Article 19 of the Code of Commerce began to force all retailers to:
l. Enroll in the commercial register.
2. Enroll in the commercial register all events, books and documents on which the law requires that step.
These obligations are rooted in corporate merchants. Currently there are only imposed on those carrying on commercial activities, as they have been extended to numerous entities and documents which have little or nothing to do with these activities, as explained below.
I. Durability
INSTITUTION OF MEDIEVAL
1.
previous
The origin of the commercial register at the registration dates in the Liber Mercatorum corporations which introduced the merchants of the Middle Ages for those engaged in buying and selling of goods. In the beginning was not for publicity, but, by their nature highly personal, acted as a census of traders to fulfill the great council-assemblies of the respective body, and to require contributions to enrollees. The records were private rather to exclusive use of members of corporations. Subsequently introduced the registration of certain instruments and documents own business activities and became a media feature information for both members of the corporation and third parties. That was how the record became public.
The French Commercial Code of 1808 did not regulate this matter.
The English Commercial Code of 1829 adopted a dual registration with content: the registration of traders, not only as a means of advertising that condition, but also establishing a requirement of certain acts and documents. The Commercial Code of Chile withdrew from the English model, in the sense that the registration does not confer the quality of trader but was instituted as a means of commercial advertising, and the documents subject to registration emphasized in the writings of commercial society . The Commercial Code of the State of Panama extinguished abolished the institution of record for all traders and retained only for runners, change agents and auctioneers, and established as a requirement for registration of commercial companies in the social register of deeds.
In Colombia, Law 28 of 1931 ordered the registration all traders, industrialists, commission agents and representative of foreign companies and societies, statutory reforms and the appointment of manager and his deputies.
Each state of the international community has its own organization for registration. And, of course, a system is much better in terms of meeting the specifications of centralized, efficient, complete and provide assurance to employers and those with legal and economic relations with them. In fact, the ideal would be one in which the record were to indicate to the public not only the legal situation but also the employer's financial position, because that knowledge spreads confidence Credit facilitates and strengthens the security of transactions. This requires checking and balancing the information so that they are accurate and truthful. Additionally could meet statistical purposes or any other order related to economic activities.
2.
primary objectives of the Registry.
Article 26 of the Commercial Code states as the purposes of:
"Carry the registration of traders and business establishments and the registration of all deeds and documents regarding the which the law requires the formality. "
commercial traffic really transcends the sphere of private interests and enters the community at large. Hence the desirability of the public is in a position to learn from people entered in the register and the instruments, documents and situations that somehow affect others in general.
3. Guidelines from the trade register in Colombia.
a) It is for the Superintendency of Industry and Commerce to determine the necessary books, how to make entries and provide guidelines that tend to further of the institution (c. Co., art. 27);
b) The register is public and, consequently, any person may examine the books and records for, take notes of the entries or records and obtain copies thereof (art. 26, inc. 2 °)
c) The registration of traders and businessmen and the registration of deeds, contracts and documents should be in separate books by subject area, in extract form ratio that the substance of the act, document or event is registered, unless the law or stakeholders require full text insertion (rule 3 of art. 29 ibid.);
d) The means of proof of any entry in the commercial register are the respective certificate issued by the registrar and the court in this inspection.
e) Each employer, subsidiary or establishment is registered as a file which is archived in chronological order of filing, copies of documents to be registered (art. 43, inc.1o). and the document should be returned to the person concerned is enrolled through a copy of the text in the respective books or photocopying or any other method that ensures a legible its conservation and reproduction (art. 42). Moreover, judicial decisions and administrative subject to registration must be submitted in hard copy to be filed in the record of the registrant in question, and in a special book stands the record of delivery which must include the title of the officer who issued the ruling, order, class and date of it (art. 41) and
f) log files can be stored by any appropriate technical means to ensure accurate reproduction, provided that the president and secretary of the respective chamber certify the accuracy of such reproduction (art. 43, inc. 2).
4. Registration authorities.
The entities for maintaining the registry are the chambers of commerce (legal status).
In Colombia, no single, centralized records, but there are many records how many chambers of commerce work now or created in the future.
According to paragraph 1 of Article 29 of the Commercial Code, the acts, contracts and documents will be registered in the chamber of the constituency where they be held or given, and if they have to be outside the space field, also be recorded on the camera for the place of execution or performance. In addition, the functions assigned to the Superintendent of Financial Institutions, appears to issue the certificates on the existence and legal representation of the entities under their control and permanent control.
4.1 Effects of registrations
The primary function of registration is the advertising or informative, since the records contained therein are intended to enlighten the general public. Of course, this function should not be confused with the publication of certain acts or documents in newsletters or magazines of the cameras, which is not essential to its validity or to supply third party effects. Is registration which generates important consequences, such as:
4.1.1. Enforceability of act or document to others, because no one can claim ignorance of having been entered in that record is public. As provided in paragraph 4 of Article 29 of the Code of Commerce:
"Registration will be requested at any time, if the law does not set a special term for it, but the acts and documents subject to registration is not produce effects for third parties but from the date of registration. "
ibid Article 30 indicates the rate evidence: "A registration certificate is tested by the respective chamber of commerce or by judicial inspection in the commercial register."
4.1.2. To consolidate certain legal situations. This is what happens with the regular formation of societies (C. Co., Art. 112), or statutory reforms of the companies (art. 158 ejusdem), or the appointment of legal representatives and statutory auditors of a company (art. 164), or the appointment of liquidators, as only from the date of registration will be named the powers and duties of such (art. 228 ibid.
4.1.3. The formal simply correct deficiencies. For example, registered the deed of a company is presumed to be lawful from the formal point of view, and is no longer possible to attack but by background services (C. Co., Art. 115). So if that suffers from any deficiency purely formal, the registration is under purge.
4.1.4. To supply the documents that have been lost or destroyed. In this respect the provisions of Article 44 of the Code of Commerce:
In case of loss or destruction of a recorded document may be supplemented by a certificate from the Chamber of Commerce where it has been registered, which is inserted to be retained. The document thus supplied has the same probative value as to the original terms or facts stated in the certificate. The provisions of this Article shall not apply to recorded books.
4.1.5. The confer authenticity. Is that in the case of documents whose signatures are not presumed true, or have not been recognized before a judge or notary, is deemed authentic if presented personally by giving the secretary of the respective chamber of commerce (C. Co., Art. 40), because according to paragraph 2 of Article 252 of the Code of Civil Procedure a private document is authentic if it was registered in a public petition signed it. But if it comes to books protected by trade-book-the result is simply annotated formal authenticity.
4.1.6. Preventing or avoiding the confusion of trade names and emblems.
In accordance with Article 35 of the Commercial Code cameras registers must refrain from enrolling a settlement with the employer or other name already registered, while registration will not be canceled by order of authority or who request obtained. But when it comes to individuals, you may enroll same names, provided that applicants for registration subsequent to the respective add a distinctive name to avoid the confusion that always raises the homonymy. By the way, Guillermo Cabanellas refers to the imitation of the trade name or "as trademark counterfeiting, the use of a trade name similar to an existing others, especially registered commercial mode set offense. It is a of the expressions of unfair competition as it tries to confuse the general public rather than to the clientele of social reason: because it almost always well aware of the legitimate holder of a trade name and local traffic. The offense requires that the resemblance is very defined and try to exploit it, which is only consumed by the public use of similar designations.
4.2 The registration in the registry
not print by itself as a merchant or businessman, but it is a legal presumption of the exercise of commercial activities. In fact their role is primarily census. The omission does not imply that the employer or merchant no longer has that quality. In the case of subjects of legal and commercial relations, Article 28 indicates you should register: a) persons regularly engaged in trade, either individually or through joint ownership or companies; b) commercial companies (L. 222/95, art. 1 °), formed by public deed c) the employers freelancers, whether they are brokers, brokers, agents, representatives of national or foreign firms, etc..
The law requires registration of all property held by the employer to conduct his business, or establishment of , not as subjects but as objects of multiple legal relationships. Not to be confused with the concept of business (which is the activity ) done by setting (set up).
cameras to verify the accuracy of the information provided by the applicant for registration. In fact, Article 36 of the Code of Commerce the authority to require persons requesting enrollment data demonstrate summarily indicated on your application status items, certificates of other cameras or any other reliable means. And if such information appears at odds with the truth, the respective chamber must make a criminal complaint (Rule 38 ibid).
Registration must be renewed annually, within three months of each year, which means it is not definitive but temporary. Sole proprietors must report to the chamber where they are registered when they lose as a merchant, the change of address and other mutations relating to its business activities, in the same way that owners of commercial establishments and corporate legal representatives must register any act or document involving mutations, liquidation or termination of the agency.
Registration provides proof of the quality of trader because the registrar certifies every registration displayed on registration.
4.3 Registration of individual traders, condominiums and de facto corporations.
This statement will include condominiums and companies in fact because those who enroll are not collective entities, lacking personality, but all joint owners or partners, as appropriate (C. Co., S. 31. .)
The person who starts to exercise commercial activities must apply within one month following enrollment in the camera from his home constituency, for which supply the required data on preprinted forms she expends.
4.4 Registration of commercial establishments
Where an employer open an establishment must apply within thirty days, the corresponding registration. This inscription appears as note worthy to highlight the presumption that the owner of the establishment is who is on the registry. Of course, this is a legal presumption and, therefore, likely to be distorted.
4.5 Registration of companies regularly constituted
In this statement is referred to regular corporations, as the de facto and accidental or participation are not legal persons and, therefore, enrollment enroll all de facto partners (art. 31, inc. final) or active participant, as appropriate.
In the case of companies, the legal representative, based on the second copy of the charter, the registration request to the camera whose field include the place where the company establishes the principal residence. And if the charter includes the establishment of branches, copies of which are carried to the chambers for the locations of these secondary homes, when they are not within the territorial understanding of the camera principal residence.
5. Books, records and documents subject to registration
records shall register all legal acts and documents for which the law requires that requirement.
5.1 Registration of trade books
In order to ensure in principle the material integrity of the books belonging to a given person, the object is allocated and the number of pages useful, ordinal 7 of article 28 of the Code of Commerce sent the books to register, the registration of shareholders, minutes of meetings and meetings of members and the governing boards of corporations.
5.2 Registration of acts and documents
Following registration, the employer must register multiple acts and documents in order to be known by third parties in general. Article 28 of the Commercial Code mentioned, as well as trade books, the following:
a) copy of the public in the convention stating marriage when the husband and wife or one of the spouses is a businessman or entrepreneur;
b) Copy of the court order by which a marital liquid, when the husband and wife or either of them is a businessman or entrepreneur. If the spouses choose to dissolve or liquidate the conjugal partnership by mutual agreement, it must be included in a public (Ord. 5 of the art. 1820, Civil Code, as replaced by art. 25 of the Act 1a/76 ), in which case a copy thereof is made in the commercial register;
c) A copy of the ruling in which it is declared the injunction a sole proprietor;
d ) A copy of the ruling that imposed a prohibition on practicing trader trade;
e) Copy of certificate of office of officials disqualify the course of trade, verbigracia those mentioned in the ordinal 2 of Article 14 of the Code of Commerce.
f) The ruling ordering the initiation of the procedure for composition, as well as part of the protocol containing the concordat, together with the order that approves, additions or modifications to be agreed, must register with the cameras the home of the employer and the corresponding branches, agencies or establishments that considers the debtor. (Amended 1116, 2006 law - business reorganization)
g) The ruling ordering the initiation of compulsory settlement procedure, which involves a series of simultaneous filings, including the following: the appointment of a liquidator, the separation of the debtor in property management, and if a partnership, the decision involves the dissolution and suspension of its directors in the exercise of their duties or functions, etc.;
h) The removal or replacement of the liquidator.
i) The document through which the adult child's legal representative authorized to engage in commercial activities on behalf or on behalf of others and under the direction and responsibility of these (C. Co., art. 12, inc. final), or to intervene in the formation of societies in which they commit not unlimited liability (art. 103 ibid.);
j) Any act by which confer, amend or withdraw part or general administration of assets or business of the employer;
k) The opening of commercial establishments or branches, and the acts amending or affect the ownership thereof or its management. And any document of transfer of a business establishment, pledge, lease, usufruct, and any operations antichresis to transfer, limit or modify your property or the right to run, must be enrolled in the registry. Also have to sign documents stating the contract preposition, ie, which concerns the administration of an establishment or a branch of the activity carried on it;
l) liens and civil suits related to rights whose mutation is subject to registration in the commercial register;
m) The establishment, additions or amendments to the statute and the liquidation of companies;
n) The appointment of representatives Legal and liquidators of companies and their removal, and
ñ) Other acts and documents prescribed by law. It refers to a number of situations covered by provisions scattered in the Commercial Code, which must be in writing and whose registration is mandatory. In addition to the countless acts, documents and situations provided for in Title III of Book I of the statute, subject to registration, are examples mentioned in Articles 11, 114, 116, 147, 158, 160, 163, 165, 192, 196,219,228, 300,301,338,361,366,441,484,528 paragraph, 888, 953 second paragraph, 1210, 1213, 1320, 1333, 1335 of the Commercial Code; and in Articles 98 paragraph 6 °, 137, 141, 157, Nos. 3 and 6 and 199 of Act 222 of 1995.
6. Penalties for failing the registration formality
6.1 Managing . Article 37 of the Commercial Code provides that a person engaged in commerce without being registered in the register is liable to a fine of ten thousand dollars, to be imposed by the Superintendency of Industry and Commerce, and such penalty shall also apply where the omission of registration of an establishment. But a decree went beyond the substantive standard above and increased the ceiling several times the minimum wage, regardless of the codes can only be changed through legislation. Of course, the ultimate sanction rule is enshrined in Article 29 4a, whose final proposal stipulates that the acts and documents subject to registration will not produce effects for third parties but from the date of registration.
6.2 The sanction of unenforceability was established in Article 901 of the Commercial Code, which states:
"It will be unenforceable to any third party the legal transaction entered into without complying with the disclosure requirements required by law" .
Hence if the law no fixed term, the registration of any instrument or document may be requested at any time, be understood that while the registration is done, will be unenforceable to third despite its validity and to take their full effect between the parties or concerned.
7. Generalization of these duties (C. Co. Article 19, paragraphs 1 and 2 °)
The generalization of these duties is quite plain and simply mention about additional functions in recent times have attached to the chambers of commerce, namely: the registration of bidders and registration of nonprofit organizations and events and relevant documents.
a) registration of bidders
From the October 28, 1994, a year after the effective date of Act 80 of 1993 or the general status of civil service recruitment , chambers of commerce are the so-called registry of bidders with the same characteristics that set for commercial registration, renewable every year, with prices fixed by the National Government for cameras by way of registrations, renewal and updating and by the certifications on request.
For information about the relevant provisions are reproduced as well:
ART. 22 .- From the records of bidders. All natural or legal persons who aspire to celebrate with state agencies, contract work, consulting, supply and sale of personal property shall be recorded in the chamber of commerce in their jurisdiction and shall be classified and ranked in accordance with the provisions this article.
The Government will adopt a single form and determine which documents are strictly necessary that the chambers of commerce may require for registration. Also adopt the certification form to be used by chambers of commerce.
Based on the forms and documents submitted, chambers of commerce as a special register of registered classified by specialty, groups or classes according to the nature of the goods or services offered, and issue the certificates or information regarding the same request.
The certification will serve as proof of the existence and representation of the contractor and the powers of his legal representative and will include information related to the classification and qualification the registrant.
In relation to contracts executed include the amount expressed in present value terms, and the respective deadlines and additions. In the certification shall contain also data and information on compliance in previous contracts, experience, technical and administrative capacity, ratio of equipment and its availability, fines and penalties imposed and the term of (...).
registration of bidders will be public and therefore anyone can request to be issued certificates of registration, containing scores and ratings.
b) The registration of non-profit entities.
Article 40 of the Special Decree 2150 of 1995, abolished the act of recognition of legal personality of the civil organizations, the corporations, foundations, community action groups and other private non-profit and decided in the final paragraph:
"The entities referred to in this article, form a non-founding members or individually, from registration with the chamber of commerce with jurisdiction (sic) in the principal residence of the legal person is constituted. "
On the evidence of the existence and legal representation of these private law, Article 43 mandates that:
to be tested by the certification issued chamber of commerce authority, which will keep track of them, subject to the regime for commercial companies and on the same terms, rates and conditions governing their services.
Article 45 sets out the entities without profit to which the provisions do not apply before transcribed as follows:
1. Higher education institutions;
2. The institutions of formal and non formal education (L. 115, 1994);
3. Legal persons providing private security services;
4. Churches, confessions and denominations, federations and confederations and associations of ministers
5. Associations covered by social security law 100;
6. Unions and associations of workers and employers;
7. Parties and political movements;
8. Chambers of commerce;
9. Other legal persons for which the law expressly governs the creation and operation, which are subject to special rules.
As cooperatives, funds and mutual associations of employees and their integration bodies and auxiliary institutions of the cooperative, the provisions of Article 143 of Decree 2150 of 1995 to be established by a public or private document signed by all founding partners and will form a non-member individually considered when carrying out its registration with the chamber of commerce that corresponds to the primary residence. Article 144 adds that the registration of these entities will undergo the same treatment given to other private non-profit. Http://www.gerencie.com/registro-en-camara-de-comercio-de-las-entidades-sin-animo-de-lucro.html . At present this certification is issued by the National Superintendency of Economic Development.
transcribed provisions make it clear that, as well as plausible for the removal of unnecessary bureaucracy, sought to create new revenue streams and strengthen the assets of the chambers of commerce. This purpose is confirmed in the Regulatory Decree 427 of 1996, Article 10 reiterates that:
Legal persons nonprofit that in articles 40 to 45 and 143 to 148 of Decree 2150 of 1995 entered in the respective chambers of commerce in the same terms, with the same rates and conditions for the commercial register of the acts of commercial companies.
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