Decree legislative n 1034-decree legislative that passes the law of repression of Anticompetitivas 25 conducts

OF JUNE 2008
The law is passed of repression of Anticompetitivas conducts, applicable to all those peoples that it carries out acts of abuse of position of dominion or practical collusive. For such effect, the applicable procedure is regulated for the denunciations in the presence of the commission of free competence of the commissioned INDECOPI, entity of investigating and sanction anticompetitivases conducts happinesses.

It is important to comment the main innovations that disposition happiness has with oneself: It is necessary the theory of the effects awarding you legal rank to theory happiness for which can be sanction conducts originated abroad that it have noxious effects and not single the committed in our territory. banish the modalities of abusive trainings explotativases, just as imposition of abusive prices, or the explotativa discrimination. It includes between the tipificadoses suppositions those of abuse of position of dominion that is to say for example obstruct to a rival the entrance or permanence in an organization of intermediacin, or use in an abusive way and reiterated judicial process in order to restrict the competence it who is from all illegal viewpoint. A comment aside deserves the per rule since it is returned for other restrictive trainings, the same that imports the possibility of sanctioning certain trainings that for the single fact of your celebration, on the border of the razonabilidads and without taking into account his effects in the market, no longer operated as before but that with the new normative sets aside to him that for supposition it firsts the rule of the reason for which single sanction practical only if it answer commercial reasonable motives and that it have noxious

repercussions in the market, which has logical and is just. Therefore this decree indicates in form explicita the trainings that constitute go to far of position of dominion or practical restrictive that are sanctioned and forbided. Although it is certain operates although restricted the rule of the reason, is not less certain that this legislation is but permissive since the vertical trainings are not annulled but restricted to effects of is sanctioned, as long as search for be bounded, pick or impede the competence. You are awarded faculties elders to the technical woman secretary of the commission the one which passes to be an organ not of support but an instructing being, with powers of investigation. In your complementary part forms up the derogatory thing of the articles 232,233 and 241 of the penal code that tipificabans the abuse of can economic, hoarding and the occlusion in declaring insolvent publics respectively, making the legislation but agile. It is important to believe the immediate diffusion of someone legislative decrees, and your proper regulation moreover foment forums of discussion between the lawyers and it makes knows to him them to the citizenship that then forms an important part of the consuming market.

The legislative decree 1034, law of repression of Anticompetitivas conducts General appraisal appreciation This law chooses for a model of control of conducts, without considering the control of structures ( control of fusions and acquisitions of undertakings ) that it is the prevailing model in all the countries that count

on an appropriate normatividads to preserve the frees competence and avoid the anticompetitivo conduct of the economic operators in power of attorney of the well-being of the consumer as protagonist of the market.

fit states precisely that the bill of defense of the competence, proposed by the INDECOPI in the year 2005, for your debate and approval it contemplated very precise dispositions on this persists, inspired principally in the integral reform of the community arranging European, specially in the ruleses ( czars ) 1/2003 and 139/2004, refered to the control of conducts and of structures, respectively, as well as in the law 25.156 ( Argentine, 1999 ) of the control of structures, of which lacked your antecedent of 1980 and also took into account to him the national European legislations, specially, those of Spain and Germany.

The competitive functioning of the markets requires an appropriate competitive legislation in order that it has economic efficiency, and today is necessary a major vigilance of the public powers so that the forces of the market develop to him efficient and effectively and in order that sufficient spaces encuentreses to grow in conditions of equality and of authenticate competitive effective conditions, with a normative square, appropriate, that it has under consideration the fees of the consumers.

The despenalizacion of the conducts of abuse of can economica It first that is necessary to analyze, it is if this modificacion is pertinent in the current moments of integracion of markets, where the economic dynamics it imposes a series of prejudicial conducts to the comfortably placed tutelary juridicoses for the dogmatic prison. Carneluti, it expressed that the fundamental rule of a norm is the symmetry,. that is to say an appropriate relacion that keeps equidistance between the legal prescripcion and the reality in she who operates upon the norm for guarantee of his addressees and of the juridco system in general. In this sense, is precise to study if the established despenalizacion answers the new tendencies of the market, the circulation of mercacanciases, the transference of technology, the mobilization of capitals, the influence of the inversions, the transfroterizacin of the business connectionses, the integration and enlargement of the markets, between other phenomenona that have with oneself the economic globalizacin. For other side, the new international economico order lays out again tambiens new challenges for penal dogmatica in funcion of the modern economy and of the redefinicion of the concept of undertaking, that goes but there of the classic concepcion of mercantile society; of the market and of the interests of the consumers. In effect, this law has derogated the articles 232,233

and 241 cut 3 of the penal code, fact that deserves be commented since destipifica and consequently despenalizas to him the conducts of abuse of can economic that fortuitously could have noxious effects for the economy and that it affect the interests of the consumers and of the system in general. Also it despenalizas to him the conducts of hoarding that injure seriously the interests of the public when there is an illegitimate substraction of the production to create conditions of artificial and obvious favorable commercialization to certain merchants that profit with the expectations of the consumers.

Concertacin of postures in the public contracting It also has derogated the article 242-3 that sanctioned to whom agreed between if with the object of altering the price, in the ends, public biddings and contests. This is a subject that deserves a special comment since not or it beens taken under consideration the fact of this conduct is a modality of the concertacin of prices sanctioned for the law of frees competence, whose penalization answers the fact of trade of acts of collusion and concertacin of postures in the public contracting in those who not single injures to him the game the competence, but also the interests of the own state in the measure that it is fond of your time the public buttoms because through them/it finance the purchases of the public sector, those

which can be seriously affected with the handling of the prices of bidders that unites the price between if for your benefit. Paradoxical the law stops in force the articulate 234 on speculation in which is established a sanction for the one that it sells products to superior prices to the official price fixed for competent authority, when in the current economic model exist entity that fixes the prices.

It decree legislative 1044, law of repression of the disloyal competence This law in your second derogatory disposition has stopped without effect the articles 238,239 and 240 of the penal code, those which were refered to economic crimes related with false informations on quality of products, sale of properties or service of different services to the announced and undue use of advantages of industrial or commercial reputation. In my opinion, the market is fill of growing pressures and extended where the commercial dynamics can take to anticompetitivases conducts that fortuitously overflow the dispositions merely administrative and constitute an illicit conduct of penal character that must be sanctioned to preserve precisely the good mercantile faith and avoid damages to the consumer that it is who finally sees exposed and harmed for the competitive disloyal act, because the game of

the competence must not be analyzed single from the perspective of the economic operators. There is that it has under consideration that which subyaces to the inside of the competitive disloyal norm, it is in essence the market, understanded like the well-being of the consumers and in that sense the penal legislation must keep these penal types to sanction to the responsible when corresponds. As it expressed Carnelutti, to know truly a norm " it is necessary to win them in your action never, not coarse know the formulae in which it is shut in and your history " and the formation of legal concepts must be fited to certain rules, and the fundamental rule is the symmetry, interest as much as establishes to him and formulates the right side, but like carries out to him, that is to say as operates upon a norm in the reality for the who has been created, that is the important thing It decree legislative 1044, complementary law of the system of protection of the consumer This law deserves a special comment as long as there is varying dispositions that worry to the consumers and that it need revise . For example the subject of the reasonable consumer is very risky because the figure of the reasonable consumer that went a creation of the jurisprudence of the Indecopi incorporated now to the law, if it interprets in a restrictive way can conduct inevitably to desproteger to a thick sector of consumers, because in

agreement with the performance of the law, the majority of common consumers and currents of our country that doesn't make analysis to buy and that not have the conditions of ordinary diligence never daily are not protected for the law, that is to say that for INDECOPI it is consuming clumsy or irrational, those who doesn't know conduct in the market and therefore don't deserve juridical guardianship. The reasoning of the INDECOPI is excessively theoretical with the risk of desprotegering to the consumer, more still in economies of imperfect and atypical market like the our where the access to the information it is scarce and the conducts of the agents are ineficienteses What it will pass in the country with the consumers moderately informed but not well-educated, when they seat that who must tutelary his straight doesn't make it because demands you that is analytic, cultivated and reasonable, somewhat that it has to see generally with the level of education, means that it is insufficiently supplied for the state and that it is moreover avoid and expensively in some cases for a people that read because doesn't know, or that know because read; not forget that the Peru, according to the INEI it has 12.1% of illiterates Being in agreement in which necessary educate and train to the consumer because the development doesn't depend only of the competitividads and of the quality of the suppliers undertaking of properties and services in the market, but also of the suitable conduct of the consumers in front of a report of

consumption and in that context the quality depends also of those who buy, but it not can take each other to the extreme of creating in path of performance a reasonable consumer that single has an ideal existence or at least very limited protecting single a very reduced sector of consumers pretendedly rational. The important thing is that the task of interpreting the normative reaches of the concept of consumer is an appropriate drill that permit each other exclude to whom if they must be protected, keeping in mind that: in an economy of imperfect market like the our, the information is a scarce means, the economic agents bear in an atypical way and which it is but burdens exist citizen conscience of the role of the consumer, that is to say there is not culture of consumption and for other side exist culture of market of the suppliers

Constitucion Peruvian of 1979 v 1993

POLITICA CONSTITUCION OF THE PERU DE 1979 ( HAS TO THE TOWER ) V 1993 (FUJIMORI) MODEL ECONOMICO CONSTITUCION DE 1979 Article 110.The economic rate of the republic is laid the foundations of in principles justly social found one's bearings to the dignification of the main work as source of wealth and as halfback of realization of the human person. The state promotes the economic and social development by means of the increment of the production and of the productivity, the rational use of the resources, the plenum emploies and the equitable distribution of the entrance. With equal end, it foments the diverse sectors of the production and defends the interest

of the consumers. CONSTITUCION DE 1993 Article 58. The private initiative is free. It practices in a social economy of market. Below this rate, the state finds one's bearings the development of the country, and acts principally in the areas of promotion of employment, health, education, security, public services and substructure. ECONOMICO PLURALISM CONSTITUCION DE 1979

Article 112. The state guarantees the economic pluralism. The national economy is sustained in the democratic coexistence of diverse property of forms and of undertaking. The state undertakings, private, cooperative, autogestionadassed, communal and of any other modality act with the juridical representation that the law indicates in agreement with his characteristic. Article 113. The state practices your managerial activity in order to promoting the economy of the country, they give one's services publics and reach the objectives of development.
CONSTITUCION DE 1993 Article 60. The state recognizes the economic pluralism. The national economy is sustained in the coexistence of diverse property of forms and of undertaking. Only authorized for express law, the state can subsidiarily carry out managerial activity, direct or indirect, for reason of high public interest or of manifesting national convenience. The managerial activity, public or not public, receives the same legal treatment. MANAGERIAL ACTIVITY OF THE NATIONAL AND FOREIGN STATE, INVERSION CONSTITUCION DE 1979

Article 114.For cause of social interest or national security, the law can reserve for the activity state productive or of services. For equal causes can also the state establish reserves of activities happinesses in favor of the peruvians. Article 115.The private initiative is free. It practices in a social economy of market. The state stimulates and regulates by rule your drill to harmonize it with the social interest. Article 117.The foreign trade is free in the limitations that the law decides for reasons of social interest and of the development of the country. The state promotes the cooperation between the peoples to reach an economic order just International.
CONSTITUCION DE 1993 Article 62. The freedom of contracting guarantee that the abilities can come to an agreement valid according to the effective norms to the time of the contract. The contractual terms cannot be modified for laws or other dispositions of any class. The byprouct conflicts of the contractual report only solve in the arbitral path or in the judicial, according to the mechanisms of foreseen protection in the contract or contemplated in the law. By means of contracts-law, the state can establish guarantees and award securities. Cannot legislative be modified, without harm of the protection to that is refered the preceding paragraph. Article 63. The national inversion and the foreign secure to the same conditions. The production of properties and services and the foreign trade is free. If other country or countries adopt measured protectionists or discriminatory that harm the national interest, the state can, in defense of this one, adopt similar measures. EXPROPIACION CONSTITUCION DE 1979

Article 125.The property is inviolable. The state guarantees him/her/it. to nobody it can be deprived of

the his but for cause by necessity and utility publish or of social interest, deposed in accordance with law, and previous the payment in money of an indemnification that must be paid necessarily in money and in form previous.
CONSTITUCION DE 1993 Artculo70. The right side of property is inviolable. The state guarantees it. It practices in harmony with the commonwealth and in the limits of law. to nobody it can be deprived belonging to him but, exclusively, for cause of national security or public necessity, deposed for law, and previous payment in cash of indemnification estimated that includes compensation for the eventual harm. There is action in the presence of the the judiciary to answer the value of the property that the state has indicated in the expropiatorio procedure. you are bounded to the drill of the property CONSTITUCION DE 1979

Article 127.The law can, for reason of national interest, it establishes special restrictions and prohibitions for the acquisition, possession, exploitation and transference of certain properties for your nature, condition or location.
CONSTITUCION DE 1993 Article 72. The law can, only for reason of national security, it establishes temporarily specific restrictions and prohibitions for the acquisition, possession, exploitation and transference of certain properties. STRAIGHT LABOR CONSTITUCION DE 1979

Article 48.The state recognizes the right side of stability in the work. The single heron can be hurled for causes joust, indicated in the law duly verified. Article 44.The ordinary event of work is of eight daily hours and of forty and eight weekly hours. Can be

reduced for collective agreement or for law. All work carry out outside of the ordinary event it remunerates extraordinarily. The law establishes norms for the night work and for the one which carries out to him in condition unhealthy or dangerous. decide the conditions of the work of minors and women. The herons have right to rest weekly remunerated, annual paid holidays and compensation for time of services. Also it has right to the rewards, bonuses and other benefits that indicates the law or the collective agreement.
CONSTITUCION DE 1993 Article 27. The law awards to the appropriate heron protection against the arbitrary discharge. Article 25. The ordinary event of work is of eight daily or forty hours and eight weekly hours, as maximum. In the case of accumulative or atypical events, the average of hours worked in the corresponding period cannot surpass this maximum. The herons have right to rest weekly and annual remunerated. Your enjoyment and your compensation regulate for law or for agreement. SOCIAL SECURITY CONSTITUCION DE 1979

Article 16.The the executive indicates the national politics of health. Controls and supervisa your application. foment the appointed to initiatives to enlarge the cover and quality of the services of health in a pluralista rate. It is responsible for the organization of a national system decentralized and desconcentrado, that plans and coordinates the integral attention of the health through public organisms and favorites, and that facilitates to all the equalitarian access to his services, in appropriate quality and with tendency to the gratuidads. The norm law your organization and functions.

CONSTITUCION DE 1993 Article 11. The state guarantees the free access to services of health and to pensions, through public entities, private or mixed. Supervisa also your effective functioning. The law establishes the entity of the national government that administers the rates of pensions in charge of the state. STRUCTURE OF THE STATE CONSTITUCION DE 1979 Article 164.The congress composes to him of two chambers: The senate and the chambers of Deputies. During the separation it functions the permanent commission.

Article 238.The supreme cut formulates the project of budget of the judiciary. It postpones it to the the executive for your inclusion in the project of general budget of the sector publishes. It can it sustain in all his stages. The budget of the the judiciary is not smaller of the two by the hundreds of the budget of running expenseses for the central government.
CONSTITUCION DE 1993 Article 90. The legislative power resides in the congress, which consists of only chamber. The number of members of a congress is of twenty one hundred. The congress is selected for a period of five years by means of an electoral process organized in accordance with law. The candidates to the presidency cannot integrate the candidate lists to members of a congress. The candidates to vice-presidents can be simultaneously candidates to a representation to congress. To be member of a congress elect requires to him is Peruvian from birth, it have fulfilled twenty-five years and it enjoies the right side of suffrage.

The economic chapter of the constitution of 1993 is own of a neoliberal outline, because limits the role of state,

The neoliberal outline own of the constitution of 1993 limits the role of state in your economic chapter. That went the reason for which the commission of bases for the constitutional reform of the 2001 proposed your modification during the transitory government of Valentn Paniagua, according to indicating the jurist it lower and thicker end of a lateen yard steel blade who the integrated near outstanding colleagues. Commission happiness concluded that the " neoliberaleses principles " of the Magna Charta returned him/her/it very rigid, being bounded even to the state in your fight against the social inequality. The constitution of 1979 contemplates on the other hand a promoter state, without that is important reaches to the statism or interventionism. " the economic model that has the current constitution is a very rigid model, that tries to get freeze a neoliberal outline, that leave option for other sew, and that it has been bounded great deal the activity of the state in the social subject ", indicated white.

The proposal in the 2001 searched for not only the reform of the economic chapter but of all the constitution, which detuvo the process went an action in the presence of the court