Abstract

SANTIBANEZ ORELLANA, José Manuel. Collusion, Contrariness in its Typing in Relation with the Standard of Proof and the Purpose of the Right to Competition. Opin. jurid. [online]. 2020, vol.19, n.39, pp.251-288. ISSN 1692-2530.  https://doi.org/10.22395/ojum.v19n39a11.

This article aims to demonstrate that, after looking for an alternative to the apparently feeble sanction that the Competition Court (Tribunal de Defensa de la Libre Competencia or TDLC in Spanish) imposes to those responsible of collusion, the legislator incurred in imprecisions that might compromise the institutionality that regulates and sanctions it. It proposes the contrarieties of identifying it as a felony by applying the criminal justice standard of proof, the debatable efficiency and sanctioning it in the said court and its effect for purposes of the right to freedom of competition. As a methodology, this piece of work employs a theoretical research methodology and a collection, review and analysis of doctrinal works. Because of the judicial evolution of collusion, the research is aimed by the logicalhistorical method in a complex structure that, because of the new regulation, binds it now with a specific standard of proof. The results make evident fragilities in the observance of the non bis in idem, existence of contradictory sentences in sanctionative and criminal law administrative headquarters, as the inexistence of effective jail for its felons. The conclusion confirms dogmatic inconsistencies in its typing and that, considering as mitigations the quality, quantity and entity of the proofs and fundamentally the high standard for the appreciation of these, we are in front of symbolic establishment of its penalty. With this, the preventive, corrective and sanctionative purposes of the Law are not protected; it is then suggested to strengthen the attributions of the Sanctioning Administrative Tribunal and standard of proof that allows an adequate and efficient sanction of collusion under the objectives of the freedom of competition law.

Keywords : freedom to competition; freedom of competition; collusion; standard of proof; purpose of the right to freedom of competition.

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