alter Taken and edited are committed to academic purposes of the book "Institutions of Commercial Law."
Author: Carlos Alberto Velásquez Restrepo, said Editor
1. GENERAL.
The vendor has an obligation, in accordance with Article 19 of C. Co., enroll in the commercial register, books, instruments and documents on which the law requires that formality bookkeeping and preserve under the law, correspondence and documents relating to its business or activities.
These books required for the merchant, are those who must carry under the law and may be required by the authorities, are essential to account for the merchant business and, for them, there are few prohibitions . Article 49 of C. Co., states that it means business books that should be mandatory by law, and the necessary auxiliary for the complete understanding of those. The papers would be correspondence, accounting vouchers and supports it.
auxiliary books are books of detail, where they sit or record the details of each and every one of the operations of the merchant. The main changes are short books, recording the total numbers, drawn from the detail that gives each of the ledgers, so the trader must bear the principal books which it considers best suited to the nature of your business and all auxiliaries are deemed necessary for the complete understanding of the principals.
If
trader breaches the duty to register their trade books, not for the fact the respective chamber of commerce may be removed from the list of members, because she has no legal powers to punish them, unless this is agreed in their statutes. In addition, it is worth remembering that one thing is the registration and other affiliation, and that while the former is due to the completion of a legal duty to be carried out every merchant, the second reflects the will of the trader who is subjected to this act, the statutes of the Chamber of Commerce and is free to join or not to do it. Of course, if the trader does not register his books is subject to a drastic sanction of loss the probative force thereof.
1.1 pounds
Accounting records are those in which the trader takes a chronological record of all your business operations. The basic principle to be taken into account in any accounting is that it must be so as to constitute a clear history, complete and reliable information from the merchant's business, in a way that its inspection is possible to know not only each particular business but the general condition of the assets of the trader and the favorable or unfavorable to their commercial activities (art. 48 of C. Co.).
As a result, Article 53 of C. Co., states that the books should be entered chronologically and all business operations that may affect the assets of the dealer, referring to media accounts and vouchers that support them.
The Code does not prescribe any system or technical process to commercial bookkeeping, because this is not a legal issue, but rather a problem of technical accounting competence.
For this reason, the Commercial Code does not prescribed as mandatory these or those books, on the contrary has established a system of freedom accounting, under which each trader, according to the nature of their business and the accounting requirements of science, is the one to decide what and how many books should lead to their accounts is complete. The Commercial Code required to be compulsory, and the book inventory balance, the newspaper, the largest and the copying of correspondence.
The Directorate of National Taxes and Customs-DIAN, for tax purposes, and the Superintendency of Companies, which monitors companies, however this silence or freedom accounting, have interpreted that every trader should take the book of inventories and balances, a journal and more. The State Council, in its ruling of February 6 (6) in 1998 confirmed this view by stating that ".... from Article 52 of the Commercial Code, which requires the dealer to begin operations and at least once a year to prepare an inventory and balance sheet as to show a clear and complete picture of their heritage, there is the legal obligation to carry the book "inventory" and "balances".
"from Article 53 of Commercial Code, which requires the settlement chronology of the operations, and application requirements, line double, the need to carry books, "daily" and "greater."
However, the same Council of State in March 1999 ruling, presiding magistrate Daniel Manrique Guzman, takes the philosophy of the Commercial Code does not establish as mandatory these or those books. The reason was due to return to that philosophy but a society that did not carry the book "Journal" titled as such, if you had a book called "balance and ancillary business NIT" in which were recorded in chronological order all operations . The conclusion to be drawn, then, is the important thing is not to take this or that ledger with a particular denomination, but the important thing is to keep records at any time to establish the factual and economic situation of the company and establish the taxable bases of the taxes it must pay.
The Code of Commerce Article 48 authorizes the use of systems that facilitate the care and file of correspondence and the use of a recognized accounting procedures in order to lay the operations to meet order. However, there are rules on the sidelines of the Commercial Code regulating accounting terms, and we find the decree 2649 of 1993, which we refer later.
2. ACCOUNTING.
2.1 General
We can say without a doubt, that accounting has been one of the key aspects that both the legislature and executive, have been concerned with consistently regular with a clear purpose, which is basically to enable the country's economic reality, first, for without a clear accounting system, systematic and transparent, it is impossible to develop a capital market and on the other, with order to streamline reporting by reducing the volumes of documentation. In 1986, promulgated accounting principles until 1990 but only became a reality the regulations of the books of merchants and accounting extra information. After much work was actually the only plan of national accounts, which does not mean that it is almost for transparency and clarity of information for businesses and the enforcement of these, however, lies our accounting system today over the systems of many countries.
While the regulation itself is important, more important Moreover, the mechanisms and actions to ensure compliance. So that lack focus regulatory action in the areas of government oversight in monitoring the practice of accounting and to promote compliance with the principles by the private sector. Consider the number of decrees were issued in the year 1993 in terms of accounting regulations when the above were just beginning to be applied.
As later we will have the opportunity to study, the new statute book departs from the trend of the Commercial Code in that the accounting is an obligation only for traders, by contrast, the same as it is preached that all operations that may affect their property, including personal, but can appreciate some improprieties, previously were exempt from registration ledgers, forget the right to request the authorities to postpone the measure of production of books, not regulated the issue of spaces when the books are produced by mechanical means, etc..
Article 1 of Decree 2649 of 1993, defines the principles and standards generally accepted in Colombia, as "the set of basic concepts and rules to be observed the accounting records and reports on issues and activities of individuals or corporations ... ", So that the accounts constitute an instrument to measure, identify, classify, record, interpret, analyze, evaluate and report the operations of an economic entity (business or economic activity organized as a unit, for which is predicated on control of resources, identified and defined in such a way as to distinguish them from others. Art. 6).
2.2 The financial statements and their elements
financial statements are defined as "the principal means to provide financial information to those without access to the records of an economic entity, which must be submitted by the manager. are comparable when the figures are more than a date, time or economic entity, are certified which are signed by the legal representative and the accountant of the company under whose responsibility has been prepared, and are being audited certificates that are accompanied by the professional opinion of the auditor or, failing this, the CPA independent subject has examined the generally accepted auditing standards (articles 32 and 33).
Financial statements should be prepared on the basis of the books that have settled the respective accounting vouchers, and before being issued administrators should ensure that the statements, express or implied, of each of its elements are true. These statements are: the existence of operations, liabilities and assets to the court date, integrity, ie that economic events are recognized, rights and obligations represented by the assets and liabilities likely respectively obtained by the economic entity to court date, valuation or all elements have been recognized by appropriate amounts and presentation and disclosure of relevant economic facts to proper classification, description and disclosure (art. 57).
EI Technical Council of Public Accounts has determined that the auditor should do to dictate the financial statements, thus:
a. You must declare that these statements were made in accordance with the rules established for this kind of review.
b. Should identify the financial statements under review.
c. Should describe the procedures performed.
d. If it is reviewing interim financial statements must state that the MTR is smaller in scope than an audit in accordance with generally accepted auditing standards.
e. Finally, you must declare that the figures of the financial statements are in full compliance with the accounting records of the society.
Within the financial statements are:
general purpose financial statements : Those who are prepared at the end of a period users known to be indeterminate, with the aim of satisfying main common interest of the public to assess the ability of an economic entity to generate positive cash flows. These must be characterized by its brevity, clarity, neutrality and easily. should prepare and present as compared to the preceding period, provided that these periods have had the same duration. Otherwise, the comparison must be made on financial statements prepared to show the same period of the cycle of operations. if the comparison is relevant, not mandatory, but that fact should be recorded in the financial statements. These statements in turn can be:
basic financial statements, consisting of the balance sheet, income statement, statement of changes in equity, statement of changes in financial position and cash flow statement.
Consolidated statements are those that present the financial position, operating results, changes in equity and financial position, cash flows, a parent and its subordinate body, or a body dominant and the dominated, as if they were one company.
Estados financieros de propósito especial . Son los que se preparan para satisfacer unas necesidades específicas de ciertos usuarios de la información contable. Se caracterizan por tener una circulación o uso limitado o por ser más detallados en cuanto a la información que presentan. Estos estados financieros son: el balance inicial, los estados financieros de períodos intermedios, los estados de costos, el estado de inventario, los estados financieros extraordinarios, los estados de liquidación, los estados financieros que se presentan a las autoridades con sujeción a las reglas de clasificación y con el detalle determinado por éstas y los estados financieros preparados sobre una base comprensiva accounting other than accounting principles generally accepted.
is important to note that the financial statements prepared on a comprehensive basis of accounting other than accounting principles generally accepted are those that are produced either by order of the authorities or by private agreement for exclusive use in order to meet specific needs. There are other comprehensive basis of accounting, used to prepare tax returns, accounting based on cash received and disbursed, and in some cases the basis used to answer requests, etc.
Financial statements should have the elements, assets, liabilities, equity (which related to one another to determine fairly the financial position of the economic entity at a given date), revenue, costs, expenses, monetary correction (which properly associated throw the result of the period) and accounts (contingent trusts, tax and control).
The recognition of the facts constituting the accounting information is the process of identifying and formally registered or incorporated in the accounts made economic events, which is necessary for appropriate one of the facts of the financial statements, that is measurable, relevant and reliably represented (art. 47).
economic events should be recognized for its historical value, applying as necessary the basic rule of prudence, but once restated as a result of inflation, must conform to the current value realizable value or present value.
transactions be recognized in the functional currency is the Colombian peso, when the transaction takes place in other units of measurement should be recognized in the functional currency using the conversion rate applicable at the time of its occurrence. May exceptionally be allowed, the filing or registration of accounting information in other units of measurement, provided they can develop at any time in functional currency.
order to register properly in the respective accounts, the economic facts must be classified according to its nature and based on an accounting system previously developed by the economic entity.
Prior to issuance of financial statements in order to meet the standard mapping technique (art. 54), must be registered economic events that have not been made known, correct seats incorrectly facts and recognize the impact of the loss of purchasing power of the functional currency (art. 58). Likewise, in the closing period, you must recognize the effect of the information then known to the court date and before the issuance of financial statements when providing additional evidence about conditions that existed before the closing date.
2.3 The media
economic facts that constitute the accounting information must be documented by media, internal or external source, dated and approved by those involved in them or elaborate. The brackets are then the documents which consist of legal acts or contracts which are born economic facts.
These media should adhere to the respective receipts, or keep them filed in chronological order so that verification is possible, noting that.
The media can be stored in the language in which they were granted Yser used to record transactions in the ledgers.
2.4 The accounting vouchers
are those documents that serve to support the games settled in the abstract books and one in which to settle transactions in chronological order. They must be prepared in advance based on media accounts, using any means but always in Castilian.
These vouchers must meet certain requirements, such as: numbered consecutively, indicating the day of preparation, the people who prepared and authorized, the date, origin, description and value of transactions (description can be with words, signs or symbols of numbers, in which case the respective ledger, record the list of symbols or codes used) and the accounts that are affecting your seat. (Art. 53, inc. 2 º C. Co.).
2.5 The accounting entries
Based on the proof supported, the operations must be recorded chronologically in books, not later than the month following that in which they had conducted, a term which should be summarized in the debit and credit movements in each account and set your balance. Books must be brought in Castilian language and the double entry system. The errors committed on the occasion of the seats, must be saved with a new entry on the date found.
2.5 Aspecto probatorio
Desde el punto de vista de valor probatorio de los libros de contabilidad, casi siempre son más importantes los auxiliares que los principales, porque el juez o los peritos no van en busca de cifras totales sino que persiguen determinar ciertas operaciones en particular, esas que consten en los libros auxiliares, para verificar si fueron realizadas, o no y su cuantía.
Aun cuando todavía se acostumbra en cierta medida llevar libros de contabilidad, se ha vuelto anacrónico este sistema, porque con la automatización de los sistemas contables, ya no es posible think of books, but rather in sheets or continuous series cards. The Commercial Code, providing for the modernization of accounting, in Article 56 expressly authorizes it to be worn well, but in any case, the removable sheet or continuous cards must be numbered so that they can be kept on file in order and appear as authenticated as regulating the national government. Likewise it is Article 128 of the decree, when it has to be accepted as a recognized accounting procedure, in addition to the manual, those used to record transactions in mechanized or electronic form, using tabulating machines, registers, accounts, computers or the like.
However, no matter the system used in all cases, the economic entity should retain the means to view or play the accounting entries.
accounting system would be too incomplete, brief, if it were limited to single seats or books and records they contain, because they are legends necessarily short summary expressions which therefore can not give. a complete picture of business to which they refer, hence the Commercial Code provides that part of the accounts, vouchers and related correspondence with the business (art. 51 of C. Co.).
This correspondence must be retained by the merchant true copy, of which he issued, and original in which he received, noting the date of response or failure to respond.
The C. Co. provides a set of principles to which all must abide mandatory accounting system. All in accordance with the provisions of Decree 2649 of 1993. Let's see:
For the books can serve as a test requires that prior to his service processing, have been registered with the chamber trade for the place of your primary residence, or where does the business establishment of the economic entity's name and identified with the ensign of the establishment.
Under the decree, the ledgers do not have to register.
The accounts must be one, as opposed to the double counting mechanism used as tax evasion. Double counting, is that books are carried simultaneously in which several businesses have equal or recorded differently or different vouchers are delivered on the same business. The penalty for carrying double counting , is that it takes away any probative value to the books, only evidence against the trader who takes them. The tax penalty is the half percent of the higher of the net assets and net income last year but not exceeding a sum equivalent to 1,071 times the minimum wage prevailing at the date and subject to rejection costs, deductions, exemptions discounts, etc.
is necessary for maintaining accounting records without erasures, line spacing, no delete or correct the seats, leaving no blanks, no leaves start or vary their order. So if you make a mistake, it must necessarily be saved, through the development of another seat, to annul or remove the incorrect entry.
is important to take into account, as provided in paragraph of Article 128 of the decree, when the books meet the legal requirements, and has not incurred legal prohibitions, the books, including auxiliary has probative value. The Commercial Code Article 58 lays down additional sanctions to the loss of evidence in favor of the merchant to take them, as incurred violations noted previously, consisting of fines, penalties and tax penalties.
2.6 The accountant and auditor
The duty of all traders to keep accounts makes it relevant to study the issue of accountants and tax auditors.
are certified public accountants, in accordance with Article 12 of Act 43 of 1990, individuals are empowered to certify made public within their own profession, opinion on financial statements and perform other science-related activities accounting in general.
occasion of the functions performed, the CPA has a specific responsibility, in addition to the general enshrined in Article 43 of Act 222 of 1995, which is that in cases in which grant public trust in accounting are treated as public officials for purposes of criminal penalties for crimes committed in exercise of the activities of their profession, without prejudice to the liability that may be required (paragraph of Article 10 of Act 43 of 1990).
could say that the most important function of the public accountant for a trader is to certify their financial statements if it comes to counter "internal" and to determine whether there is a counter independent.
regard to the statutory audit which is an organ of control, we should clarify that only perform the duties of this position the people who hold the public accounting profession and its functions in terms of books accounting, are:
management constantly inspect the minute books, accounts, records and files in general, to ensure that the recordings made in the books are correct and meet the legal requirements and issue certifications and reports on financial statements, if the balance comes in faithfully the situation financial and profit and loss statement and results of operations, acuer.do with generally accepted accounting standards.
Not every trader, legal person, society, is bound to have a statutory auditor; only are stock companies, branches of foreign companies and those in which the administration is not applicable by law or by statute to all partners, or partners, private owners of the administration and at least 20% of capital, requesting the provision of office. This 20% is sufficient to require the establishment of office, but the appointment must be by the vote of a majority absolute, unless the statutes embody a higher quorum.
They should have a statutory auditor companies, of any nature, in any of the following two situations:
a. Have gross assets at 31 December of the preceding year, equal or exceed the equivalent of 5,000 statutory minimum wage.
b. Having received gross income for the preceding year, equal or exceed the equivalent of 3,000 statutory minimum wage.
For a person - or company - can be considered auditor must have been designated by the highest organ of society in accordance with the law and statutes, should have accepted the nomination and appointment must have been registered in the commercial register chamber of commerce. This was understood by the Superintendency of Companies in respect 220-58369, 1998.
As to the responsibility of the auditor can say that because of the importance of the position and importance of his duties, he assumed several responsibilities, as follows:
Disciplinary liability: it corresponds the Central Board of Accountants disciplinary authority where there violation of professional ethics by those exercising the office of auditor (Articles 35 to 40 of the ley43 de1990). Board may impose sanctions ranging from simple reprimand to cancellation of registration as a public accountant.
Liability: the auditor must answer for the damages caused to the company, its partners or third parties for negligence or willful misconduct in the performance of their duties (art. 211 C. Co.).
criminal liability: there are rules within the legal which define criminal behavior in which the auditor may incur in the exercise of their functions, such as Article 43 of law 222/95.
tax Responsibility: This person also must bear the consequences of their actions in tax, so for example, enshrined in Articles 659, 660, 654 and 665 of the Tax Code. The income statements should be signed, in some cases, by the auditor registered with the chamber of commerce, otherwise regarded as not fulfilled the legal obligation to testify.
misdemeanor or administrative responsibility: when the auditor does not exercise its functions or exercising in a negligent or improper or lack of the reserve is bound, ex officio or upon complaint of any person by the Superintendency of Companies or the Bank, against companies controlled by it may be penalized by fines, suspension in his tenure and even permanent ban to hold that office (Articles 216 and 217 C. Co.).
With regard to criminal responsibility enshrined in Article 43 of Act 222 of 1995, there have been several rulings by the Constitutional Court declared enforceable. The wording of this rule is as follows: "Criminal liability. Without prejudice to other rules will be punished with imprisonment of one to six years, those who knowingly "provide data to the authorities or certificates or certificates issued contrary to reality. (...) Order, tolerate, do or falsehoods disguised in the financial statements or their notes. "
In its first ruling (Case C-434, 1996, MP José Gregorio Hernández Galindo), the Constitutional Court declared enforceable the article in question because they disregarded the principle of unity of matter, but confined its constitutionality to the fact that the perpetrators of the offense would be exclusively managers, accountants and tax auditors.
2.8 Conservation of books and papers of merchant
accounting books and papers relating to it should be kept for twenty (20) years from closure or since becoming the last entry, document or voucher.
However, after ten (10) years, they can be destroyed by the trader, provided that reproduction has been secured by any appropriate technical means. The accuracy of reproduction of the copy should be checked before the Chamber of Commerce which were recorded books. To this end, the secretary must sign a written report stating the books and documents were destroyed and the procedure used for playback.
On this point the Council of State, in the opinion issued August 19, 1981 stated:
"Article 48 of the Code of Commerce reiterates the possibility for traders to use microfilming system so easy to save your file and correspondence. On the other hand, Article 60 of the Code obliges the trader to keep the accounting books and papers during the term not less than ten years (now twenty), and the expiry of that period allows you to proceed to its destruction provided by any appropriate technical means to ensure accurate reproduction. In other words, the merchant may seek, among other techniques, to microfilm, to ensure accurate reproduction of books and papers to be destroyed. Must then distinguish two separate issues: one is the use of microfilm system and quite another, is required to maintain for a period of time the trader's books and papers, which by the way, is to to provide greater security and stability to commercial transactions, issue fundamental trade market because the trader books {I give full faith and are testing among traders of their operations or prima facie evidence in its favor in a commercial issues facing non-trader. Then the conservation of books during the time required by the Code prevents the destruction of evidence that can be used in the future, but not prevent you from keeping microfilmed because the Code does not prohibit, as even microfilm system may be important for purposes of reconstruction of books and papers, to a possible loss of data.
"Now, all above is indicating that the books and records of the merchant can be microfilmed, but during the term to be retained are the only evidence on the operations and commercial movements stated in the / os.
"In these circumstances, the books and papers on microfilm, with the legal formalities have the evidentiary value of the original."
record 2.9 pounds of
are those in which it has a history of social decisions of civil society and business, the general assembly of shareholders when it comes to societies for actions and meetings of partners in the other.
There is an exception with respect to log book records that operates for sole proprietorships. These, although they apply the rules of commercial companies, especially limited liability companies, they apply only insofar as they are compatible (art. 80 Law 222/95). Recall that the sole proprietorship has only one partner, natural or legal person, and therefore can not speak of board members ... The Chamber of Commerce of Barranquilla said that "it is sufficient that the sole proprietor of a private document translated into decisions, and these documents were kept in a file correspondence, as required by Article 54 of the Code of Commerce. This implies that there is no need minutes book and, accordingly, to register.
The record is a summary of what happened at the meeting, in compliance with all legal and statutory requirements. It is very important as documentary evidence, it is sufficient proof of the facts of the board of directors or shareholders or board members. The proceedings are presumed to be valid, but can be challenged. In principle, these records have the attribute of the reserve, and therefore can only be reviewed initially by company officials in the exercise of their duties, public officials and the investigative processes established by law.
course, this book has some exceptions, generally referred to as partial display, covered in Articles 61 and 65 C. Co. and examine.
When these records are omitted legal or statutory requirements, people who have acted as president and secretary may sit additional minutes to meet them. However, when what is intended to clarify or to record decisions of the organs, the supplementary agreement must be approved by the body concerned or by persons appointed for that purpose.
As for the loss of the book of Acts, the Superintendency of Companies in Office SL-07757, April 6, 1987, took action by saying that
"On the minute book loss of loved ones of the complaints in question, which is sufficient proof of this fact, this Office believes that the book can be reconstructed, based on the copy of the records in the files of the company, as follows:
"If that is true copies meet the requirements of Articles 252 and 254 of the Code of Procedure Civil, can be transcribed in the new book without any requirement filled.
"If you are just photocopies, it is necessary to establish its authenticity, before transcription, eg. By testimony of persons involved in its preparation or actuaries original witnesses or which have subsequently met , with information from a judge or a notary who has known the original, completed after the relevant comparison, even if the document is not found in the notary notarized and on file with the court (Article 253 of the said Code).
"Finally, it should be noted that in accordance with Article 39 of the Commercial Code prior to the above, must be complied with the obligation to register in the Register his book to give certainty and safety and the seats are made there. "
proceedings book, which must be registered in the respective chamber of commerce, must be numbered and each record should be reflected in chronological order and place as it is concerned. If that error is seen, for example, the record No. 15 in the place of record No. 11, must proceed in accordance with technical accounting rules to make a notation at the bottom of the page if it is a simple error transcription, otherwise, you must proceed to cancel the pages, noting on them the date and cause of the cancellation, signed by the head of the entry and display of your name, that because the minute book allows authorities , partners and the monitoring body known the decisions taken by the highest social.
If the correction is not made, is deducted from the sanction of law, which means that books that are tainted by an irregularity sanctioned by law, no value as evidence in favor of the trader, well understood by the Superintendency of Companies in concept from 220 to 23574 March 2000.
2.10
shareholders Book
Previously, under the rules of the Commercial Code, it was considered that the obligation to keep shareholders only book was predicated on joint stock companies, to the extent that actions, to be registered, it is necessary for transfer and the establishment of any charge, the entry in the book of shareholders for this purpose by the corporation.
Decree 2649, regulating this regard, establishing a permissive system to be used mechanical and electronic in the register of holders. Thus, daily movements should be recorded in these ledgers, identifying each of them properly. The important thing here is that not only required as to companies in respect of all transactions and charges fees, but for all economic entities. This means that even if you have the quality of society, but is simply an unincorporated organized activity, must comply with the requirement to carry this type of book.
3. Rules common to the books required to be kept in proper form
All statutory requirements in this regard are aimed at ensuring the integrity and fidelity of the books. The books, as we alluded above, can be accepted for technical systems: bound books, with rings, continuous series of cards, computer systems etc. In any case should be a check on the continuity of the same.
have probative value only books written in the commercial register. Books are not registered, no value for the merchant, maintaining its value against it. The ledgers are not required to register by express legal authorization. Although also allowed entry in the chamber of commerce.
must be a complete correspondence between the seats and the receipts or documents to support them.
The reserve accounts of traders is a principle based on the constitutional guarantee enshrined in Article 15 of the Charter, under which all books and private papers enjoy the guarantee of the reservation, which means they can not be examined except by order of competent authority for three purposes:
a) Obtaining evidence in court.
b) Valuation of taxes.
c) Exercise of powers of intervention.
According to Article 61 of the Code of Commerce, trade books and papers are confidential, this means they can only be seen by their owners or persons authorized to do so, in other cases, it requires order competent authority for the purposes stated in the Constitution. All this is without prejudice to the right of inspection to have the members on the books and papers of the society, or those engaged in monitoring or auditing functions therein.
3.1 Exceptions for personal
could say that the first major exception to the rule book, is found in Article 61, with a distinctly private.
Thus, the case specifically of accounting in particular, the constitutional principle of the book, turns out to be an indispensable guarantee, that all accounting is carried in full and reliable, because if the books were exposed to inspection by any person, no one would dare to enter in them truth of their business, Article 61 in development of the constitutional guarantee provides that the records can not be examined except by the owner or by persons authorized by it, however, this right to confidentiality as any other right is limited and therefore suffers several exceptions, one for individuals and others in favor of the authorities, the former refer to the partners of the companies, which nevertheless not be the owners of the records, since they belong to society, have explicitly enshrined in law the so-called right of inspection and surveillance, at any time, books and documents of the company, except shareholders of corporations, which can only exercise this right within fifteen (15) days immediately preceding the general assembly meeting to consider the year-end balance (Articles 314, 369 and 379 of the Code Commerce).
rule, different societies from the anonymous, such as collective and limited partnership, are small companies with few partners, in which there is no objection to any of them, at any time examine social documents. Not so with corporations in which the presence of a large group of shareholders, is indispensable restrict the right time.
In this first group of exceptions to individuals, must necessarily include all officials of the company by reason of his having to do with accounting, as with the accountant, the auditor, the auditor and assistants in order to the merchant. But they are under obligation to keep secret what they know on pain of disciplinary and even criminal penalties (art. 62 C. Co.).
3.2 Exceptions for public authorities
reserve in the books and other accounting documents, we have a second set of exceptions and not on behalf of individuals, but officials of the executive and judicial. These are allowed to inspect the accounts in three cases, cases in which may require its own motion or direction of display (Article 38 of the Constitution and 63 of the Code of Commerce).
The first case concerns the tax assessment, which means that legally authorized officials, either at the national, departmental and municipal that are responsible for control and collection of taxes, may require any time display of books accounting records and other documents merchants taxpayers, in order to verify that tax returns are restricted exactly to the economic reality of business.
competent officials of the executive branch, you can inspect all the accounts of traders for the due performance of interventionist purposes, at this point should be borne in mind that the Commercial Code has not faithfully developed constitutional principles, because the article of the Constitution speaks of government intervention and Article 63 of the Commercial Code speaks of monitoring facilities credit, corporations, institutions of public utility.
The reserve accounts could only be raised for the simple exercise of oversight functions as those carrying the Banking, Corporate, Securities, Health, etc.
At this point the Commercial Code can not be taken literally, because in many cases the State not only monitors but also involved in the economic activity of individuals and the powers of inspection of accounts with the state not only in the case of simple oversight but in the intervention because although the Commercial Code does not say so wrong, it says so expressly in the Constitution. Consider some cases:
officials of the Ministry of Labour, not just watch but intervene to enforce labor laws and the exercise of these powers, they can get the full display of the books of accounts employers.
officials of the Central Bank and the Superintendency of Banks and Companies, not only monitored, but intervene to enforce the laws governing the possession and circulation currency within the country and can inspect the accounts of traders.
officials of the Superintendency of Industry and Commerce, involved in private economic activities and to enforce pricing rules or antitrust provisions to this end, may inspect the accounts.
When the government plans to nationalize a company in the financial sector, as can, based on existing legislation, can also undertake a more comprehensive inspection of all accounting ledgers.
In civil proceedings of compulsory liquidation, settlement of estates, communities and societies, according to the rules of civil procedure. In these cases should generally display either automatically or on request (art. 64)
display cases in general, be restricted only from those listed, and find that come the following: universal processes which settles the estate of a dealer, as in cases of succession processes of a trader, dissolution of the marital partnership when one or both spouses are traders, processes or sales dividing community property in compulsory liquidation.
There are however other cases where the display is only partial (ie, limited to books and papers relating to the dispute) and not from trade but at the request of the party (art. 65 C Co. .) In these cases, the exhibit requested during the processing or advance to pre-test form, but in any case proving the quality of trader who must display the books. The 2649 decree states requirements or elements, such as: what is intended to test the approximate time of the operation and the books that according to the technical accounting transactions recorded are to appear (Art. 133). In these cases, (not in general display cases) should be made in the presence of the merchant or his representative and in your office or business establishment (art. 66), in accordance with Articles 127 and 133 of Decree 2649 , to be exhibited at these sites located in the economic entity's primary residence.
On the other hand, clause 29 of Article 133 of the decree has commented that when the review is checked only to establish the assets and liabilities arising from the activities of the establishment, the display should be in place the same work.
If the dealer has no books or papers whose display is ordered according to the rules above, Article 67 will set a sanction that are tested against the facts that attracts part intended to demonstrate they are capable to prove by confession, provided that the law does not require further proof, for then the presumption must be supplemented. In the same sense we find in Article 133 of Decree 2649, which, however, provides an exception to the consideration of this penalty, which it is proved justified mind the loss, destruction or involuntary disappearance.
If
practiced upon inspection, the books are not in the place where according to law must be carried out, can be demonstrated good cause within three (3) days of the date set for the exhibition, presenting books the chance that a judge or competent officer will bring.
However, it is important to note that the person requesting the display of books and papers of a merchant, means you are putting a judge yours.
4. PROBATION EFFECTIVENESS OF BOOKS AND PAPERS OF COMMERCE
The specialty retailer has required work of laying down specific rules for documentary evidence, set forth in the procedural law.
The probative value of the books and papers of the dealer is not always the same, in some cases is conclusive evidence, in others it is just a prima facie case and in others it is a proof against the company that leads.
Being a civilian, you can not judge entirely on the basis of a commercially available, hence in this situation, the evidence in favor of the trader, created by its own accounting, is an imperfect test , only a prima facie case for their rights, which needs to be supplemented with other evidence (Article 69 of C. Co.).
Here are the different scenarios that may arise:
4.1 concerns of merchants, the general rule is that they are fully tested in business dealings between traders, whether judicial or extra-judicial proceedings (art. 68)
This principle is not so simple, it is easy to apply, does not have full effect, because different situations may arise, it may be that the books of both parties agree instead or disagree, or that one has accounting and the other not, etc.. (Articles 70 and 71 of the Commercial Code).
Here are the different scenarios:
Both traders carry books in due form and they agree completely, be assessed according to the seats. For example, in the books of the applicant appears to owe $ 100,000.00 and in the books of the defendant know that he owes $ 100,000.00, the dispute is resolved based on the accounts and matching for the defendant, it being established credit $ 100.000.00
If both books conform to the law, but the seats do not match will be decided taking into account that the books and papers to which we refer, proof of admission. For example, it may be that the books of the two litigants, despite being well run, do not match. In the applicant appears to owe $ 100,000 and the defendant's stated to be $ 50,000, how should the court resolve this?
The Commercial Code provides that in this case, the judge will decide, bearing in mind that the books are written extrajudicial confession, so as always prove unfavorable to the owner; therefore, in this example, the defendant has confessed in his books that at least owe $ 50,000 and up to this amount there is overlap between the books of both parties, therefore, the court must accept as proven the debt to $ 50,000, without prejudice to and apart from books and by providing other evidence, the plaintiff succeeds in establishing the existence of credit by another $ 50,000.
accounting can not try everything, there are certain acts that can not be established by accounting records, as in the case of real property, bearing in mind that this test is only the deed, with the notation have registered or the certificate of freedom at 20 years, likewise, no one partner in a company predicated basis for it in one accounting, because all commercial company set up regularly, you should do so in deed and only through such a tool can prove, In these cases, the quality of constituent partner.
If a party fails to comply with the law, be assessed according to the counterparty to take them properly, if it alleges no conclusive evidence as to destroy or distort the content of such books. For example: can a party bring their books in due form and the other party accounting but also take them inappropriately, not recorded books, do not match the seats.
What does the judge? Must fail under the trader's books that has gotten along well, unless the wearer badly distort achieve what is clear from the seats of its counterpart. This part can accept that theirs not · serves, but also can demonstrate that its counterpart but is flawless from the viewpoint of formal, material not telling the truth.
If the books of both parties do not meet legal requirements, is totally disregarded them taking only into account other evidence in the process. For example: it is possible that the books of both parties are misled, in which case the judge should ignore them completely and fail the dispute, based on other evidence in the process, the 4th paragraph, Article 70 Commercial Code.
This clause must know how to interpret, to coordinate with the provisions of the Code. The judge must reject the books of both parties but only in what they are favorable with respect to the dealer, because a ledger that does not meet legal requirements, you can not test for its owner, but it is not true as implied by paragraph four, the court must totally reject books because it is an obligation to appreciate them as unfavorable compared to the dealer that performed, because these books have the probative value of a written judicial confession.
If one party takes legal books and the other has no accounting or not the shows will be assessed according to the former, without regard to fault. For example, one party has and presents his books to the process and the other party has no accounts or no books or hidden. In which case, the sanction provided by the Commercial Code is severe because Article 70 directs the judge to rule the process according to the books of the leading accounting properly.
This solution is exaggerated, too formal, because it is assumed that the process must be sought the real truth and it does not have to match what the books say the party that has presented.
The Commercial Code is no problem, because for him there are two provisions simultaneously with two different solutions: the 5th paragraph of Article 70 and Article 67.
What is the solution?
must fail according to the books of the other party who has submitted (Article 70, paragraph 5 º), or must go to confession ficta (Article 67), ie it must be presumed to be true the facts of the party requesting display.
Perhaps the way to reconcile this contradiction would be: the 5th paragraph of Article 70 should apply to disputes between merchants, so that if one does not carry books, the other's fault, this solution does not apply to disputes between a merchant and a non-trader, in which the vendor does not take books, because the court could not fail to books of the counterparty, as it not being a merchant, does not.
In this situation, and based on Article 67 of C. Co., the court must take as proven the facts that purported to show the non-merchant with his request for production of books dealer, the same solution provided by Article 285 of the Code of Civil Procedure applicable to non-traders in the form suppletive .
A situation may arise under Article 77 and is one of the traders told the judge that voluntarily submits to the books of his counterpart, he accepts that the dispute it failed on the basis of the records of its container, if it presents no problem, according to her the judge issues his ruling, if not present, not willing or not, you will fail based on the books on the other side, but the first can prove otherwise.
If the present but it is imperfect, it fails based on the books of another merchant, but his opponent may prove against them. (Articles 71 to 73 of C. Co.).
In disputes between a merchant and a non-trader, but against a commercial matter, the efficacy of the trading books is restricted, is proof but not full, either in favor or against the dealer, in this case should be complemented.
in civil disputes between merchants, books and papers may only have value against its owner if the counterparty does not reject them as unfavorable. Probative value is reduced. The books and papers have no value then a special assessment test, they only have a value of documentary evidence in accordance with the rules that brings the Code of Civil Procedure.
5. The indivisibility
When books and papers are taken as evidence, taken in their integrity, which means that faith due to the books is indivisible. This leads then to consider accepting the books in favor of the counterparty, should also be subjected to the worst, always being carried in an appropriate manner and not check fraud (art. 72).
The principle of indivisibility demands respect only when the books are kept in proper form, because if for example in relation to the accounts it is imperfect, that accounting evidence against its owner, if so, the counterparty if you could tell the judge that appreciates his opponent's books that are imperfect, as it will harm him, but do not take into account what the benefit (art. 72)
The evidence of the accounting system is mechanical and legal fees, which does not give the judge leeway, is a system exegetical legal rate of the test, whereby it indicates the judge carefully what to do in each of the scenarios to be presented, in this orientation the Commercial Code is a complete departure from the general conception of proof, that , the Court must assess the evidence fairly, with some freedom (Article 187 of the Code of Civil Procedure).
Even
when is it the most modern conception enshrined in Article 187 of the Code of Civil Procedure, the rules of the Commercial Code on the probative value of the accounts preference applied by reason of the provisions of paragraph 22 of Article 822 of C. Co., under which the test in commercial law is governed by the rules of the CPC, except those provided by commercial law. It is the only case in which there are in C. Co. evidentiary regulations on accounting books, regulations, therefore, move on this point any other provision of the CPC, to be special.
Article 271 CPC also refers to the probative value of trade books, but they should not consider these provisions, as well as errors that means replacing rogue trading rules. The error of principle is that the article, "trade books make faith between traders processes, provided they are kept in proper form" and not in all processes of traders make books for their faith , only processes whose subject matter is commercial. In civil matters, even among traders, these books only tested against their respective owners as discussed above, according to Article 68 of dog C. Co. Even if a trader is present and a non-trader these books of account also tested for the dealer, just not full, because only as a principle of documentary evidence to be supplemented by other evidence.
As to paragraph 2 of this same provision provides that if the processes between retailers, the books are not taken in legal form, it will be the counterparty, unless proven otherwise, provided that they taken appear in legal form. In this case it is correct, the provision as it coincides with the solution for the same course brings commercial law in Article 70 However, the Code of Procedure Civil wrong again when you add in all other cases, if the books are in disagreement, the judge will decide on the merits of the other tests. The fact that the books of the parties disagree does not authorize the judge to dispose of evidence, because they are written confessions and therefore should be evaluated by the judge, in containing the adverse to the owner.
The final section provides that the merchant does not admit evidence tending to destroy the books that fails. This is a restrictive application that is not in the Commercial Code. It is possible that a merchant, is inextricably linked what their books say when the task of settling these books is often mistakes are made, which can be shown to undermine what appears incorrectly seated.
CP. C. because it contradicts Article 201 provides that any confession rebutted and whether the books as unfavorable to their owners are confessions, should also proof to the contrary, even a confession.
If the trader whose books and papers defiera the decision has no books, has concealed or improperly, it is decided according to the rules established in the Code of Procedure Civil.
6. Double-counting penalty
There
double counting, as explained earlier, when a trader takes two or more identical books in which he records the transactions differently or have different accounting vouchers on the same acts.
If the trader takes double counting or engages in any fraud, books and papers are of value only against them, plus penalties and criminal tax case (art. 74), as described above.
7. Loss and Renewal
books
is an obligation of the economic entity's claim for loss or destruction of his books and papers, a fact which must establish in the event of the exhibition of the books along with the proof that they were registered, if applicable.
The reconstruction of the records in these cases must be made within six (6) months following its loss, destruction or loss, based on accounting vouchers, tax returns, certified financial statements , third party reports and other relevant documents are available to the merchant. If it is not possible to obtain documents for the reconstruction of accounting, the economic entity should develop a comprehensive inventory, cut at the time of occurrence of the events that led to the loss of the books, preparing financial statements.
As for the papers to be destroyed, lost or misplaced, can be replaced by the copy of the same holding third, leaving note of that fact and stating the reasons for which are replenished.
loss and reconstruction of the books also affects the retailer's tax, because Article 781 of the Tax Code states that the merchant does not submit its books and financial records as required by management may not be invoked later as evidence in his favor and this fact will be taken as evidence against him, unless the trader demonstrates that you can not submit by force majeure, which requires evidence that the loss or destruction was due to negligence or failure to adopt the necessary measures for conservation and safety.
7.
electronic
Currently, the law 527 of 1999 or e-commerce in Article 12, which governs the conservation of data messages and documents, provides in its final paragraph: "The books and records of the merchant may be preserved in any technical means to ensure accurate reproduction." That is why today, making peak use of electronic media such as optical disk, for the conservation of books and papers of the merchant.
The advantages of electronic media, specifically the optical disc on traditional mechanisms such as microfilm, is that the former is safer in terms of conservation of information is treated as due to a digital format rather than a roll of film, also once charged in the information and "burn" the optical disk it can not be altered by anyone. Finally, the preservation of records and papers of merchant optical disc allows multiple people to simultaneously consult information from different workstations.
Despite the clear advantages that the use of electronic media provides for the function of preserving information, not fail to raise doubts about the issues to be discussed in the following paragraphs.
7. Procedure destroying accounting documents will be stored on optical disks
Although the law 527 of 1999 allowed the traders to use electronic means for the preservation of their stationery and did not establish the procedure for the destruction of documents be stored once in the medium used.
Nevertheless, using the analogy, we assert that the procedure is the same as that used with the microfilm, then this is the only way is regulated by Decree 2527 of 1950, which is that once stored the information, must certify, under oath, that the material that was stored was destroyed, expressing the form and date it was signed by the fact that you and two witnesses ..
This approach was endorsed by the Tax and Customs - DIAN - who spoke out saying that when the documentation will be destroyed requires the presence of an officer of the chamber of commerce at the time of reproduction . Moreover, given that the only technical means is regulated microfilming, whether to use other technical means should be made to the similarity in the application of the procedure for destruction and preservation by microfilming.
7.1 Time to be kept accounting records when using an electronic
Comments can do after the issuance of Law 527, regarding the term conservation of books merchant accounting, are, in principle, respecting the period of twenty (20) years provided for the conservation of books, but do not respect the term of ten (10) years, laid down in Article 60 of C. Co., for the physical preservation of the same, for as stated in Article 12 of the ley en comento: "Los libros y papeles del comerciante podrán ser conservados en cualquier medio técnico que garantice su reproducción exacta".
La DIAN, aval ando el concepto anterior y en pronunciamiento reciente, dijo que "El artículo 632 del Estatuto Tributario establece que para efectos de control de los impuestos administrados por la Dirección General de Impuestos Nacionales, las personas o entidades, contribuyentes o no contribuyentes de los mismos, deberán conservar por un período mínimo de cinco (5) años, contados a partir del 1 de enero del año siguiente al de su elaboración, expedición o recibo, los siguientes documentos, informaciones and evidence (...)
"This tax provision that keeps correspondence with orders about commercial law and accounting, notwithstanding the above, Law 527 of 18 August 1999 regulates electronic commerce provides in the final paragraph of Article 12 that the books and records of the merchant can be preserved in any technical means to ensure accurate reproduction.
"In this sense has spoken through the Legal Office of the Concept 051929 May 31, 2000, it reflects that the Act 527 of 1999 amended the tax law in the sense of accepting accounting information (books, documents, internal and external receipts, etc.) can be stored or carried in media other than paper, provided to ensure accurate reproduction.
. 7 3 Record Book electronic accounting
Today, most entrepreneurs or traders do not keep their accounts in print, but electronic media through the use of software and accounting packages.
Therefore, and 'in accordance with the rules of the Commercial Code, we dare to question the validity of these electronic means used by traders, taking into account that they must keep their accounting books properly registered in addition, we wonder if the chambers of commerce are required to register e-books accounting.
Assuming that the purpose of registration of accounting books, which carry out the chambers of commerce, authentication is formal or rather, certification of veracity of what they contain, we say that the chambers of commerce if they should make a record of e-books, provided they use the digital signature. This does not mean that the chamber of commerce will give each merchant digital signature but the camera, or rather the secretary of it, that's who, in accordance with Article 39 of C. Co., must sign the log books of accounts, you should use a digital signature that lets you know who and what e-books accounts have been registered.
The use of digital signatures is security, especially since the electronic ledgers lead from the start as a data message and can be considered open books.
digital signature, in accordance with law 527 of 1999, has the same effect as written signatures, provided it meets the following requirements:
a. Is only the person using it. This implies that the system used to provide digital signature should be allowed to assign to each person who requests a different signature.
b. Be capable of verification. This entails that there is a mechanism to verify who is the holder of the digital signature.
c. Is under the sole control of its owner, who is the wearer.
d. Is linked to information found in the data message (in this case book electronic accounting), so if this information is changed the signature is invalidated.
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