The validity of the Spanish registry system, inherited for historical and cultural reasons, supports the principles that in another context have allowed, since 2002, the reactivation of the Mercantile Registry, after several decades in disuse in our country. Today in Cuba the Mercantile Registry is integrated into a system made up of fourteen territorial mercantile registries and the central mercantile registry.
The challenge of the reactivation has been, in addition to promoting the registration knowledge of operators and entrepreneurs, the incorporation as a new subject of registration to the perfected state company, the basis of the Cuban economy, placing it against the guarantees and risks of the registration effects, for the sake of legal security, the elevation of responsibility, legal control and the autonomy that is promoted for these that interact with the country's corporate system; other entities that participate in the Cuban economy through branches and representative agencies; other contractual forms and joint ventures and totally foreign capital, the latter face the dangers of sanctions of extraterritorial laws for those who trade with Cuba,fact of a negative impact on the Cuban economy and on the Registry in terms of publicity that we cannot fail to point out.
- The first thing I would like to highlight regarding the Cuban registry system is its attachment to its roots, such as civil and commercial law in general, which endured the influences "of the other right" for almost 58 years; ever since the American interventor government in 1900, with Military Order No. 400, modified the Regulations of the Spanish Mercantile Registry, which was extended to the Island of Cuba.
The legal and cultural bases that modern Cuban society soon assimilated from the Roman-French or Latin law system, one must think, prevented dismantling that system of law, which implied the registry, no matter how folded the pseudo-republic was to the dependence on North American capital.
At that time, there were no shortage of complaints for fraudulent acts that sought protection in the legal security records; as a result there were legislative attempts to confront them; the Public and Administrative Register of Public Limited Companies created in 1937 had, among its purposes, that purpose, without materializing it due to lack of political will to confront corruption; the latter was one of the causes of the revolutionary process that took place in 1959. It is worth remembering that one of the ideas that inspired the Cuban revolutionary movement was the slogan "Shame against Money."
- Lo segundo, es la compresión ius filosófica de la seguridad jurídica en cualquier sistema de propiedad y de comercio, como garante del ordenamiento jurídico del Estado: los titulares de derechos y obligaciones y los terceros que intervienen en el tráfico, sin renunciar al conocimiento acumulado en este campo, adecuándolo a las particularidades de cada Estado y sociedad. Nuestro sistema de derecho se enriquece hoy por medio de los sistemas registrales en varios ámbitos de la vida social, que en el tema empresarial se expresa en el empeño de fortalecer su actividad, su integración y la inserción de la economía cubana en la economía internacional, luego de su continuo crecimiento en los últimos años, a pesar del bloqueo a que ha estado sometida.Lo tercero es la convicción de que los imperantes cambios y desafíos a los que se enfrentan las economías y sus actores, unido a los avances de las ciencias de las comunicaciones, determinarán el continuo desarrollo de nuevas herramientas de gestión registral, seguridad y publicidad en los registros mercantiles en particular, que en cierta medida convocarán a redefinir el diseño original estructural y funcional de los mismos, concebidos cuando aún la economía no tenía las dinámicas actúales, ni estaba globalizada en los términos y riegos presentes, ni se habían desarrollado instrumentos tan complejos en las finanzas y en el tráfico mercantil. Ello si, en definitiva, pretendemos ocupar un espacio más activo y eficaz en los escenarios difusos e intrincados de la seguridad futura, confrontándonos, pero más resolviendo las actuales tendencias hiperdinámicas de la responsabilidad y de la seguridad en sus aspectos más pulsantes.
Related to the subject at hand, it is impossible to ignore a simple characterization without reasons of figures from the world economy; This is identified by the creation of less material wealth, concentration of oligopolies and finances, concentration of patented scientific knowledge, damage of business activity to the environment and ecosystems, competitiveness and aggressive advertising without precedent in the market, the attempt from different centers of power to reduce the formalities and control of the acts of commerce and the no less important that propitiate this meeting, corruption and money laundering; together with the rescue in several peripheral countries of the economy of a social nature. Before these realities, it will be difficult for the public service to remain indifferent.
Neither the Aristotelian definition of corruption, limited to the rulers, nor the structural or systemic models to explain them, nor the definitions still predominant in the means of capital, based on the de-structuring and thinning of the social state, blaming the latter, can unravel current phenomena of corruption. His explanation seems to have to do with multifactorial causes and conditions of society, the State and the individual, in the face of key problems such as the distribution of wealth, the exercise of power, equality, the formation of ethical values, legal security and the prevention of human behavior and organizations, among others. In the latter I identify the role of the legal security records.
Our experience in the issues convened for the reasons initially raised is still in the making; However, since the reactivation of the registry, attached to the Ministry of Justice, it constitutes a matter of priority.
The Registry was reactivated with an active nature, granting the system the power to verify the legality of the registered entries, in a concept perhaps broader than the traditional classification itself; Its purpose is that of legal control, which subjects the registration holder to a permanent verification process. I will return to this aspect later.
It may be opportune to recall that since 1993, on the occasion of the UN's VI Anticorruption Conference in Cancun, it was already recognized and I quote: "that corruption schemes tend to be more sophisticated and discreet than before"…, This has not changed, on the contrary; The example of the “agility and versatility of the money laundering process with the integration of the world financial system through electronics and telematics, as well as the diversification and technical complexities of instruments and operations, without forgetting the complexity and negligence, was also pointed out. and insufficient regulation and surveillance ”; progress has been made in the latter, but not enough.
The solution proposals go through complex responses from governments, the financial system, public institutions and civil society itself; adding to the mercantile registers with a bias to that effort is a commendable task; security must not compromise with fraudulent, not even in the form of risky advertising. Human emancipation has had a colossal enemy in corruption.
Regarding the registry, this passes through two prolegomenal aspects of the theory, the legality of the inscribed and the registry disagreement, both resolved in their time by the architects of the system with the qualification, the first and with the enforceability, the second, and they continue to be its pillars, precisely for a reconstruction if necessary, in the face of new realities.
I have already indicated the active nature of the current Cuban registry, I explain that it is specified in the verification that is carried out at any time of the registry protection, not only to detect or prevent an act of violation of the registry system, but also has the objective of promoting the update; it is about the protection of the legal system in the first place, from which legality and publicity benefit. The verification has prioritized in its mission the nature of the commercial registry protection, that is, responsibility. Therefore, among its aspects, the corporate purpose, the appointments and powers of the directors and the patrimonial issues should not be missing, although it is not limited to this, since it includes other aspects related to the registrable;It is to a certain extent a break with the basic premises of the belief system, originating new capabilities to the Registry of a permanent nature without pretending to fulfill the duties of others, since the registrar does not rise to an auditor, but rather to a manager of the registry activity, regardless of the responsibilities provided for in the law on tariff surcharges and partial closures of the registry due to not updating on time.
In essence, new tools are developed in the face of registry mismatches, necessary perhaps in our case more than in others, given the years of disuse of the registry; but at the same time, the basis for the verified certification has been created, which adds a new value to advertising and the role that the Registry can fulfill ex officio, in our system, has been expanded.
It is true that our greatest problem, to face the complexities of a quality and excellent service that gives answers to these issues in the order of technologies, is not only to understand the epochal change in information, that is, the handling and transportation of the registry advertising in the century of communication; Rather, in these times, this paradigm requires a significant cost for economies that are not from the first world, including that of the security of the registry model itself, which puts us in constant challenge before the answers and exits of the registry practice, and even more of its reengineering.
The Efficacy Register, as it is stated to have unavoidable references in Spanish, German and Dutch, offers greater security, given the general nature of the purification of rights and acts, through the qualification and requirements of the previous circumstances, which make it possible to purify the registry information and apply the benefits and scope of the registry public faith; Unlike, for example, the French and US document registers, which are basically limited more to establishing priority than to checking legality. However, I think that it is not a matter of the present problems, the confluence of both systems in itself transcendent, the latter advocating the private document, the speed and the lack of formalities that originate a cost outside the singular registry and ours,that you prefer the notarial public document, with its cost, on the occasion of a double qualification; The immediate question in any system is to advance by its means in the registry control and prevention systems.
Since 2001, after the uncovering of the case of the energy giant Enron, which hid losses amounting to 30 billion dollars, hurting the holders of shares of the seventh largest North American company, a dozen mega US companies involved were revealed in fraud; the Word Com., the Global Crossing, the Merk, the Medco, the Adelphia, the Imcione, the Cerril Lynch, the Xerox and the Tico, falsified accounting data to appear profits, artificially increased their business figures, recorded income from subsidiaries that they did not receive, they provided false credit guarantees while in bankruptcy, they carried out transactions with privileged information to the detriment of the buyers of shares that went on the market, they recommended actions classified as negative,they inflated balance sheets and evaded the treasury, respectively and indistinctly; corporate crimes that are prosecuted and treated differently, to which entities from other States did not escape. Facts that recalled the scandals of the 70s of the bankruptcies of the Penn Central Railways, the Franklin National Bank and the WT Grant Department Store Chain, which are now repeated multiplied.
These events should be sufficient to confirm that advertising should not be divorced from control; and that the interest of the mega companies in the control of the acts of commerce is questionable, now when the records are more necessary for the guarantees of the planetary economy, given the proliferation of entities and advertising technologies that are not directed precisely to legal security.
In our case, the interrelation of the Registry with other offices and institutions requires continuous efforts and development of means that facilitate the processes of information exchange on the issues discussed here, which already show modest positive results in the interconnection of the Registry with the Ministry of Audit and Control in registration verification, the Ministry in charge of Foreign Investment, the National Office of Tax Administration and the Central Bank of Cuba, among other entities in registration aspects.
At the same time, it is valid to recognize that the erga omnes effects of the registry pronouncements demand an even greater impact on the economy and the legal system, sometimes paying taxes to a formal and informal network of institutions that do not always recognize them equally, nor they identify all their connections; related to the gradual process of management of registry knowledge in operators, entrepreneurs and public officials.
It is important to understand that we already travel in need, whether we want to or not, in a system of security interconnections for certain acts of trade, which due to their relevance affect national and international legal systems and world trade; the behavior of these problems at a global level requires greater integrative efforts.
To what extent these interconnections, which are forming a system outside the registry, which depends on the registry, and a parallel system that does not depend on the registrable, and that affects traffic, is identifiable to channel organizational and functional strategies, providing a new mission to the Registry, and an answer to the challenges of the trade, is a challenge without having to be visionary.
The latter will require that non-registration scientific thinking lends itself to registrable solutions, not only in the telematic order as is already done, but in the integral management of science to organizational processes and communication in the field of law. mercantile and its registry components, without fear of rethinking elements of the system's epistemology, if necessary. Many times the new is nothing more than looking at the original with different eyes.
Finally, it seems appropriate to express that, together with the effort to increase the registry culture in the towns of the Cervantes languages and beyond, we must also initiate joint efforts that allow the development of a Latin American registry model that contributes to the continuous approach and integration of our economies and peoples.
