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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