historical evolution.
Absence of Commercial Law in Rome for two types of causes: a) Economic: 1. Small-scale farming for own consumption. 2. Slavery was the main economic activity of the time and did not arise from the nature of a slave, any business, b) legal: 1. Trade was mainly exercised by the pilgrims, regulated by the ius gentium and 2. When citizens it was exercised, the exercise of justice Praetorian was rather informal and based on good faith, so this system was sufficient to regulate such relationships.
MIDDLE AGES. Arises as a branch distinct from the others in the Middle Ages. From this stage we can speak of the existence of a regulation more or less organized and defined, which regulated trade relations.
In the middle ages, overcome the economic difficulties of the first phase (dark ages, cultural stagnation), was a great development of economic activities especially on the coasts of the Mediterranean, yet which the order of the day not responded well to the requirements of this development. The original law was essentially Roman, Germanic or canonical. The first was not flexible, the second is very bureaucratic and the latter is opposed to trade as a means of speculation and condemned usury.
The solution came from the traders themselves who created a system based on their own practice uniforms, which made public and repeated habits generated strong enough to serve as standards of market relations.
Then came the corporate statutes of traders (curia mercatorum): protection of the trade and real courts. The inscription in the book of the merchants (
freedom mercatorum
Over time, advances in commercial law aspects of legal technique and begin to appear the first signs of doctrine. The most prominent of which is news in this era is Stracca Benvenuto (1553) with his "Treatise on Trade and merchant."
legal manifestations.
1553 to 1560. Only had until this time the corporate bylaws. This year Bilbao ordinances enacted by Philip II, which also contain rules on insurance and maritime law.
1673 and 1681. Ordinances of Louis XIV. Regulate the land and maritime trade. Are very important for trade law because it means the more refined and systematic publication published until that date. Subsisting the subjective criterion but made significant progress in trade shows, obligations, etc.
1791. The Enlightenment and the French Revolution, based on the thesis on freedom and equality, so front facing corporations to merchants until the end point. The Chapelli on July 14, 1791, the declared months before having abolished freedom of professions.
1808. Napoleonic Code. Commissioned by Napoleon and missing corporations, the new challenge is to condense a system that would unify a harmonic regulations on trade that distinguish it from the Civil. These are in the activities of traders the foundation of the new law, identifying the common activities of traders, are standardized so that it could be argued that the supposed activity the almost necessary for a trader. This takes what we know today as the Commerce Act.
establishing the special tribunal of commerce (before consular) and is determined to take cognizance of acts classified as trading, irrespective of the person who makes it, enough that perform professionally. (Criterion Objective). So trade law, without eliminating the trader as such, passes into the acts of trade (Rocco). By focusing on commercial transactions, regardless of whether it runs or not the dealer, practically disappears the importance of subjective criteria.
COMPARATIVE LAW.
The expansion of commercial spectrum brought about by the Napoleonic Code, which sheltered many of the activities of the period, coupled trade growth in a crowded economy, lead to unifying trend championed by writers as Vivante, who states that the division of these branches is detrimental to law, increases the costs of separate processing, different regulation of acts basically the same, etc.
state interventionism and engineering.
classical schemes of commercial law have been affected by the phenomenon that some authors have called publificación private law, based largely on two factors: a) Regulations that limit the principle of freedom of contract in favor of the defense of others (workers, savers) and b) State intervention in the economy, with the adoption of principles of public law, as one in which the rights of the subjects are only those established by law, replacing the autonomy.
THE RIGHT OF INTEGRATION.
With the development of agreements on economic integration of states (European Union, G7, Andean Community), has emerged a new legal form called "Community law", which is a legal alternative to law member countries. Marks a milestone in the development of commercial law.
HISTORY OF COMMERCIAL LAW IN COLOMBIA.
A) COLONIAL PERIOD.
1737. The commercial activities of the Viceroyalty of New Granada, are governed by the ordinances of Bilbao, enacted in 1560.
1795. Commercial Consulate in Cartagena de Indias. Three trade bodies: A court of justice, a board of trade protection and promotion, and a general meeting (general assembly) of commerce, composed of merchants, shippers, sea captains and masters of ships.
1821. LA GRAN COLOMBIA. Constitution incorporates these old standards in national law (art. 188), what is not opposed to it (traffic laws).
Act May 13, 1825, provides among others, in order to be respected in the application of the law, ordinances, royal decrees and other regulations enacted by the English government until March 8 1808.
Act May 23, 1836, trading on judgments, provides that disputes would know of the acts that are covered by ordinances of Bilbao.
B) CODE OF THE STATE OF NEW GRANADA.
1853. It gives Code of Commerce by the Congress of New Granada, which includes most of the provisions of the English in 1829. Repealing the ordinances of Bilbao and other previous legislation.
1858. CONFEDERATION GRANADINA. Retained the commercial code of 1853.
1863. UNITED STATES OF COLOMBIA. Sovereign states resulting from the federal constitution of 1863, issued its own civil law, commercial, although some retained the code 1853.
1869. Promulgating the Code of the Sovereign State of Panama, which virtually copy a whole the commercial code Chilean land, within a
Trade
C) ORDER 410, 1971.
only until 1958, resumed the initiative to reform the legislative system commercial fund, which was extended in studies of commissions and legislative initiatives that were crystallized in 1971. A code which has been criticized precisely because its wording shows the interference of various groups of scholars, with inclusions last minute unfortunate.
The Code is divided into six (6) books: I. The businessman and trade issues; II. Commercial companies; III. Commercial goods, IV. Contracts and commercial obligations; V. Navigation (air and water) and VI. Commercial proceedings.
D) Act 222 of 1995.
is the most extensive and substantial reform that has been made to the Commercial Code, its main characteristics, which amended the Act are:
1. Subject to the same rules to civil and commercial companies.
2. Unifies the bankruptcy regime of merchants and traders not abolishing the civil bankruptcy.
3. Expressly repeal the system of civil societies, taking a step forward in the unification of private law.
E) Law 550 of 1999. BUSINESS REVITALIZATION ACT. Establishes a new regime for the revival of business in crisis, giving them special treatment, some protectionist rules that allow companies to conduct a restructuring agreement with creditors and avoid settlement, allowing them to recover financially. This rule was in force until 2007, since in that year the law enters into force 1116, 2007, through which restructuring the whole legal system in the country. It is known as the law of corporate reorganization or insolvency law. "
F) Law 1116 2006. BUSINESS REORGANIZATION ACT. Through that concordat is collected from individuals and dealers restructuring of legal entities of the law 550 of 1999, into a single scheme called "Insolvency".
G) LAW 1231, 2008. Through which exchange rate reform bill of sale and create new requirements for it.
Problems in defining
Alfredo Rocco: Set of legal standards that govern the relations arising from commercial industry.
suggests something less and something more. Suggests something less because there are many relationships that emerged from the trade, have to do with state issues (eg. Payment and statement tax under the tax law, obtaining licenses or permits entities v. gr. Planning permission to expand a commercial). From another perspective suggests something else, as well as industry, there are activities such as design, manufacturing, service provision, which would be subject to commercial law.
controlled by commercial law was not always the same and has not always existed as a distinct system.
In principle all economic fronts were governed by common law, but the inability q development and this had to understand and regulate gave rise to special rules, which were eventually creating a special law.
Roberto Mantilla Molina gives a definition that seems to be very comprehensive in stating that the commercial law is the set of rules determining its scope of business through the qualification that gives certain acts, and regulate the profession of those involved to celebrate. "
To my view, simplistic definitions sometimes offer a better understanding. I think the trade law, given its historical development and the prevailing system in Colombia, is simply "the set of legal rules that define and regulate commercial transactions and activity of those of working professionally with them. "
ORGANIC LAW UNIT.
Right The ordering principle of human behavior tends to ensure peaceful coexistence. Despite this substantial unity, has many meanings according to different needs that have raised the evolution and complexity of social relations regulated.
dualistic:
a) subjective law (power, power to require, give, do or not do something under a statute (eg, Testar, the right to request property ).
b) Right target (set of rules governing the legal relations of a community). You can refer to sense large French law, German, Colombian, etc. In a narrow sense, refers to the civil code, criminal, commercial, administrative.
c) positive law. Set of legal provisions that guide, regulate, discipline social behavior.
d) natural law, whose foundation is found in principles of justice, inspired by the divine (old) and the laws of nature.
e) public law regulates relations between the state and administered
f) private law regulates relations between individuals
.
Code
Colombian Trade value credited in articles 3, 5, 7 and 8.
tendency towards internationalization. This quality is closely connected with the historical role that the development of trade has had on the world. GARRIGUEZ states that the dispersion of political power in the Middle Ages after the fall of the Roman Empire, flourished a number of uses or practices born of the trade, often on the fairs, which concurred with many nationalities, v. gr. The bill of exchange which was used as a mechanism for payments abroad, completed applications to integrate the so-called lex mercatoria
the commenda
which was the forerunner of the modern commission (brokerage) through which could appoint a commission in a foreign country. Today this trend continues and is reflected in the many unifying tendencies of law, as is the case of UNCITRAL, the Andean Community and the decision 486, THE UNIDROIT, etc.
professional character. It is clear that the historical transformation of commercial institutions has been about the merchant, whose role in the old systems based on subjective argument, denoting the property of professionalism that is required to who holds such a quality. In fact, they reflect that fact that while trade law has evolved towards a goal, the doctrine still considered the company as structural factor of contemporary commercial law. The clearest evidence is the enhanced role of profession, trade code attributed to the merchant, in Article 10:
- ARTICLE 10. \u0026lt;COMERCIANTES-CONCEPT-CALIDAD>. Traders are people who professionally are engaged in any activity that the law considers commercial.
SPECIALTY RULES.
-
By historical standards business, training and customary rapid pace of evolving relations between traders, can be said to justify the existence of an autonomous market discipline, which specifically addresses the acts of trade and professional traders.
The very existence of the chambers of commerce and the series of trade law provisions governing trade issues different matter against civilians (eg solidarity Presumption of art. 825), rules on commercial leases (518 et seq.) denote the special character of these norms against the civil code, which has two very clear and important consequences:
- 1) The preferred application of its rules on trade issues. 2) the similarity of their own rules to regulate cases not covered by it.
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