Commercial law is the branch of business, corporate and private law that regulates and studies the commercial activity that is the activity of merchants, and consequently it is not limited to being a set of norms but goes further, which is necessary keep in mind in order to have broader and more reliable approaches to this important branch of law in law and in the economy.
1. Definition
It is necessary to study the original text of the Peruvian Commercial Code of 1902, since it allows having a global approach to the subject matter of study, for which we must point out that it regulated the following topics: Mercantile Societies (but did not regulate civil societies), Securities, Bankruptcies, Stock Market, Commercial Contracts, Commercial Guarantees, Insurance and Banking, mainly. In other words, it not only regulated these issues, but also regulated others. Later, other standards were approved that repealed many of said code, producing a decoding process. Decoding is the process by which some matters regulated by a Code become regulated by other standards, for example by special laws. This knowledge is very little known by lawyers,therefore, it is advisable to review them in order to have approaches and acquire knowledge with the latest news and new trends.
Many authors refer to commercial law as commercial law, which is incorrect, so it is necessary to record that we must prefer the first name in order to have more reliable knowledge and in accordance with prevailing doctrine.
Consequently, it is clear that commercial law is made up of many standards.
Commercial law is the branch of business, corporate and private law that regulates and studies the commercial activity that is the activity of merchants, and consequently it is not limited to being a set of norms but goes further, which is necessary keep in mind in order to have broader and more reliable approaches to this important branch of law in law and in the economy.
There are many definitions of commercial law, however, we do not want to stop to study them, because the notion exists in the present lines and this causes redundancies to be avoided.
2. Denomination
That is, commercial law is also called commercial law, but in our environment the name of commercial law is more widespread, so we will call it that way below.
3. Autonomy of commercial law
Commercial law is autonomous because it has its own rules, among which we can cite the 1902 Commercial Code, the General Companies Law contained in Law 26887, the Securities Law contained in Law 27287, the bank law contained in law 26702, the stock market law, the general law of the bankruptcy system, the law of the individual company with limited liability, among others, and also enjoys autonomy because there are chairs dedicated to the study of commercial law.
The autonomy of this branch of law is well known, for which it is necessary to put on record that we do not need to delve into this topic in order not to waste efforts on a topic that is well known in the world of law.
4. Division of commercial law
Commercial law is of vital importance because its rules regulate a large part of commercial activity, that is, commercial law covers areas of law of great importance, such as the following: company law, exchange law or postal law, stock exchange law, banking law, bankruptcy law, telecommunications, maritime, industrial, international trade law, and other areas of private law.
In this sense, the norms of commercial law were grouped in the original text () of the Peruvian Commercial Code () of 1902, from which many norms have been detached and have become part of other branches of law as detailed in continuation().
The norms that regulate securities have become part of the exchange law. In the exchange law the evolution of the legislation from the 1902 Commercial Code has been as follows: first some securities were regulated in the Commercial Code, then these norms become part of Law 16587, which is later abrogated by the current Securities Law, contained in Law 27287, in which all existing securities are grouped under Peruvian positive law.
The rules that regulate companies have become part of company law. In corporate law, the evolution of legislation from the 1902 Commercial Code () has been as follows: first, commercial companies were regulated in the Commercial Code, and Civil Societies in the Peruvian Civil Code of 1936, then the norms that regulate mercantile companies become part of the Law of Mercantile Companies and later said Law is modified, for which reason said legislation is unified in the TUO of the General Companies Law approved by DS 03-85-JUS and subsequently is repealed by the General Companies Law, contained in Law 26887, which is in force.
The rules that regulate the suspension of payments and bankruptcies have become part of bankruptcy law. In bankruptcy law, the evolution of the legislation from the 1902 Peruvian Commercial Code has been as follows: first, the suspension of payments and bankruptcies were regulated in the Commercial Code, then the norms that regulated said matter become part of of the Bankruptcy Law, contained in Law 7566, later said matter became regulated in the Business Restructuring Law, contained in Decree Law 26116, then the Patrimonial Restructuring Law contained in Legislative Decree 845, and finally the Law General of the Bankruptcy System, contained in Law 27809 published on 08-08-2002, which is in force.
The rules that regulate the Stock Exchanges have become part of the stock market law. In stock market law, the evolution of the legislation from the Peruvian Commercial Code of 1902 has been as follows: first, this matter was regulated in the Commercial Code, then this matter became regulated by Law 18353 of 04-08- 70 that the Regulations and Extensive Powers of the National Securities Commission were later approved by the Stock Market Regulatory Law contained in Legislative Decree 211 of 06-12-81, and currently such matter is regulated by the Values contained in D. Leg. 861 which has been regulated by Supreme Decree 093-2002-EF of June 2002.
That is to say, in the Peruvian State, commercial law has developed quite a bit in the last hundred years, in such a way that it is frequent for a Lawyer to dominate only one of its branches, for example, a Lawyer can dominate exchange law but not corporate law. Likewise, a Lawyer can dominate corporate law but not bankruptcy law.
5. Business law
Faced with such diversification of the rules of commercial law, another discipline is born within the law which is called business law that develops branches of law such as labor law, tax law, company law, exchange law, law bankruptcy, company criminal law, industrial law, customs law, among other branches of law, which is increasingly important today.
Therefore, it is necessary to specify that commercial law does not have the same field of study as business law, since it covers private law and some areas of public law () (for example economic criminal law) and social law, This is not the case with commercial law, since the latter only covers areas of private law.
6. Economic law
For Guillermo Cabanellas, economic law is the collection of determining rules of the legal relations originated by the production, circulation, distribution and consumption of wealth; and the same author specifies that the following are considered as parts: a) industrial law, b) agrarian law, and c) labor or labor law.
For Jorge Witker, economic law is the set of principles and norms of various hierarchies substantially of public law that, inscribed in an economic public order embodied in the Fundamental Charter, empower the State to plan indicatively or imperatively the economic and social development of a country..
In other words, the field of study of business law is not the same as the field of study of economic law, however, they are very confused by lawyers and some authors.
7. Relations of commercial law
Commercial law is a branch of private law that has its own rules, however, in its application it is related to other branches of law as detailed below.
7.1. With civil procedural law
Commercial law is related to civil procedural law because it is necessary to take into account the Civil Procedural Code and the Organic Law of the Judiciary for the processing of the processes established in the General Companies Law and the Securities Law.
7.2. With the registry right
Commercial law is related to registry law because it is necessary to take into account the Companies Registry Regulation of 2001 for the registration of Companies and for the registration of contributions in favor of companies. The same occurs when the registration of the Individual Limited Liability Companies is requested. It is also necessary to take into account the registry rules for the registration of the inscribed real guarantees that guarantee the issuance of obligations.
7.3. With the notarial right
Commercial law is related to notary law because for the constitution by public deed of Limited Liability Companies or Individual Companies it is necessary to take into account the Law of Notaries. It is also necessary to take into account the Notary Law for the processing of protests of the securities subject to protest, in accordance with articles 75 to 77 of the Notary Law.
7.4. With civil law
Commercial law is related to civil law because some provisions of the Civil Code are necessary for commercial law. For example, Article I of the Preliminary Title is applicable to commercial law in which the rules for the repeal of the rules are regulated. The Civil Code is also necessary to take into account for the purposes of payment in contracts entered into by the company, individual limited liability company or merchant, and the same occurs to take into account the effects of contributions. The Civil Code is also necessary to take into account for the conclusion of contracts regulated by the Civil Code and for the constitution of real rights by the company, individual company with limited liability or natural person or real rights constituted in favor of the society,individual company or natural person.
7.5. With criminal law
Commercial law is related to criminal law because some provisions of the Penal Code are of special importance for commercial law, such as the rules that provide for and sanction the improper issuance of checks and other crimes.
7.6. With criminal procedural law
The commercial law is related to the criminal procedural law because for the processing of the processes of undue checks and other criminal processes it is necessary to take into account the Code of Criminal Procedures and the current articles of the Code of Criminal Procedure.
7.7. With labor law
The commercial law is related to the labor law because for the commercial law the provisions of the labor law are necessary to determine the labor regime and the social benefits of the workers of the companies, individual companies of limited liability or natural persons.
7.8. With tax law
Commercial law is related to tax law because the rules of tax law are necessary to request the Single Taxpayer Registry to determine in which category of income tax each company, each individual limited liability company and each person are placed natural. It is also necessary to take into account the tax regulations to determine the amount to be paid for each tax to which the company, the individual limited liability company or the natural person acting as a tax debtor is affected.
7.9. With constitutional law
Commercial law is related to constitutional law because article 71 of the 1993 Peruvian political constitution establishes that regarding property, foreigners, whether natural or legal persons, are in the same condition as Peruvians, without, in any case, they can invoke an exception or diplomatic protection.
In the second paragraph of the same article, it is established that within fifty kilometers of the borders, foreigners may not acquire or possess, by any means, mines, land, forests, water, fuels or energy sources, directly or indirectly, individually nor in society, under pain of losing, for the benefit of the State, the right thus acquired. The case of public necessity expressly declared by supreme decree approved by the Council of Ministers in accordance with law is excepted.
