposed to harm by the action of others, in the case that these actions were predictable for the Metro . It is clear that the safeguards adopted by Metro in order to draw a yellow line which must not transfer the passenger until the vehicle stops, and the placement of signs on the doors ordered that passengers must not rely on them, not sufficient if, as in the case, will be crowded a large group of pa messengers and press are pushing the frontline. This situation, passenger crowding and pressure them toward the subway cars, "certainly" is a totally predictable event type for the Metro, since it is public knowledge that the repetition of events of this nature, and it is just analysis of these situations foreseeable hazards and taking appropriate security measures, which give precise content to the safety requirement of the defendant utility. The fact that Metro has not considered this possibility and therefore the actions taken to avoid damage, such as the present, they constitute breach of its obligation to safety. And this failure be considered negligent, since the medium carefully with Metro could have adopted measures that'll take you to meet this safety requirement. 4 That, on the other hand, the plaintiff has acted on the instructions of the service company sued and settled, waiting for the subway car, behind the yellow safety line. And it can not be considered to act recklessly, or that has failed in its duty to avoid risks that may affect you, because you have crossed the yellow safety line, as this only occurred at the hands of peer pressure from people who was behind it and the failure of the defendant in order to implement actions aimed at preventing these kinds of events. Understanding otherwise your obligation to avoid risks that may affect it, according to the terms of Article 3, letter d) of that Act, mean that a passenger only fulfill its obligation to avoid risks placing so far from the line yellow as necessary to prevent the pressure from other passengers, located behind him, so nigh dangerously subway cars. This runs counter to the idea, commonly accepted, that is the company providing the service and, therefore, generating the risk which is able to prevent such risks and not the passenger. 5 That, furthermore Moreover, it should be noted that in this case, the subway opened the car doors before stopping completely, and that if, however, the doors only open with the train completely stopped, as expected normally, fact that caused the year has not been produced. 6 That, in recognition of the foregoing, it is undoubted that the Metro has failed to fulfill its security obligations with respect to the plaintiff, in rendering the service provided, that such failure was negligent, by failing to provide the possibility of this accident, having been able to foresee with a median diligence and therefore by failing to provide security measures that it impossible to its occurrence; and that the injury suffered by the plaintiff as a result of his injury to his left hand, the result of the allegation in the case, had the direct and necessary cause failure in the safety requirement referred to above. 7 It also is undisputed that the plaintiff has suffered pecuniary and moral product of negligent breach of the defendant referred to above. In fact, according to the document fs. 76, has been proven that the plaintiff suffered damages consisting of cost of drugs, worth $ 4,355 (four thousand three hundred fifty-five pesos), and reportedly the legal medical service, which rolan fs. 132 and 141, and according to testimonies, fs. 71, Mario Alexis Giuliano Villar, and fs. 72, Guillermo Alfredo Cáceres Castro, it is proved that the plaintiff has also suffered material damage, consisting on the one hand, psychological damage, this is a modification or alteration of the personality of the plaintiff, expressed through depression, blocks, inhibitions and fears, and, secondly, in a biological damage, ie the integrity of his left hand, injury of medium gravity, meaning an inability of 20 to 22 days, pain and suffering that this Court assessed in the sum total of $ 1,500,000 (one million five hundred thousand pesos). 8Que, regarding the defense of the defendant should be allowed that it does not ignore the occurrence of events, tried to excuse the actions of others, it has met certain standards of safety and respect them not the plaintiff has recklessly exposed to damage, as also did not charge the seg uros you have to cover the facts giving rise to the claim, all that is rejected, since the subjective element of guilt is justified by the knowledge of how the service is provided transportation and the normal risks that may face the same users, increasing importance of the special capabilities and expertise and scientists who work for providing the service that, in this case the company Metro SA, which as is well known, has professionals dedicated to the prevention of risks, conditions and circumstances are appreciated objectively, under which a certain behavior is required in this case foresight, diligence and security that can be expected of it, especially the people who act by the defendant, as for establishing liability need not specifically provided is accurate damage that occurred, which undoubtedly is considered by Metro SA, who placed signs indicating that special door, if not that just because it has been expected, given that it allows indiscriminate access of passengers to the platform, however it is known to exist hours using their services more people than they can carry a train, having to wait for the public the following, times in which even has a higher value is expected passage and this is by increased security measures and not simply to raise larger amounts of money (Marcel Planiol and George Ripert, Treatise on Practical French Civil Law, Volume VI, page 719). These authors add that to prevent damage, the law and regulations prescribe or prohibit certain acts. As it turns out that these bodies of law are known by all, his failure to comply constitutes fault, which added, but compliance does not relieve them of the duty not to comply the general obligation of foresight. Which has adapted to the regulations will also be responsible if it causes injury that could and should provide (Idem, p. 720). The conduct of the defendant company, or more precisely their omissions have been the precise cause, necessary and direct damage because of non-negligent behavior Diar me the damage had not occurred, because allowing entry to the platforms of many people of what will be possible to transport the train cars near undoubtedly generate pressure in the sector who are far away for those who are close to the mobile, without further measures that tend to prevent this, for surely those who are close to the try line not to exceed the yellow stripe painted on the ground, which will yield to the pressure indicated, not by choice, without the measures indicated in the file arranged to prevent harmful acts against such a risk, being delivered to the criteria and user education. That is why in such cases, it suffices that among these causes is a fact or an omission intentional or culpable for the existence of causal relationship, provided that the act or omission, whether near or remote, immediate or mediate, has been a necessary element and direct it, that is, without him it would not have occurred, although entered into in the other cases (Arturo Alessandri Rodríguez, contractual liability in the Chilean Civil Law, page 242), to which the author adds, that all facts that have contributed to cause damage are considered as the cause of all of it and therefore as equivalent (Idem, p. 243), saying then that the effect of plurality of causes is that when guilt or deception is present in one of the necessary background and direct damage occurs, the author is obliged to fully repair. Its reduction could not be claimed under the pretext that there are other, because each case is what all the damage (Idem, p. 245), which is discarded that the concurrence of the actions of others to hold harmless to the defendant. For these reasons and legal citations, declares: That it revokes the original ruling dated February 7, two thousand two, written from fs. 146 to fs. 150 back, just as in operative paragraph c) does not give rise to the infraction report and rejects the civil suit for damages, deducted by Rocco Navarro Margarita against SA on Metro, and instead it was decided: I .- To the complaint welcomes deducted infraction against the company Metro SA, for infringements of the rules of the Law N19.496, and therefore, is punishable as this company Metro SA, to pay a fine of 10 units monthly tax as the provisions of Articles 24 and 61 of the Umbrella that law. II .- That is home to the civil claim for compensation for damages, deducted at page 1 by Rocco Navarro Margarita, against the company Metro SA, declaring that the defendant should pay the plaintiff the sum of $ 4,355 (four thousand three hundred fifty five dollars) on account of damages and the sum of $ 1,500,000 (one million five hundred thousand dollars) for moral damages, amounts will be adjusted according to changes you've experienced the consumer price index between month prior to the date on which the violation occurred and the preceding that in which the payment is cash, plus interest for operations calculated from the data indexed in the sentence becomes enforceable until the date of actual payment. Each party shall bear its own costs. Register and refunded Drafting Attorney Paulina Veloso Valenzuela Integrative N1.939 2002. Made by the Sixth Division, composed of the Ministers Mr. Juan Guzman Tapia, Sergio Muñoz Gajardo and integral lawyer Mrs Paulina Veloso Valenzuela.

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case competence against

APPEAL: 1804/2001 - Resolution: 81 292 - SECRETARY: SPECIAL

Santiago, 13 June, two thousand one.

Vistos: The merit of the information and ruled by the District Attorney's report on pages 384 and following. And having also this: 1) That pursuant to its statutes, the Tennis Federation of Chile is actually empowered to act as organizer and administrator of public events, from sporting nature, for which it can perform as often as it deems appropriate, such events, making their promotion through advertising, gaining entry to the participants and paying the costs involved. Therefore, it is the nature of provider defined in article 1, number 2 of Law 19,496. 2) that on the other hand, although it is a private corporation not for profit, for the achievement of the goals are specific, require funding, which develops activities aimed at profit, running with it, acts of trade. Attended the merit of the background and bearing in mind the provisions of Article 157 of the Courts Organization Code, is repealed, as respondent, the resolution of March 7 last, written on pages 365 and following, and instead stated that jurisdiction to continue hearing of the facts the Judge not disqualified Fourth appropriate local police court of Santiago, who will send the file. Return the form with your file added. 1.804-2001 No. Dictated by the Ministers of the 8 th Chamber Miss Maria Antonia Morales Villagrán, Mr. Victor Montiglio Rezzio and lawyer Mr. Domingo Hernández Emparanza member.

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Sports Organizations Real Estate Brokerage Services, Parking and incompetence

APPEAL: 4826/2002 - Resolution: 41 863 - SECRETARY: SPECIAL

In Santiago, April 15 two thousand four.

SEEN: Plays the sentence on appeal on this first day of August two thousand and two, that rola from folios 78-91, except the preamble to 40th January, they are deleted. And it is in place and also this: First, that under Article 2 of Law No. 19,496, on consumer protection, are subject to the provisions of legal acts, that in accordance with the provisions in the Commercial Code or other provisions laws, having the character of business for the supplier and consumer of civilians. And again, according to Article 50 of the Act, the court has jurisdiction of local police to learn of the actions leading the implementation of the Act. Second: That the species, the legal acts of the defendant have no commercial character. Indeed, under Article 2 of the Commercial Code, commercial law is exceptional. While Article 3 of the Code, does not provide an exhaustive list of acts of trade, to be such there must be a rule of law so provides, or it comes off by being a act accessory to a commercial transaction, with the general rule that the civil ceremony. And it is not established at trial that the defendant in this case, has taken a trade. Third: That pursuant to the terms of the statement of claim and defense, the defendant, Valcasa Housing Services Ltd., provides advisory services and intermediation in the sale of property, and the plaintiff appealed to this company just to get an advice and brokerage of real estate. That such acts can not be considered commercial. That, in cars can not be understood that there has been no commission or trade mandate or acts performed are accessories to an act of commerce. Which otherwise traditionally national doctrine has tended to consider that real estate is excluded from the commercial, that is, acts that fall on them are not commercial acts, unless legal exceptions. Consequently, it can not be invoked to apply the legal status. Fourth: That as a consequence, the Local Police Judge absolutely no jurisdiction over this matter. In light of the foregoing, and in accordance with the provisions of Articles 1, 2 º and 50 º of Law N º 19,496 on protection of consumer rights, 2 and 3 of the Commercial Code and 209 of the Code of Civil Procedure, SE REPEALS all parts of the appealed decision dated August first, two thousand two, that rola from folios 78 to 91 that receives the complaint and the civil infraction, with costs, and instead stated that the Court a quo is absolutely no jurisdiction over this matter. Drafted by Attorney integral role Mrs. Paulina Veloso Valenzuela 2002 .- No. 4826 Delivered by the Fourth Chamber of the Iltma. Court, composed of the Ministers, Mr. Jaime Rodriguez, Victor Montiglio and Integrative lawyer, Mrs. Paulina Veloso .-

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accessoriness dissenting opinion on free space

APPEAL: 5014/1999 - RESOLUTION: 128 573 - SECRETARY: SPECIAL

Santiago, nine August two thousand two. Viewed: Plays the sentence on appeal, but removing the sentence that reads Under Article 55 of the Consumer Act the complaint is considered frivolous, to be unusual that in a public parking is offered a guarantee of the nature of that requested by the complainant .. And you have in place this: 1 .- That according to the merit of the process flow has not been established that the alleged establishment offers, apart from the Annex, but open-parking, security or proof of his position, which does not imply that complaint has been reckless, it is not uncommon for common grocery items or construction, maintain surveillance systems for vehicles parked on site and immediate attachments to their premises, which gives customers peace of mind and makes complete and modern services. 2 .- That the above discussion it follows, therefore, that the complaint is of plausibility, so it can not be condemned in costs. For these reasons, the sentence referred revocala is July 30 of 1999 and is written to fs. 18, as costs against the plaintiff and states, however, that absolves them. It confirms, moreover, that ruling. Confirmatory agreed to vote against the Attorney Integrative Mr. Hernandez, who e stûv to repeal that part also in the ruling on appeal and accept the claim at issue, punishing the accused, as in his opinion applying the rules of logic and experience- the establishment denounced as those of his kind, to provide parking to their customers, induces or suggests the idea that this place is safe by having appropriate supervision. Sign up and be refunded. Writing by Minister Cisternas. No Mr. Valenzuela signed by the Minister despite having attended the hearing of the case and agreement, for being absent. No. 5014-1999 issued by the Ministers .- Mr. Sergio Valenzuela Patiño and Lamberto Cisternas Rocha and Mr. Domingo Hernández Integrative Advocate Emparanza.

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right to free choice and enrollment Safety

APPEAL: 7440/2003

Santiago, June 1, two thousand five.
A folio 85. 86 and 87: keep in mind. Views: sentence is reproduced raised, and deleted the sixth and seventh bases. And it is in place, and also this: First, that as it flows to the statement in the basics first four, the ruling on appeal, the matter of this process concerns the withdrawal of illegal charges that would have made the Company Almacenes Paris. Indeed Rafael Luis Egaña Road reported the September 4, two thousand two, which last Almacenes Paris society has figured a bill for unemployment insurance and a charge for disencumbrance insurance and other charges, that in no circumstances when the contracted services. Second, that article 3 letter a) and b) of the Act No. 19,496 expressly provides: a. - The free choice of good or service and point b. - The right to accurate and timely information on goods and services offered, price, contract conditions and other relevant characteristics thereof, and duty to consult them responsibly. While Article 12 of the same Act expressly provides: "Any supplier of goods or services shall be bound by the terms, conditions and procedures under which it has offered or agreed with the consumer supply of goods or the provision of service. Third: That as a result of the process flow grade claimed that the Company has infringed the rights of consumers planned in that article 3 a) and b), since in no case has been by the claimant an expression of intent or acceptance of insurance for which he is making the payment. For these reasons and down in Articles 3, 12, 23 and 24 of Law N º 19.496, revoking the original ruling of August 6, two thousand three, written from folio 59 to folio 60 and instead stated: convicting Almacenes Paris SA to pay a fine to a tax benefit of five units monthly tax, for breach of Article 3, letter a) and b) of Law No. 19,496, on the Protection of Consumer Rights, on the occasion of the allegation . Register and returns. No. 7440-2003 .- Delivered by the Eighth Chamber of the Court of Appeals, composed of the ministers Dona Sonia Araneda Briones, Patricio Villarroel Valdivia and the attorney member Don Angel Cruchaga Gandarillas.

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negative consumption and fall within a commercial establishment failed 2 nd instance

VALPARAISO COURT OF APPEALS

APPEAL: 1310/2003 - Resolution: 28,859

Valparaiso, June 9, two thousand four.

citation sets the sentence on appeal, eliminating entirely the reasons 5 and 8; and legal citations of article 19 of Law 18,287 and Articles 18, 19, 20 and 21 of Law 19,496 and having in place and Also present: 1 .- That is undisputed in this present the fact that Dona Ana Amelia Carvajal Tobar had an accident in the shop called Homecenter Sodimac, located at Avenida 15 Norte, Viña del Mar. This is recognized by the representative of the establishment Don Vicente Vásquez Marcelo Trincado to fs. 8 adding circumstances that depict the extent of the coup who experiences derived from being dropped. Fs absolving positions. 55 reiterates this situation, recognizing that Dona Ana Carvajal Tobar slipped and fell to the ground in local Homecenter Sodimac, that such a thing happened in the place where they are located hygiene items the day of the accident Homecenter workers cleaned the floor Sodimac the overall local with the company cleaning and such cleaning is carried out because another customer had liquid detergent. 2 .- That, as set out above, it credited the responsibility of the company Homecenter SA represented by Mr. Marcelo Vicente Vasquez Trincado to whom it was served with the demand for fs. 11, 12 and 13 and provided with fs. 13 row., As appears in the printed certificate to fs.16 .- Moreover, answering the demand fs. 24 is not questioned by the defense of passive standing SA Homecenter of the company to be sued, but the inappropriateness of the application in the species of Law 19,496 attended the event not to consider the plaintiff as a consumer of Homecenter SA or the defendant as a supplier of that. He adds that in Viña del Mar, SA Homecenter has no shop or establishment and referred to as Homecenter Store belongs to a different corporation as credit, proof that was not produced in these cars. 3 .- That the moral damage suffered by the plaintiff is sufficiently established with the background added to fs. 3, 20, 21, 22, 23, 64, 65, 66 and in this instance to fs. 87, 88 and 89 .- In the same and even the statements of the defendant company representative Mr. Marcelo Vicente Vasquez Trincado to have been mentioned, it is shown that indeed Dona Ana Carvajal Tobar, after the fall, spent some minutes on the ground, was referred to the store Polyclinic paramedic for initial screening and then was sent to Reñaca Clinic where he was ordered to rest for 15 days .- He suffered injuries, head injuries, the Cervis, the right wrist, legs, shoulders and hips. Such conditions are supporting the moral damage that the person experiences, this is mental pain or suffering, impairment and distress resulting from acts attributable to third parties. Consequently given the assumptions set out in Articles 2314 and 2329 Civil Code to access the claim for damages resulting from such damage by the amount that this Court, ruling in accordance with the rules of sound judicial discretion shall determine as the analysis of the evidence presented. 4 .- That, however does not exist in the file history to justify the compensation claimed for loss of profits. And see also the provisions of Articles 14, 32 and 35 of Law 18287 is hereby revoked and the original ruling of September 3, 2002 written to fs. 72 and 73 and is declared. 1 .- The company is doomed to Homecenter SA to pay a fine of 5 UTM 2 .- That gives rise to the lawsuit filed by Dona Ana Amelia Carvajal Tobar fs. 11 only in that company is convicted to pay the sum of two million pesos ($ 2,000,000) for pecuniary damage claimed more adjustments to be determined under the consumer price index to the date of notification of this decision and the actual payment and current interest determined as set forth. No order for costs against the defendant for not having been defeated completely. Sign up and be refunded. Role No. 1310-03 .- Writing integral attorney Farren Mr Fernando Cornejo.

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Class action against State Bank

Santiago, July 1, two thousand five.

Viewed: Plays the appealed resolution, dated April 14, two thousand five, written to fs. 50, and there is also this: 1 .- That Article 52 of Law N º 19,955, amending the Law No. 19,496 provides that the court may declare the admissibility of the suit filed for injunction or diffuse the collective interest of consumers, which will verify the attendance of the elements the statute provides, among these, as stated in the letter b) The conduct pursued affects collective or diffuse interests of consumers in the terms set forth in Article 50, 2 .- That, in turn, Article 50 states that actions arising from this Act shall apply in relation to acts or conduct that affects the exercise of any of the rights of consumers. He adds that the failure of the rules contained in this law will lead to action to punish the provider to incur in violation .....; 3 .- That the two above-mentioned laws are comprehensive in their application, and that while article 52 of Law No. 19,955 requires the punishable act affecting the collective or diffuse interests of consumers, Article 50 refers to acts or conduct that affects the exercise of the rights of consumers; 4 .- That, in case there is a demand to the State Bank since in savings contracts concluded with depositors, while there is a clause that allows the Bank to charge for maintenance of the concept of savings accounts, however, dated December 23, 2002, by Circular No. 1638, the Bank decided, unilaterally, that, beginning on 1 January 2003, charged a quarterly maintenance fee savings accounts in the light, equivalent to 0.02 UF, plus VAT. That, in addition, the State Bank began charging such fees not to mediate, at least, within 10 days before the date required by the contract and the same Circular, 5 º .- The defendant argues that rules governing bank savings accounts to view and collect fees are governed by a special legal regulation, consisting of the Constitutional Organic Law of Central Bank Law No. 18,840, and the rules it promulgated pursuant to its powers legal, and the General Law on Banks, DFL N º 3 of 1997 and regulations issued by the Superintendency of Banks; 6 .- That collective action introduced by Law No. 19,955, seeks injunction, in general, as mentioned above, acts or conduct which affect the interest or diffuse group of consumers who, in this case, collisions, as argued by the defendant, with the special regulations governing banking, 7 º .- The Consumer Law does not clash with banking regulations, and not seeking oversee the operations and banking, but only intervenes in accordance with the stipulations of Article 2 bis, when there is breach of the obligations of the supplier, which is committed collective or diffuse interests of consumers or users; 8 .- That, in this case, is in the presence of unilateral action and surprise of the State Bank, which was not agreed with savers and alter the rights who were the plaintiffs at the time of the opening of their accounts because they charge fees for managing the account; 9 .- That, in consequence, the Bank agreed not to set conditions, which affects the interest of savers , departs from the proper field of banking regulation, and enters the proper scope of Law No. 19,955, which rule violations committed against consumers; 10 .- That also in Updated Compilation of Rules of the Superintendency of Banks and Financial Institutions, Chapter 2-4, 14.2.2., referring to anticipated changes in interest and fees, the legislature has not put in the situation that has arisen in these proceedings, that the Bank may establish a commission, since it refers only to the decrease or increase of fees, in addition to that in the event of an increase will be announced by the Bank a period not less than 10 days before the start of the quarter in which to apply the new method of collection, which has not happened in the species seen by these considerations and also the provisions of articles 2 bis, 5th, 6th, 8th b), 50 and 52 of Law N º 19,955, amending the law N º 19.496, confirming the decision appealed against, dated April 14, two thousand five, written to fs. 50. Sign up and be refunded.
No. 5104-2005 .- A member of the Advocate Editorial Hugo Llanos Mansilla. Dictated by the Fourth Chamber of the Court of Appeals of Santiago, which included the Minister Mr. Alfredo Pfeiffer Richter, Mrs. Dobra Lusic Minister and Attorney Integrative Hugo Llanos Mansilla.

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Responsibility for moral damages in motor vehicle Promotions

504-2005 Appeal Court of Appeals of Santiago

S

antiago , 14 November, two thousand five .

Vistos: Case is played Nov. 16, two thousand four, written in page 41, with the exception of paragraphs 5, 6th, 7th, 8th and 9th, all of which is eliminated. And there is also this: 1 .- What should determine the sequence of events on trial, as follows: a) on 05 January 2004, as recorded in the packing list on pages 5, the claimant purchased the vehicle in question, b) on 13 that month and year, the buyer took the car where the seller and he noticed the alarm, which was very sensitive (folio 7 and 24), c) on February 11 had to limpiársele front brake pads, they made noise, while other operations he performed were not detailed (folio 9, 25 and 26), d) on 23 this month changed the handbrake lever, while the brakes are regulated according to realize the pieces on pages 27 and 28, e) on March 12, switched to auto your dashboard, it regulated the shifter , he noticed the markers and revised some noises (folio 8, 29 and 30), f) on 02 June that year it was repaired NDOS noise at the rear and right front door, which was forced closing; while the rear was lubricated and adjusted the upper end of the buffers (folios 10, 31 and 32), g) on \u200b\u200bJune 14 changed the oil and filter (folio 33), h) on 17 June after the complaint was made before the Service Consumer National (folio 4), 2 .- That the above, the court follows, appreciated the awareness test, the Renault Megane car of the year 2004 was sold by Derco SA Car Carmen Gloria Bravo Bar, with defects in brake, shifter, suspension, instrument panel and right front door; 3 .- That the court can not pretend that a movable thing from the hand of man, such as a motor vehicle is perfect, and is aware that this is not due to the supplier. However, notice that when someone buys a brand new car, ie outbound from the factory, the firm that represents formally the respective brand, so, in large part by the assurances given by the fact that protection the species is covered by the brand, assuming that the controls of production and the shipment from the factory to the distribution site, have been effective enough so that buyers do not have to return again and again for adjustments and / or repairs; 4 .- That, on the other hand, it appears that each of the arrangements that the car had to undergo was solved by the vendor reported, that under factory warranty expense $ 300,750. Therefore, in the absence of other evidence, these judges are not convinced that how avatars that surrounded the acquisition by Ms. Bravo of the species in question, have generated, directly and immediately, a damages equal to $ 6,392,300; 5 .- That, however, impossible to ignore the wear it has meant to the complainant having to batírselas to Derco SA for seven times between January and June 2004 to take forward their investment, which has had bartered in anguish and uncertainty, finding that he acquired the securities themselves of the new, crumbling in repairs inherent to use. That is constitutive of moral injury that the Court of Justice believes recognize. For these reasons: A. Revokes the said failure to participate in hosting the demand for damages (decision b). Consequently, ceases to have effect the decision marked d). B. He confirms, moreover, with a statement that the fine is reduced to the equivalent of four monthly tax units (UTM). Sign up and be refunded. Editorial Minister Carlos Cerda Fernandez. No. 504-2005 .- Delivered by the Seventh Division of the Court of Appeals, presided by Minister Carlos Cerda Fernandez and made by the minister and Mr Jorge Dahm Oyarzún Float fiscal Mario Espinoza.

Black Patches In Stool

incomplete and infringement of Article 35

APPEAL 5564/2002 SPECIAL RESOLUTION SECRETARY 61,372

Santiago, 27 May, two thousand four.

Viewed: Plays the sentence on appeal, with the exception of the fourth reason is eliminated. And having in place and also this: 1) That although the expression is Christmas in the promise of the complaint is possible to understand the period from the time of the broadcast promotion until Christmas Day, and therefore the time factor is considered certain does not occur same with the other terms of the promotion, it is not possible to know how this can be implemented. In fact does not explain or say where this information can be of the form to request a refund offered. Thus it is not known if this requires buying in another setting and with the ballot to show that this cheaper, or just enough to bring information to other, lower price than that offered. 2) that the formulation releases the reported at page 13, is referred to the cause as appropriate to the time duration of the offer, but otherwise is referred to a promotion to that analyzed in different cars. 3 º) that in this way has been shown that the alleged breach of Article 35 of Law N º 19,496 and penalties of the procedure mentioned in Article 24 of the same. For these reasons, it reverses the decision of 26 August two thousand and two, written in page 23, in rejecting the complaint on pages 1, and states that Distribucion y Servicio D & S SA is ordered to pay a fine of five units monthly tax, and costs of the case. Sign up and be refunded. Drafting of the Minister, Jorge Dahm. No. 5564-2002. made by the Fourth Chamber of the Iltma . Court of Appeals.

Sugar Glider Ovulating

APPEAL: 3930/2000 - RESOLUTION : 191 940 - SECRETARY: SPECIAL

Santiago, 20 December, two thousand two. VIEW: Plays the sentence on appeal, which is first day of June two thousand, written on pages 547 and following, except motivations 6th, 9th, 29th, 37th, 50th and 55th, they are deleted. And, it is in place, and also this: 1 .- It should be noted that in the first infraction complaint deduced in the main on pages 13, the part of Don Patricio Fernández Ruiz-Tagle, attributed to non-compliance complaints obligations under Article 12 of Law No. 19,496, according to which, and where relevant, providers of goods and services are required to abide by the terms, conditions and modalities under which had been offered or agreed with the consumer supply of goods or service. 2 .- That, in this case, it is clear that violations found against the defendants are facts include, but are interrelated, are different in nature and occurrence. On the one hand, it expresses the complainant had purchased a van with four-wheel drive, requirement or essential feature not met one that was sold, due to a technical fault at the factory. And apart from that, based their actions by saying that having commissioned a "Harvest" at his own expense repair such failure, the aforementioned vehicle was delivered without having to correct the failure of existing factory in the drive system. 3 .- That, in the sentence to be reviewed, the defendants are found to be responsible for the violations referred to in Articles 12 and 26 Law of Consumer Protection, for which they were ordered each to pay a fine up to $ 200,000 .- 4 .- That the defendants opposed the plea of \u200b\u200bprescription of action to pursue the liability misdemeanor punishable under Article 12 of the Act, arguing that to date deducted in the lawsuit had passed within six months as from that could have committed the offense. 5 .- That, in the present case, the conduct alleged infraction, of not respecting the terms, conditions and procedures under which it has offered or agreed with the consumer delivered or the service was consummated at the same time to perfect the sale took place between the parties exist as true and not controversial history have occurred on this fact, the April 12, 1999, as stated in the invoice that is added back to square one of these cars. Accordingly, for purposes of counting the limitation period shall be referred taken into account that initial day, and, as such, we can conclude that the term expired on October 12, 1999. And, the record shows at page 13 that the charge was deducted infraction on 19 November of that year, it only remains to decide to allow the plea of \u200b\u200blimitation for misdemeanor opposed by the defendants, only in relation to the infringement found in Article 12 of Law N º 19,496 . 6 .- What, apart from this, it is the case noted that exceptionally civil action seeking the return of the purchase price paid as a consumer, in exercise of the rights referred to in its favor Articles 19 and 20 of the aforementioned legal text should be tried under Article 21 of the Act, within three months from the date you received the product, period should run from the date of the corresponding invoice or bill, and non-derogable under any circumstances, according to the clear wording of that provision. 7 .- That, as previously thought, the civil action derived in cars, aimed at achieving the return of the price that the actor Patricio Fernández Ruiz-Tagle Harvest SA paid for the vehicle to be re refi demand folio 1, amounting to $ 18,740,000 .- was filed on November 19, 1999, ie when he had spent in excess within three months referred to in Article 21 of Law N º 19,496, so that host the exception of prescription opposed by the defendants in the main on folio 86 and folio 109. 8 .- That, in respect of the other actions arising from the rights contained in these Articles, they should be exercised in the same time that the seller had given warranty, if the term shall exceed three months following the date of receipt of the product. Accordingly, the species had been established in the ruling on appeal that the seller extended the term of the guarantee granted to 24 months, the rights and actions reparations stemming from the circumstances described in subparagraphs c) and f) of Article 20 of Law N No. 19,436, asserting facts before maturity, do not deserve any legal objection, as to the chance of that action. 9 .- That, as already stated, and especially the rationale in the motivations 4, 7, 8, 18 º to 26, 28 º, 32 º to 36 º and 39 º to 41 º of the decision to be reviewed, it is possible to conclude, in agreement with the court a quo, in which the vehicle manufactured by General Motors SA, and sold the actor for Harvest SA, introduced manufacturing deficiencies and therefore lacked capacity to use in terms of moving to a system of four-wheel drive, as it was offered, feature also the provider expressly stated in product advertising. From these facts adrift in conduct that creates liability infraction and civil, which the consumer has the right to pursue to obtain compensation for material and moral damages for breach of the aforementioned legal provision, as so authorized by article 3 letter e) of Law No. 19,496, on the protection of consumer rights. 10 .- That the documentary evidence added in this instance by the General Motors Chile SA, which rola from folio 643 to folio 660, consisting of instruments private account for various repairs to the vehúculo underwent sold to the actor, weighted according to the rules of sound criticism, does not alter the conclusions regarding the facts set out in the sentence, since those documents refer only to maintenance services, overhaul and repair of the aforementioned mobile, all of which are not directly related to the manufacturing defect that pre-existed it, rooted in the drive system, credited in the manner as expressed by the motivations played in the statement. 11 .- That, likewise, the confessions made by the actor at page 667, does not contribute to distort the facts referred to the ninth basis of this ruling, consistent with the rationale for the court a quo, from those that the confessor recognized as true, positions 1, 6 and 7 of the statement on pages 666, limited to make clear that the vehicle bought the plaintiff is performed, after its acquisition, certain revisions and / or mechanical repairs, but they are referred directly to the factory default occurred from the time the engine was received from your vendor. For these reasons, and given also the provisions of Articles 32 and 35 of Law No. 18,287, is revoked, the sentence on appeal in terms of operative paragraph C rejects the objection opposite limitation on sheet 86, HARVEST SA, and the opposite at page 109, GENERAL MOTORS CHILE SA in respect of the infringement action referred to in Article 12 of Law N No. 19,496, and as L hosts by resolving claim deduction on pages 13 and following and condemnation of "commercial motor Costabal and Echeñique SA" (HARVEST) to reimburse the complainant the sum of $ 18,740,000 .-, more adjustments, and as for his A decision ordering the latter to restore order that defendant's truck car, opting instead: 1 .- To accommodate the objections of limitation for misdemeanor offense intended to punish referred to Article 12 of Law N No. 19,496, as opposed to 86 per HARVEST SA folio and folio 103, General Motors Chile SA 2 º .- To accommodate the exceptions of limitation for civil action opposed by defendants on pages 83 and 109 and accordingly reject the civil claim deduction on pages 13 and following HARVEST against SA, and secondarily against General Motors Chile SA, in the part where she is pursued by an order that those companies to refund the price paid by the plaintiff by the TA-7798 pickup truck, Chevrolet Silverado EL, 1999, amounting to $ 18,740,000 .-, upon return of that vehicle. 3 .- That is confirmed in else appealed the aforementioned decision with a statement that the fines imposed on HARVEST SA and General Motors Chile SA, for $ 200,000 .- each, in the resolutions E and F of failure is reviewed, they are applied only to have committed the offenses listed in c) and f) of Article 20 of Law N No. 19,496. To declare further that the compensation money to be ordered to pay the defendants Harvest SA, and General Motors SA, referred to in the grounds 41 and 45 degrees to the decision that is reviewed and the M of the same shall be on plus adjustments according to variations in the Consumer Price Index experienced between September 1999 and the month preceding the month in which payment is verified. Register and devuélvanse in two volumes. Drafting Attorney Mr. Robert Jacob Integrative Chocair. Deputy minister will not sign the Lord Provost, despite having attended the hearing and agreement, for being absent. No. 3930-2000. made by the Third Chamber by the Minister Mrs. Gabriela Pérez Paredes, Deputy Minister Humberto Provoste Bachmann and Attorney Mr. Robert Jacob Integrative Chocair.

Curtains Black Silver

Cars and Incompetence and security of attachment theory

APPEAL: 1853/2005 - RESOLUTION: 44972 - SECRETARY: CRIMINAL SECTION

Concepcion, 29 November, two thousand five. Views: Eliminate the reasons 5 and 6 of the decision on appeal, it is reproduced in the rest and there is also this: 1 .- Article 2, letter a) of Law º 19.496, provides that are subject to the provisions of the law: The legal acts pursuant to the provisions in the Commercial Code or other laws, having the character of business for the supplier and consumer civilians. Accordingly, it is clear that the consumer may invoke this law provides protection when act or contract is executed or held for him the nature of civil action, this being both a commercial transaction for the provider; 2 .- The civil complaints and petitions, International Maco SA, opposed the absolute plea Court to hear the case. Is one which the complainant and complainant stated to be a merchant, having the character of the carrier, by what is included in Article 3, number 6, of the Commercial Code and, as she is a merchant, the act based on the complaint and commercial demand should be considered for both parties. Said that acts that traders run each character must be estimated annotated even those in isolation are civilians, if they complement, assist or are accessories to a trade, industry, business, commercial enterprise or main activity, and because the ease or contribute to increase them or make them, or simply the guarantee; 3 .- The acts trading ar described in Article 3 of the Commercial Code can be for both sides or just one. That is what the same article 3 saying: They are acts of trade as part of both contracting and part of one of them, recognizing the existence of acts mixed or dual character; 4 .- What is not disputed that the act underlying the complaint and civil action has the character of commercial for complaints and petitions, that is, Maco International SA. The dispute is about the nature he has for the consumer, ie the complainant and complainant, Walter Ernesto Pereira Valdebenito, 5 .- That it is true that he claims to have merchant status, carrier, and appears individualized in documentation accompanying the same background. But it is well known, things are what they are by their very nature and not name anyone, whatever, can give them. It is apparent from the file, Walter Ernesto Pereira, owns a single truck, XK Pat 7673-6, international brand, model year 1993, which dedicates the transport of species, most of the time is managed by himself and in others, the driver Jorge Plaza, 6 .- Article 3, number 6, of the Code of the Branch, statues which are acts of trade from executed by: The land transport companies, rivers or waterways. In turn, the final paragraph of Article 166 of the said Code, warns: The industry exerted to carry passengers or goods by employees and their dependents in their own vehicles or who are at your service, called transport entrepreneur, although sometimes run the transport itself. The last mentioned article defines the contract of carriage as that under which one is obliged for a price to drive from one place to another by land, canals, lakes or navigable rivers, passengers or goods of others and deliver them to the person to whom they are addressed. In this connection, the author Juan Esteban Puga Vial, he adds: Companies that do engage in commercial activity and all acts and contracts concluded in the exercise of their activity are commercial acts. Then he adds: While transport activity is organized as commercial companies, the contract itself will be civil transport if the carrier is not firm (The Trade Act, Criticism Traditional Theory, page 184). Professor Don Ricardo Sandoval López, exhibits that: The rule in Article 3, No. 6, of the Code in question, in relation to Article 166 that establishes, in respect of transport made by companies. The transport itself is a civil, transport itself is, first, leasing services and, secondly, the deposit agreement. Consequently, the individual transport (for example, performing a taxi driver) is a civil act. But when business is done by making the character of an act of commerce, ie, the final paragraph of Article 166 gives the character of the transport industry. Then adds that: Under Article 171 could be deduced that the act performed by the carrier employer would not commercial, but the contradiction with what has been telling is only apparent, because although the law states that the act is subject to Title V, this does not make you legally lose the qualification applies, that is, it is a civil action governed by the Code of Commerce (Business Law, Volume I, Fifth Edition Updated, pages 115 et seq.) About the latter, the formerly named Puga Vial, Article 171 states that only extracts: although the contract of carriage is a civilian, because the carrier is not irregular or is it carrier, the carrier's obligations are governed by the rules Commercial Code, though no transport if no employer carrier ceases to be civil (work cited above, p. 185), 7 .- That, then, must conclude that Walter is Ernesto Pereira Valdebenito, against what it says, not a merchant carrier, since that does not have a transport company or a businessman in the industry, and that has only one truck, which is dedicated to transport species, which, in accordance with laid down in Articles 3, No. 6, 166, final paragraph , of the Commercial Code does not give the aforementioned quality (useful to state that even the statute last recorded speech of vehicles), 8 .- The theory of attachment is a fundamental principle that informs the law Commercial. Consists of commercial assume certain acts as they relate to a profession, business or principal legal act of trade, either because they facilitate, contribute to increase it or do, or just guarantee it. Therefore, yes, as we have seen, the complainant and a civil, no merchant carrier status, can hardly be said that the act for which he sent his only truck to service or repair to civil complaints and petitions, is a act accessory to a quality that is lacking, or transportation entrepreneur. Ovalle Gonzalo Baeza The author wonders when transport, in accordance to the number 6 of Article 3 of the Code Trade acquires the characteristics that result in the gestation of a commercial transaction, and responds: This question can only reach a solution following the path of establishing, beforehand, whether or not transportation is provided by an enterprise. Only in the former case we estimate from there to be a commercial act, and in that event, the commodification of transport ascribe to the principle of the incidental nature (Business Law, Volume I, Lexis Nexis, page 326), 9 .- That, therefore, being the act in comment for commercial and civilian provider to consumers, or for Pereira Valdebenito, Law N º 19,416, according as provided in subparagraph a) of Article 2, is applicable to the subject matter of this cause, for these reflections, it reverses the decision of 02 August this year, written to fs. 160, and instead decides to reject a plea filed on fs. 137, no cost, estimated that there were plausible grounds for a guess. The court of first day and time fixed for the hearing pros eguir relevant, which was suspended at fs. 141. Refunded. Drafted Minister Guillermo Silva Gundelach. Role 1853-2005.