Law of Chile
Encyclopedia
The legal system of Chile
belongs to the Continental Law
tradition.
The basis for its public law
is the 1980 Constitution
, reformed in 1989 and 2005. According to it Chile is a democratic republic. There is a clear separation of functions, between the President of the Republic, the Congress, the judiciary and a Constitutional Court. See Politics of Chile
.
On the other hand, private relationships are governed by the Chilean Civil Code
, most of which has not been amended in 150 years. There are also several laws outside of the Code that deal with most of the business law.
, and made effective on March 11, 1981, has been amended in 1989, 1991, 1994, 1997, 1999, 2000, 2001, 2003 and 2005.
In 2005 over 50 reforms were approved, which eliminated some of the remaining undemocratic areas of the text, such as the existence of non-elected Senators (appointed senators, or senators for life) and the inability of the President to remove the Commander in Chief of the Armed Forces. These reforms led the President to controversially declare Chile's transition to democracy as complete.
There is a constitutional court (Tribunal Constitucional) with the competence to declare a singular law "not applicable" to a individual case (inaplicabilidad por inconstitucionalidad) and, having declared that at least once, the unconstitutionality of that law in general.
must fulfill the administrative function, in collaboration with several Ministries or other authorities with ministerial rank. Each Ministry has one or more sub secretaries. The actual satisfaction of public needs is performed through public services
, dependant or at least related to one of those sub secretaries.
All Ministries and public services have a body of workers or administrative personnel (funcionarios públicos).
Public property
is subject to privileges and burdens, because it serves public purposes. The sea, rivers and lakes, mines and natural reservations belong to the state and may be used by "anyone", but when individual exploitation is possible they it is in the hands of privates. On the other hand, buildings, cars and other supplies that are necessary for the work of public agencies are also property of the state.
Public entities act through administrative procedures, that is, processes with formal stages where opportunities to deliver evidence and exercise appeals are granted to the citizens. The recent basic law of administrative procedures deals with most of the general matters pertaining the administrative procedures of all public entities.
There is not a singular Administrative court
to deal with actions against the administrative entities, but several specialized courts and procedures of review. However, civil courts have jurisdiction over all matter that are not in the scope of other tribunal, such as public liability
and the overturn of single administrative acts.
of the economy, subordinated to legislation
.
The exploitation of mines
and water
resources is given in concession to private entrepreneurs.
All activities that can have a significant impact on the environment
must obtain an administrative authorization
and are subject to heavy regulation by several different agencies.
There are agencies
(Superintendencias) dealing with Electricity and Fuels, Water Supply and Treatment, Banking and Finance, Stock Exchange, Bankruptcy, Pensions and Retirement Funds, Health, Social Security, etc.
. After several years of individual work (though officially presented as the work of multiple Congress commissions), Congress passed the Civil Code into law on 14 December 1855, and came into force on 1 January 1857. The Code has kept in force since then though it has been the object of numerous alterations.
The main modernisations the code has undergone have affected family law
and the law of succession
s. On one hand, these reforms have introduced more equal relations between men and women and, on the other, they have eliminated discriminations between children born from married couples
and those born extramaritally.
Being part of the civil law
tradition, there is no obedience to precedent
in Chilean law. Nevertheless, sentences
of a higher court can be appeal
ed to the Supreme Court
based in the erroneous application of the law, thus being able to deliver uniform decisions in controversial matters of law. See Judiciary of Chile
.
For instance, both the Civil Code and the Commerce Code deal with the basic matters of enterprises, but Corporations and limited liability
enterprises have a statute of its own.
Recently the law of bankruptcy
has been incorporated in the Commerce Code, in a process of re-codification.
Matters such as banking and the stock exchange
are strongly regulated by government agencies and therefore are subject to public scrutiny. Recently, these agencies have fined important executives for insider trading
http://www.elclarin.cl/index.php?option=com_content&task=view&id=10143&Itemid=47.
is experimenting one of the most important legal reforms of the country's history, completely replacing an inquisitory procedure by an accusatory system, very similar to the one in Germany
or the United States
. While the prosecution is in charge of an autonomous authority (Ministerio Público), the actual judgement is made by a collegiate court (Tribunal de Juicio Oral en lo Penal). Trials
are public and verbal. However, the law grants several alternatives to the defendant
so as to avoid the trial, but, at the same time, grant the victim's satisfaction and the public safety.
The Chilean Criminal Code
, which defines the conducts that constitute an offense and the applicable conviction, dates back to 1874. It was greatly inspired by the Spanish Code of 1848 and the Belgian Code of 1867. The Code has been very criticized, and the Ministry of Justice is studying a complete replacement by the year 2010 http://www.politicacriminal.cl/n_01/pdf_01/d_1.pdf.
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
belongs to the Continental Law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
tradition.
The basis for its public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
is the 1980 Constitution
Constitution of Chile
In its temporary dispositions, the document ordered the transition from the former military government, with Augusto Pinochet as President of the Republic, and the Legislative Power of the Military Junta , to a civil one, with a time frame of eight...
, reformed in 1989 and 2005. According to it Chile is a democratic republic. There is a clear separation of functions, between the President of the Republic, the Congress, the judiciary and a Constitutional Court. See Politics of Chile
Politics of Chile
The politics of Chile takes place in a framework of a presidential representative democratic republic, whereby the President of Chile is both head of state and head of government, and of a formal multi-party system that in practice behaves like a two-party one, due to binominalism. Executive power...
.
On the other hand, private relationships are governed by the Chilean Civil Code
Civil Code (Chile)
The Civil Code of the Republic of Chile is the work of Venezuelan jurist and legislator Andrés Bello...
, most of which has not been amended in 150 years. There are also several laws outside of the Code that deal with most of the business law.
Constitution
The current Political Constitution of the Republic of Chile, approved by Chilean voters in a tightly controlled plebiscite on September 11, 1980 under Augusto PinochetAugusto Pinochet
Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...
, and made effective on March 11, 1981, has been amended in 1989, 1991, 1994, 1997, 1999, 2000, 2001, 2003 and 2005.
In 2005 over 50 reforms were approved, which eliminated some of the remaining undemocratic areas of the text, such as the existence of non-elected Senators (appointed senators, or senators for life) and the inability of the President to remove the Commander in Chief of the Armed Forces. These reforms led the President to controversially declare Chile's transition to democracy as complete.
There is a constitutional court (Tribunal Constitucional) with the competence to declare a singular law "not applicable" to a individual case (inaplicabilidad por inconstitucionalidad) and, having declared that at least once, the unconstitutionality of that law in general.
Administrative law
The President of the RepublicPresident of Chile
The President of the Republic of Chile is both the head of state and the head of government of the Republic of Chile. The President is responsible of the government and state administration...
must fulfill the administrative function, in collaboration with several Ministries or other authorities with ministerial rank. Each Ministry has one or more sub secretaries. The actual satisfaction of public needs is performed through public services
Public services
Public services is a term usually used to mean services provided by government to its citizens, either directly or by financing private provision of services. The term is associated with a social consensus that certain services should be available to all, regardless of income...
, dependant or at least related to one of those sub secretaries.
All Ministries and public services have a body of workers or administrative personnel (funcionarios públicos).
Public property
Public property
Public property is property, which is dedicated to the use of the public. It is a subset of state property. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership...
is subject to privileges and burdens, because it serves public purposes. The sea, rivers and lakes, mines and natural reservations belong to the state and may be used by "anyone", but when individual exploitation is possible they it is in the hands of privates. On the other hand, buildings, cars and other supplies that are necessary for the work of public agencies are also property of the state.
Public entities act through administrative procedures, that is, processes with formal stages where opportunities to deliver evidence and exercise appeals are granted to the citizens. The recent basic law of administrative procedures deals with most of the general matters pertaining the administrative procedures of all public entities.
There is not a singular Administrative court
Administrative court
Greece, as a civil law country has administrative courts. The establishment of those courts can be found in article 94 of the Constitution of the Hellenic Republic 1975, as revised in 2001. The administrative courts are composed from districts Courts of First Instance, district Courts of Appeal and...
to deal with actions against the administrative entities, but several specialized courts and procedures of review. However, civil courts have jurisdiction over all matter that are not in the scope of other tribunal, such as public liability
Public liability
Public liability is part of the law of tort which focuses on civil wrongs. An applicant usually sues the respondent under common law based on negligence and/or damages...
and the overturn of single administrative acts.
Regulation
Since the privatization of most economic activities in the 1980s, the President and the independent agencies became the main policy makers regarding the regulationRegulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
of the economy, subordinated to legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
.
The exploitation of mines
Mining
Mining is the extraction of valuable minerals or other geological materials from the earth, from an ore body, vein or seam. The term also includes the removal of soil. Materials recovered by mining include base metals, precious metals, iron, uranium, coal, diamonds, limestone, oil shale, rock...
and water
Water
Water is a chemical substance with the chemical formula H2O. A water molecule contains one oxygen and two hydrogen atoms connected by covalent bonds. Water is a liquid at ambient conditions, but it often co-exists on Earth with its solid state, ice, and gaseous state . Water also exists in a...
resources is given in concession to private entrepreneurs.
All activities that can have a significant impact on the environment
Environment (biophysical)
The biophysical environment is the combined modeling of the physical environment and the biological life forms within the environment, and includes all variables, parameters as well as conditions and modes inside the Earth's biosphere. The biophysical environment can be divided into two categories:...
must obtain an administrative authorization
Authorization
Authorization is the function of specifying access rights to resources, which is related to information security and computer security in general and to access control in particular. More formally, "to authorize" is to define access policy...
and are subject to heavy regulation by several different agencies.
There are agencies
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...
(Superintendencias) dealing with Electricity and Fuels, Water Supply and Treatment, Banking and Finance, Stock Exchange, Bankruptcy, Pensions and Retirement Funds, Health, Social Security, etc.
Civil Code
The Civil Code of the Republic of Chile is the work of the Chilean-Venezuelan jurist and legislator Andrés BelloAndrés Bello
Andrés de Jesús María y José Bello López was a Venezuelan humanist, poet, lawmaker, philosopher, educator and philologist, whose political and literary works constitute an important part of Spanish American culture...
. After several years of individual work (though officially presented as the work of multiple Congress commissions), Congress passed the Civil Code into law on 14 December 1855, and came into force on 1 January 1857. The Code has kept in force since then though it has been the object of numerous alterations.
The main modernisations the code has undergone have affected family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
and the law of succession
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
s. On one hand, these reforms have introduced more equal relations between men and women and, on the other, they have eliminated discriminations between children born from married couples
Legitimacy (law)
At common law, legitimacy is the status of a child who is born to parents who are legally married to one another; and of a child who is born shortly after the parents' divorce. In canon and in civil law, the offspring of putative marriages have been considered legitimate children...
and those born extramaritally.
Being part of the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
tradition, there is no obedience to precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
in Chilean law. Nevertheless, sentences
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
of a higher court can be appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
ed to the Supreme Court
Supreme Court of Chile
The Supreme Court of Chile is the highest court in Chile. It also administrates the lower courts in the nation. It is located in the capital Santiago....
based in the erroneous application of the law, thus being able to deliver uniform decisions in controversial matters of law. See Judiciary of Chile
Judiciary of Chile
The judiciary of the Republic of Chile includes one Supreme Court, one Constitutional Court, 16 Courts of Appeal, 84 Oral Criminal Tribunals and Guarantee Judges; 7 Military Tribunals; over 300 Local Police Courts; and many other specialized Tribunals and courts in matter of family, labor, customs,...
.
Commerce
Though the Commerce Code of 1868 was the main source of business law, nowadays the legislation is widely spread in many legislative bodies.For instance, both the Civil Code and the Commerce Code deal with the basic matters of enterprises, but Corporations and limited liability
Limited liability
Limited liability is a concept where by a person's financial liability is limited to a fixed sum, most commonly the value of a person's investment in a company or partnership with limited liability. If a company with limited liability is sued, then the plaintiffs are suing the company, not its...
enterprises have a statute of its own.
Recently the law of bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
has been incorporated in the Commerce Code, in a process of re-codification.
Matters such as banking and the stock exchange
Stock exchange
A stock exchange is an entity that provides services for stock brokers and traders to trade stocks, bonds, and other securities. Stock exchanges also provide facilities for issue and redemption of securities and other financial instruments, and capital events including the payment of income and...
are strongly regulated by government agencies and therefore are subject to public scrutiny. Recently, these agencies have fined important executives for insider trading
Insider trading
Insider trading is the trading of a corporation's stock or other securities by individuals with potential access to non-public information about the company...
http://www.elclarin.cl/index.php?option=com_content&task=view&id=10143&Itemid=47.
Criminal Law
Since the year 2000, Chilean criminal procedureCriminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
is experimenting one of the most important legal reforms of the country's history, completely replacing an inquisitory procedure by an accusatory system, very similar to the one in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
or the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. While the prosecution is in charge of an autonomous authority (Ministerio Público), the actual judgement is made by a collegiate court (Tribunal de Juicio Oral en lo Penal). Trials
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
are public and verbal. However, the law grants several alternatives to the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
so as to avoid the trial, but, at the same time, grant the victim's satisfaction and the public safety.
The Chilean Criminal Code
Criminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
, which defines the conducts that constitute an offense and the applicable conviction, dates back to 1874. It was greatly inspired by the Spanish Code of 1848 and the Belgian Code of 1867. The Code has been very criticized, and the Ministry of Justice is studying a complete replacement by the year 2010 http://www.politicacriminal.cl/n_01/pdf_01/d_1.pdf.
See also
- History of ChileHistory of ChileThe territory of Chile has been populated since at least 2,000 BC. By the 16th century, Spanish conquistadors began to subdue and colonize the region of present-day Chile, and the territory became a colony from 1540 to 1818, when it gained independence from Spain...
- Economy of ChileEconomy of ChileThe economy of Chile is ranked as an upper-middle income economy by the World Bank, and is one of South America's most stable and prosperous nations, leading Latin American nations in human development, competitiveness, income per capita, globalization, economic freedom, and low perception of...
- South America Life Quality Rankings - Law and Justice