Some authors consider that it is a research method, others that it is a science. However, most agree that it is a discipline.
introduction
The purpose of the present work is to compare different aspects of the societies of the Peruvian and Argentine State corporate law; However, as the present investigation must be carried out in light of the guidelines of comparative law, we have considered making a brief passage about it, in order to subsequently apply these scopes.
II. General (elementary) theory of comparative law
2.1. Comparative basic glossary
2.1.1. Comparison
Fix attention (through the comparative method) on the "object of comparison" to confront their relationships or estimate their trends, differences, similarities, as well as their causes.
i) You can compare Rights (that is, legal systems of different States), legal families (that is, two or more similar or similar legal systems), legislation, doctrines, customs, etc.
ii) The legislation of a base State can also be compared with the doctrine of a foreign State. Thus, the jurisprudence of a base State can also be compared with the legislation of that State.
iii) However, it may be classified as comparative law, only the comparison made between or at the level of legal systems (State Rights) or legal families.
In order to achieve its effective utility, the most advisable thing is that external comparisons (macro and micro) are made taking as a basis the legal system of a State; and not between two foreign legal systems or foreign to the base state legal system.
Example: A Peruvian lawyer must compare the Peruvian legal system (base) with the foreign legal system (s).
2.1.2. Macro comparison
Compare a large part of legal systems or legal families (example: a legal branch). It is not more complex to apply than the micro-comparison, it is only broader, and can be:
2.1.2.1. Internal.- When comparing the entire Law or a large part of it, but from the same State.
Example: Peruvian civil procedural law with Peruvian business procedural law.
2.1.2.2. External.- When the entire Law or a large part of it is compared, but from different states. Its purpose is to broaden the legal culture and indirectly serve the practical jurist as useful.
Example: The Peruvian registry system with the Argentine registry system.
2.1.3. Microcomparison
Compare part or small parts of legal systems or legal families (example: A legal institution). Can be:
2.1.3.1. Internal.- When part or small parts of the Law of the same State are compared.
Example: The Peruvian civil lawsuit with the Peruvian criminal complaint.
2.1.3.2. External.- When part or small parts of the Law are compared but from different States. Its purpose is to renew an order or control the reception of a foreign legal system.
Example: The Peruvian purchasing prescription with the Spanish one.
2.1.4. Comparison object
Included in one or more systems, families or legal institutions to which the comparative method will be applied.
2.1.5. Legal family
Set of two or more similar or similar legal systems.
Example: The legal systems: Peruvian, German, Italian, French, Spanish, Argentine, Colombian, Venezuelan, Ecuadorian, Paraguayan, Uruguayan, Chilean, Bolivian, among others; which belong to the Romano-Germanic legal family.
2.1.6. Legal reception.- (also called simply "reception")
It is the internment (fostering) of one or more legal systems or ordinances, or part of them, in a foreign society (State) by another people (State) taking into account their social realities.
Said reception is not automatic, since it involves a whole process that goes from the study and analysis of the legal institution to receive (introduce) until its effective or useful application.
2.1.6.1. Internal.- When the whole or part of the Law of another part of the same State is accepted, it can be received almost always from one branch to another.
Example: Accept the Peruvian procedural sanitation to the Peruvian criminal process.
2.1.6.2. External.- When the whole or part of the Law of another legal system is accepted.
Example: To accept the movable mortgage of Spanish law to Peruvian law.
2.1.7. Legal system
The harmonic, homogeneous and proper legal order of a non-federated State or country is called. It is not synonymous with the set of norms of a State, but it is, with the Law of a State. Also, the grouping or not of the different branches of the Law of a State or of different States is called.
Examples: In the first case, we have the Peruvian legal system; and in the second case, we have first: the Peruvian business system, the Ecuadorian labor system, etc.; and secondly: civil, criminal, notary, registry, etc. procedural systems.
2.2. Background
- In antiquity and middle ages, there is a primitive manifestation and little predisposition to the examination of foreign rights. The “Collatio legum romanarum et mosaicarum” by an unknown author stands out as the first essay on comparative law. However, the majority doctrine recognizes three stages:
2.2.1. The first: From “the forerunners” (Montequieu, Feurbach, Bacon, Grotius, Lord Mansfield and Leibnitz- XV to XVIII centuries) in ancient Greece, although still without conception and technical unity. Montequieu standing out, as the founder of comparative law (for his work "The Spirit of the Laws") and Mansfield, as the greatest English comparative.
2.2.2. The second: From "the initiators" (late eighteenth and early nineteenth centuries), the Historical School of Law encouraged by the comparative study of law.
2.2.3. The third: From "the true comparatists" (mid-nineteenth century to the twentieth century), the environment was prepared for the recognition of the theoretical-practical purposes and the idea of a universal law that could be the basis for the unification of private law, begins with the 1900 International Congress of Comparative Law held in Paris (in which legal systems such as French, Anglo-American, Germanic, Slavic and Muslim were distinguished).
- Subsequently, Leontin Constantinesco's Treaty of Comparative Law (unique capital work of its kind).Finally, we also consider the work of Julio Ayasta Gonzales (Comparative Law and Contemporary Legal Systems) to be important.
2.3. Definition
- Fernando Torres points out that comparative law consists in the application of the comparative method to Law (understood as a legal system and not as a set of norms), whether it is alive (in force) or dead (not in force); but in light of the sources or elements (of the Law) and the reality of each State. Some authors consider that it is a research method, others that it is a science. However, most agree that it is a discipline. After defining (that is, indicating “what is”) comparative law, we consider not only opportune but very important as unavoidable, also determining “what is not” comparative law.
Consequently, we have that comparative law is not a branch of Law, although it allows its application to all branches of Law; Likewise, comparative law is not synonymous with the history of law, nor with foreign law, nor with comparative legislation, nor with comparative doctrine, nor with comparative jurisprudence, nor with comparative social reality, nor with comparative private will, nor with legal parallelism., nor of general principles of comparative law; as well as the antecedents of the Law; since, in any case, comparative law makes use of them or understands them to be such.
- It is not very widespread, and therefore very poorly developed, in our environment (Latin legal forum) as it is in Spain (Institute of Comparative Law of the Complutense University of Madrid) and France, mainly.
2.4. Stages in the comparison process
According to comparative Leontin Constantinesco, this process has three consecutive phases:
2.4.1. First.- Apprehension of the elements to be compared.
2.4.2. Second.- Understanding of the elements subject to comparison.
2.4.3. Third.- Confrontation and relationship of the elements of comparison.
2.5. Purpose
It allows promoting and seeking the development of Law and the world economy by harmonizing-unifying global law for its better knowledge, use and application at national and international level.
2.6. Importance
- It allows us to better understand (by perspective) our own Law based on generality. It gives scholars a sense of humanism and universality. It allows to know and develop the different styles of legal realization of the human phenomenon. It is the most appropriate way for the future of Law.
2.7. Positive consequences of its correct application
Better quality of the Law of the legal systems, better commercial traffic, as well as a palliative to the legal problems to solve.
2.8. Negative consequences of its incorrect application
When applied without taking into account the social reality, serious damage is caused to the legal system by basically generating legal insecurity, as well as Byzantine and endless legislative modifications, forcing, among others, legal institutions, the social reality, the market and economic agents. On the other hand, it generates a static, rigid and stagnant legal system.
III. Internal macro comparison between the previous general company law of Peru (LAW 16123 - ALGS) and its current counterpart (LAW 26887 - NLGS)
3.1. Contribution agreement
The Algs states: "contribution of goods and services for the joint exercise of an economic activity" (Art.1).
The Nlgs refers: "contribution of goods and services for the common exercise of economic activities" (Art. 1).
3.1.2. Comment.- We appreciate that the Nlgs broadens the range of possibilities in the exercise of companies, an aspect that the Algs did not establish.
3.2. Ends of society
The Algs mentions: "in civil society the common economic preponderant purpose does not constitute commercial speculation" (Art. 297).
The Nlgs points out: in civil society the economic purpose is carried out by exercising profession, trade, expertise, etc., without commercial speculation ”(Art. 295).
3.2.1. Commentary.- We note that the Nlgs specifies the way of realizing its economic purpose. In that sense it is a clearer law than the Algs.
3.3. Number of partners
The Algs refers: “at least two. In the corporation three, except the State that does not require plurality ”(Art. 76).
The Nlgs mentions: “at least two in all kinds of society. Plurality is not required when the only partner is the State and in other cases indicated by law ”(Art. 4).
3.3.1. Comment.- It is evident that the Nlgs releases the limitation of plurality of partners for its operation. Criterion that the Algs certainly suffered from. On the other hand, Ricardo Beaumont Callirgos, regarding the second part of the aforementioned article, maintains: “said expression is equivocal because if the State is the only partner, then it is no longer a partner; because partner belongs to whom or with whom ”.
3.4. Social object
The Algs states: "clearly and precisely indicated businesses and operations" (Art. 5, Inc. 4).
The Nlgs refers to: "detailed businesses and operations and, in addition, acts related to the corporate purpose, which contribute to the realization of its purposes" (Art. 11).
3.4.1. Comment.- We consider that the Nlgs has an advantage over the Algs because, since it no longer demands clarity and precision, in addition to expanding the assumptions of the corporate purpose, it is not at all rigid and facilitating.
3.5. Representative power effectiveness
The Algs mentions: "it takes effect from acceptance" (attr. 18).
The Nlgs states: "it takes effect from the express acceptance, performance of functions or exercise of powers" (attr. 14).
3.5.1. Comment.- The Nlgs is superior to the Algs because it basically makes the acceptance action effective, granting administrators and managers the function of notaries. We support the aforementioned in reason, that the Algs only adhered to the provisions of Article 141 of the civil code as regards express or tacit acceptance.
3.6. Invalidity of agreements
The Algs does not regulate it.
The Nlgs refers: "the agreements adopted with omission of formalities, contrary to the law, the social pact or the statute" are null (Art. 38).
3.6.1. Comment.- It is very correct that the Nlgs has included this topic because it must be taken into account that the agreements are impregnated with a fundamental legal security and stability to procure commercial traffic. Consequently, the Algs was openly against the above.
IV. External macro comparison between the new general company law of Peru- in force (law 26887- NLGS) and the Argentine business company law- in force (LAW 19550- LSC)
- In the first place, it is necessary to record that in the Peruvian case, the Civil Code of 1936 regulated civil societies; on the other hand, the Commercial Code (1902) and then the Mercantile Companies Law 16123 (1966) regulated its mercantile peers. However, D. Leg. 311 (1984) - General Companies Law - unifies for the first time the company legislation (civil and commercial). Finally, the New General Companies Law (1988) ratifies this unification. On the other hand, the Argentine Civil Code regulates civil companies, and the Argentine Commercial Companies Law only regulates commercial companies. In this sense, it is valid to carry out an exercise of legal comparison of the New Peruvian General Companies Law with the Argentine Commercial Companies Law.it is pertinent to consider what Enrique Elías Laroza pointed out, who mentioned: “mercantile society always has a profit purpose, civil society does not; civil society has only economic ends that cannot be commercial speculation ”. However, it is also necessary to take into account what was pointed out by Ripert, Messineo and Elías Laroza, who after a long time (decades, the first) trying to find fundamental differences in the object of civil and mercantile societies, concluded in that the difference was so imprecise since there were civil companies with commercial purposes and commercial companies with civil purposes.civil society has only economic ends that cannot be commercial speculation ”. However, it is also necessary to take into account what was pointed out by Ripert, Messineo and Elías Laroza, who after a long time (decades, the first) trying to find fundamental differences in the object of civil and mercantile societies, concluded in that the difference was so imprecise since there were civil companies with commercial purposes and commercial companies with civil purposes.civil society has only economic ends that cannot be commercial speculation ”. However, it is also necessary to take into account what was pointed out by Ripert, Messineo and Elías Laroza, who after a long time (decades, the first) trying to find fundamental differences in the object of civil and mercantile societies, concluded in that the difference was so imprecise since there were civil companies with commercial purposes and commercial companies with civil purposes.They concluded that the difference was so imprecise since there were civil companies with commercial purposes and commercial companies with civil purposes.They concluded that the difference was so imprecise since there were civil companies with commercial purposes and commercial companies with civil purposes.
4.1. Legal nature
The Nlgs refers: "Those who constitute society agree to provide goods and services for the joint exercise of economic activities" (Art. 1).
The Lsc states: "the contract by which a company is incorporated or modified, will be awarded by public or private instrument." (Art. 4).
4.1.1. Comment.- We appreciate that although it is true that the Nlgs avoids expressly mentioning the contractual nature of the company (unlike the Lsc), it does so implicitly since the term "agree" does not mean anything other than "contract".
4.2. Formality
The Nlgs mentions: "by public deed that contains the articles of incorporation, which includes the statute." (Art. 5).
The lsc states: “… by public or private instrument. "(Art. 4).
4.2.1. Comment.- The Lsc adds the possibility of formality of the company by private instrument. In this sense, the Nlgs is lagging behind since it increases transaction costs.
4.3. Legal (moral) personality
The Nlgs mentions: "… from its registration in the registry and maintains it until its registration is registered" (Art. 6).
The Lsc refers: “… with its inscription in the public registry of commerce.” (Art. 7).
4.3.1. Comment.- The moral or legal existence of the company, both for the Nlgs and for the Lsc, is subject to the obligatory nature of its registration.
V. Conclusions
- Comparative law is an important pillar as a source of under-utilized law, mainly due to its minimal study and dissemination; as well as the complexity of the application.
- The Nlgs is much more accurate and open-minded than the repealed (Algs).
- The Argentine Lsc is much more advanced and less formalistic than the Peruvian Nlgs, contributing to better and faster commercial traffic.
- We put on record that initially we intended to develop (apply) this work in accordance with the guidelines of comparative law, but, due to the difficulty, breadth and depth of that purpose (it already involved knowing the law fully - that is, the Peruvian legal-corporate system and the Argentine), we concluded in only carrying out one of comparative legislation (a situation that although we openly acknowledge, we also do not celebrate).
SAW. Suggestions
- Implement as soon as compulsory the subject of comparative law (theoretical- general part- and applicative- special part) and related in the curriculum of all (and not only in some) faculties (undergraduate) and post schools degree of the Universities, respectively.
It should be borne in mind that such implementation implies initial training for teachers and may have legal parallelism and comparative legislation as a starting point (as experience / basic or initial exercise).
- Promote the dissemination of comparative law through academic events.
- It is necessary that comparative law be considered as a source or element of the Law.
- Societies in corporate law require further reflection and study from the economic analysis of law to favor commercial traffic and the economic development of the Peruvian State.
- It is recommended to study the possibility of receiving some aspects of the legal nature of the Argentine Lsc to the Peruvian Nlgs.
VII. Bibliography
Ayasta Gonzáles, Julio. Comparative Law and Contemporary Legal Systems. Rjp editions. Lime. 1991.
Beaumont Callirgos, Ricardo. Comments to the General Companies Law, Editorial Gaceta Jurídica. Fourth edition. Lime. 2004.
Elías Laroza, Enrique. Peruvian Company Law. Legal Standards Editor. First edition. Lime. 2000.
Torres Manrique, Fernando. Comparative Law and Legal Systems. Editora Euroamericana, Lima, 2004.
