Trials Groups in Chile
The July 14, 2004, were published in the Official Journal, the amendments to the Consumer Act. One of its greatest advances was the creation of the actions of collective or diffuse interests of consumers and users. Through the collective wisdom consumers can get massive solutions through a single management.
collective procedure in Chile has been a positive and important step to enhance the protection of consumer rights, reducing litigation costs, through the accumulation of several cases under the same action and the same procedure.
So For example, if a company fails to respond directly to your customers, the law provides that the Consumer Associations (ADCs), a group of 50 or more affected or the National Consumer Service (SERNAC) where there is a single large lawsuit to defend the collective interest or diffuse and so the company respond to court.
That is, if a consumer or user realizes that a situation that violates their rights as consumers and, if satisfied that affects others, has three paths, if mediation or court settlement had no effect. Seek
SERNAC to assume its defense to a ADC or bring 50 or more persons who have been individually affected and present the case directly in court.
If collective action is the result benefits all who have the problem, whether or not involved in the application, ie, has no effect "Erga Omnes" Processed
due process or trial, the supplier or service provider , who committed an offense can be punished, forced to cancel the unfair terms incorporated in contracts of adhesion, and users get the benefit of the obligation breached, stop the act that is affecting the exercise of their rights or obtain compensation for damages if applicable.
These initiatives are important because consumers means to obtain direct and efficient solutions in cases where generally the cost of individual claims exceeds the benefit of the claim. In addition, positive impact on respect for the rights of consumers, discouraging the massive infringement.
Stages of Trial Class.
A mass trial can be initiated by an ADC (for a minimum period of 6 months and with the express permission of the assembly members), a group of 50 or more affected or the SERNAC.
After the case is filed to the Courts of Justice, the processing corresponds to the Civil Courts, the court shall notify the respondent and the SERNAC.
then corresponds that the judge declare the admissibility of the action, verifying, in general, to observe the legal requirements and economic and procedurally justified demand.
Once declared the application admissible, the court shall order that, through two publications in national newspapers, are informed consumers, so that those affected can:
-Become part to bring in the trial.
-Do reserves its rights (within 30 days after the second publication) who did not want to apply to them the effects of demand.
-Waiting for the results of the trial, so that may be applicable for the purposes of sentencing, without it being necessary no management.
In a second stage, the court will examine whether there was actually initiated the infringement claim, and the award may:
• determine the responsibilities of the provider
• impose fines or penalties for the provider
• rule and order the payment of compensation, reparations and the amount
• order the return of overpaid (if that was the cause of action)
• order the return of sums for defective products (if that was the cause of action)
• the publication of the sentence for his knowledge public.
stage for damages, if there was a breach, there was harm to consumers and users, provided that the respondent has the form of identifying those affected, the court may require the supplier to directly deliver compensation, repair or returns, without the need for stakeholders to appear before the court.
If it is not possible for the supplier or service provider to identifying the affected, will be published two notices in the newspapers that the court determines, public notice will be given for people who are interested in appearing in court may do so within within 90 calendar days from the last notice, either sponsored by an attorney or in person. For those who appear in person, be appointed joint attorney. Those wishing to reserve their rights, shall also, within 90 calendar days from the last warning.
Then, the court shall inform the company concerned the amount appearing to be opposed to the number indicated.
After that will set the amount of compensation and the defendant shall within 30 calendar days to make a deposit in the current account of the court.
Remarkably, as already said, the ruling handed down at trial will reach all people who have been affected in their rights, even if they are not party to the lawsuit. Now
well, this is the ideal described by the legislature, so that the procedure works and enforce the law, however in practice and in the exercise of the profession, we can see, unfortunately through the cracks legal, business, expand and transform the trial proceedings, which should be fast and effective in a trial of broad knowledge, high cost ultimately to the ADCs and even more impossible to take in that case that the legitimate asset is a group of 50 or more consumers, who met as to present the application and ultimately can not bear the economic costs and proceedings of the causes at issue.
is lacking in our system a real training of judges, as they often get to know the law insofar as they deserve to know a cause of diffuse or collective interest, it also has to do with their academic training is profoundly civilian, so it does not properly apply the special procedures of the Consumer Protection Act.
Finally, we can say that despite the problems that arise, the procedure is clearly improved, and correspond to all actors in Chilean society (legislators, government, civil society, business) work, for this to work, on the other hand, the fact that to date only been reported in Costa Rica about 30 cases of collective or diffuse interests of consumers, made by land the biggest fear of companies in the sense , that regulate this type of action would be transformed into a kind of supermarket demands or industry demands, which would prevent the market from working.
* Pedro Carreño Farias is a lawyer at the Catholic University of Chile and a specialist in consumerist legislation.
The July 14, 2004, were published in the Official Journal, the amendments to the Consumer Act. One of its greatest advances was the creation of the actions of collective or diffuse interests of consumers and users. Through the collective wisdom consumers can get massive solutions through a single management.
collective procedure in Chile has been a positive and important step to enhance the protection of consumer rights, reducing litigation costs, through the accumulation of several cases under the same action and the same procedure.
So For example, if a company fails to respond directly to your customers, the law provides that the Consumer Associations (ADCs), a group of 50 or more affected or the National Consumer Service (SERNAC) where there is a single large lawsuit to defend the collective interest or diffuse and so the company respond to court.
That is, if a consumer or user realizes that a situation that violates their rights as consumers and, if satisfied that affects others, has three paths, if mediation or court settlement had no effect. Seek
SERNAC to assume its defense to a ADC or bring 50 or more persons who have been individually affected and present the case directly in court.
If collective action is the result benefits all who have the problem, whether or not involved in the application, ie, has no effect "Erga Omnes" Processed
due process or trial, the supplier or service provider , who committed an offense can be punished, forced to cancel the unfair terms incorporated in contracts of adhesion, and users get the benefit of the obligation breached, stop the act that is affecting the exercise of their rights or obtain compensation for damages if applicable.
These initiatives are important because consumers means to obtain direct and efficient solutions in cases where generally the cost of individual claims exceeds the benefit of the claim. In addition, positive impact on respect for the rights of consumers, discouraging the massive infringement.
Stages of Trial Class.
A mass trial can be initiated by an ADC (for a minimum period of 6 months and with the express permission of the assembly members), a group of 50 or more affected or the SERNAC.
After the case is filed to the Courts of Justice, the processing corresponds to the Civil Courts, the court shall notify the respondent and the SERNAC.
then corresponds that the judge declare the admissibility of the action, verifying, in general, to observe the legal requirements and economic and procedurally justified demand.
Once declared the application admissible, the court shall order that, through two publications in national newspapers, are informed consumers, so that those affected can:
-Become part to bring in the trial.
-Do reserves its rights (within 30 days after the second publication) who did not want to apply to them the effects of demand.
-Waiting for the results of the trial, so that may be applicable for the purposes of sentencing, without it being necessary no management.
In a second stage, the court will examine whether there was actually initiated the infringement claim, and the award may:
• determine the responsibilities of the provider
• impose fines or penalties for the provider
• rule and order the payment of compensation, reparations and the amount
• order the return of overpaid (if that was the cause of action)
• order the return of sums for defective products (if that was the cause of action)
• the publication of the sentence for his knowledge public.
stage for damages, if there was a breach, there was harm to consumers and users, provided that the respondent has the form of identifying those affected, the court may require the supplier to directly deliver compensation, repair or returns, without the need for stakeholders to appear before the court.
If it is not possible for the supplier or service provider to identifying the affected, will be published two notices in the newspapers that the court determines, public notice will be given for people who are interested in appearing in court may do so within within 90 calendar days from the last notice, either sponsored by an attorney or in person. For those who appear in person, be appointed joint attorney. Those wishing to reserve their rights, shall also, within 90 calendar days from the last warning.
Then, the court shall inform the company concerned the amount appearing to be opposed to the number indicated.
After that will set the amount of compensation and the defendant shall within 30 calendar days to make a deposit in the current account of the court.
Remarkably, as already said, the ruling handed down at trial will reach all people who have been affected in their rights, even if they are not party to the lawsuit. Now
well, this is the ideal described by the legislature, so that the procedure works and enforce the law, however in practice and in the exercise of the profession, we can see, unfortunately through the cracks legal, business, expand and transform the trial proceedings, which should be fast and effective in a trial of broad knowledge, high cost ultimately to the ADCs and even more impossible to take in that case that the legitimate asset is a group of 50 or more consumers, who met as to present the application and ultimately can not bear the economic costs and proceedings of the causes at issue.
is lacking in our system a real training of judges, as they often get to know the law insofar as they deserve to know a cause of diffuse or collective interest, it also has to do with their academic training is profoundly civilian, so it does not properly apply the special procedures of the Consumer Protection Act.
Finally, we can say that despite the problems that arise, the procedure is clearly improved, and correspond to all actors in Chilean society (legislators, government, civil society, business) work, for this to work, on the other hand, the fact that to date only been reported in Costa Rica about 30 cases of collective or diffuse interests of consumers, made by land the biggest fear of companies in the sense , that regulate this type of action would be transformed into a kind of supermarket demands or industry demands, which would prevent the market from working.
* Pedro Carreño Farias is a lawyer at the Catholic University of Chile and a specialist in consumerist legislation.
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