Update: Essential Issues of the Chilean Legal System
By Sergio Endress Gómez
Update by Fernando J.Fernández-Acevedo and Radoslav Depolo
Sergio Endress has a Masters in Law from the Universidad de Chile. He is a lawyer and has been a Professor of Taxation and Trial Taxation at the School of Law of the Universidad de Chile since 1994. He is also a partner of Endress, Israel, Olguín, Lawyers and Tax Advisors. He has published “Las inversiones en materia Tributaria” (Investment from tax perspective), Editorial Conosur, 1994-1998; “Manual de Impuesto a la Renta” (Income Tax Handbook), by Patricio Figueroa V., Editorial Jurídica de Chile, 1997, reprinted in 2004, (in collaboration); “Tributación del Propietario de Empresa”, (Shareholders and Partners Taxation in Chile), Editorial Jurídica de Chile, 2005 and 2006; and several articles about taxation. Since 2007, he has been the Director of “Manual de Consultas Tributarias”, a monthly tax review published by LexisNexis Chile.
Fernando J. Fernández-Acevedo is Attorney-at-Law. He has a Degree in Legal and Social Sciences, Universidad Diego Portales (Chile); LL.M. in Innovation Technology & the Law with distinctions, The University of Edinburgh (United Kingdom). He is about to undertake a LL.M. at Chicago Law School (2010-2011). He is a practitioner lawyer with specialization in Information Technology Law, Intellectual Property Law and Economic Law. He has been lecturing at Universidad de Chile for several postgraduate courses between 2008-2010. He is also a member of the Board of the Chilean Institute of Law & Technology.
Radoslav Depolo is Attorney-at-Law with a degree in Legal and Social Sciences, Pontificia Universidad Católica de Valparaíso (Chile); Postrgraduate studies in Commercial and Economic Law at Universidad Autónoma de Madrid (Spain). He is currently a judge at the Chilean Competition Tribunal. He also teaches at Pontificia Universidad Católica de Chile (School of Law) and member of the Advisory Board of the Competition Law Center at the same university. Mr. Depolo is also a member of the Chilean Institute of Law & Technology.
Published May 2010
This Constitution guarantees the full exercise of political rights, in accordance with the principle of popular sovereignty and with the laws derived the Constitution. Suffrage shall be universal, equal, secret and compulsory.
Rule of Law
The citizens and public powers are subject to the Constitution and the legal order. The Constitutional intent is to guarantee the principle of legality, the normative order, and the non-retroactivity of punitive provisions which are not favorable to, or which restrict, individual rights, legal security, and the interdiction of arbitrariness of public powers.
The declarations, rights and guarantees which the Constitution enumerates shall not be construed as a denial of other rights and guarantees not enumerated, or in opposition to the core of these rights and guarantees.
All persons have the right to the effective protection of the judges and courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense. When the right damaged, limited, modified, or threatened affects physical liberty, or in case of an illegitimate worsening of procedures or conditions of detention, or of forced missing of persons, the action of habeas corpus (“Recurso de Amparo”) shall be filed by the party concerned or by any other person on his behalf, and the judge shall immediately make a decision even under state of siege.
Any person shall file a prompt and summary proceeding regarding constitutional guarantees (“Recurso de Protección”) provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality.
Nulla Poena Sine Lege
No one may be convicted or sentenced for actions or omissions which when committed did not constitute a crime, misdemeanor, or administrative infringement as established by legislation in force at that moment.
The Civil Administration may not impose sanctions which directly or indirectly imply deprivation of freedom. Special Commissions to judge citizens are forbidden.
No inhabitant of the Nation may be punished without previous trial based on a law enacted before the act that gives rise to the process, nor tried by special committees.
No Tax without Law
Only by law can the government establish new taxes. The exclusive initiative in the matter belongs to President. The originating House for that shall be the Chamber of Deputies.
Any form of discrimination is forbidden.
Free enterprise within the framework of a market economy is recognized. The public authorities guarantee and protect its exercise.
There are wide and strong protections for any form of property at the constitutional level.
Chile is a centralized country ruled by a presidential system. The Head of the State is elected by direct universal suffrage every four years (Constitutional amendment on September 2005). Nowadays the President is Michelle Bachelet J., in office since March 11, 2006 (Presidente de la República).
She is the supreme head of the Nation, head of the government, and is politically responsible for the general administration of the country.
The President of the Nation shall be directly elected by the people, by second ballot, according to the Constitution. If in the first ballot a candidate obtains more than fifty percent of the affirmative votes validly cast, he or she shall be proclaimed President of the Nation.
The President designates his Ministers, who are only responsible to him.
The Constitution (chapter V) creates a bicameral legislature known as National Congress, consisting of the Senate (Senado de la República) and the Chamber of Deputies (Cámara de Diputados). All the members are elected by universal, free, equal, direct, compulsory and secret suffrage under the terms established by law.
The main function of Congress is to enact laws.
The Senate has 38 members (two from each electoral district –circunscripción- of the country), elected to an eight year term.
The Chamber of Deputies has 120 members (one from each electoral district of the country), elected to a four year term.
Each Chamber has standing committees that prepare and draft legislation. They both pass the statutes. The election in each district shall be conducted in keeping with the criteria of the binominal system.
For more information, please see the chart here.
Chile is ruled by a hierarchy of norms. An overall norm is the Constitution. Under this text, Parliament should pass the laws or statutes (Ley), with an internal hierarchy: institutional act (Ley orgánica constitucional), special act (Ley de quorum calificado), ordinary act (Ley ordinaria) due of quorum of approval and depending of matter. Within the ordinary act or ordinary law you have to consider Decree Law (Decreto Ley), “Decreto con Fuerza de Ley” or “D.F.L.” (delegated law) and Ordinary Law, all of which are of equal hierarchy. The above-mentioned legislative initiatives, in the order they have been described, establish the hierarchical principle.
The executive power has the right to enact regulations (reglamentos), which are called “Decretos Supremos” and are issued by the President of the Republic, and plain “decretos” or “resoluciones”, which are issued by the rest of the executive branches.
All laws and supreme decrees, and the most important documentation from the executive branch, are published in the official gazette (Diario Oficial). The laws receive unique and correlative reference numbers (now we are on number 20,000). In the site Diario Oficial, you can click in “productos y servicios”, to obtain info about gazettes and laws online (subscription for one year of official gazette, US$ 320 aprox. and from 1985 to today, US$ 2.050, aprox.)
Ordinary Laws (Ley ordinaria) are common laws, in the essential meaning of the word. They are laws originating from the Legislative Branch, in the exercise of its primary legislating function. They deal with specific subjects, except those which will be specifically dealt with by the President. Approval requires one reading in each House of the National Congress, with the vote of a simple majority of the presents members, and sanction by the President of the Republic.
The Congress has a residual power to enact law only in specific matters, which is nevertheless very general and comprehensive.
Certain matters should only be regulated by law, like human rights, taxes, matter subject to actual codes, etc. Bills about specific issues, like taxation, should be initiated for the President of the Republic only in the Chamber of Deputies.
The law-making process is comprised of seven steps:
5) sanction or veto;
The President takes part in the making of laws according to the Constitution.
The right to bill initiatives belongs to the President or to each member of the chambers, depending on the matter.
The legislative process begins with a bill of law (called “Proyecto de Ley”) in one of the Houses - the Chamber of Deputies or the Senate, thus called the originating House. Within the originating House, the bill of law is submitted to a technical, material, and formal analysis, which is carried out by the corresponding committees of that House.
The Chamber of Deputies has 18 permanent standing committees, and the Senate 19.
If the bill of law is approved by the competent committees, it is forwarded to the plenary assembly, to be voted on. After being voted on, it is dismissed if rejected, or forwarded to the House if approved.
The reviewing process of the House takes place in the body that did not originate the bill of law. If the bill is rejected, it is dismissed; if it is amended, it is returned to the originating House for re-evaluation. Exceptionally, the House can make a special joint committee of members from each Chamber to approve the project; if it is approved, depending on the object of the bill, it is forwarded to the President of the Republic to be endorsed or vetoed.
Upon receiving a bill of law, the President of the Republic may sanction it or veto it in whole or in part. Furthermore, a veto is not an absolute decision - rather, it can be overridden by 2/3 members of the National Congress. If the veto is overridden, the bill shall be sent to the President of the Republic for promulgation and is published.
Decrees Law or Delegated Laws (Decreto con Fuerza de Ley or D.F.L.)
The Congress may delegate to the President the power to set norms with the status law on specific matters. There are issued by President, by means of delegation of competence from Congress in specific matter. The President (the delegate) would not normally have competence to prepare that law, but has acquired the power to do so by virtue of delegation from the first one (the delegating authority). Certain exclusive competences may not be delegated; for example, rules about human rights. These regulations are common in technical matter like, electric area, water supplies or health standards.
An Institutional Act (“Ley Orgánica Constitucional”) is a separate law, as its name indicates, since it supplements the Constitution, without modifying the constitutional text. In fact, it offers a separate complement to the Constitution, by detailing a matter which the Constitution dealt with only generically.
The Constitution may be totally or partially amended. Our Constitution is called a “rigid” one, based on the demanding proceeds to modify. The necessity of reform must be declared by Congress with the vote of at least two-thirds of the members, but it shall not be carried out except by an Assembly summoned to that effect.
Amendments to the Constitution consist of changes to the constitutional text, of a large or small scope, making additions, deletions, or even alterations. The Constitution may be amended on the proposal of one of the members of the Chamber of Deputies or of the Senate, or the President of the Republic, depending of the matter. Such amendments must respect certain fundamental principles: direct, secret, universal, and periodic vote; individual rights and guarantees; and separation of powers. Approval requires two readings in each House of the National Congress, with three-fifths or two-thirds of the votes of the respective members.
Laws that interpret the Constitution require approval from three-fifths of both legislative chambers, laws that are called “Ley Orgánica constitucional” requires four-sevenths approval, and laws that are called “Ley de Quorum Calificado”, require only an absolute majority of all members of each Chamber of the Congress. The kind of law depends on the specific matter that it is intended to regulate.
Note: In some matters, like labor, you can have several laws. Sometimes, the Congress decides to refund all the laws in a new Code. For that purpose, Congress grants to the President the faculty to refund and unify all the several laws in one Code, but without modifying the articles. Today, our new Labour Code is a mix of several laws and you have to refer to it in terms of our "Labour Code" refunded (now) by the Law number __ (the last one). Normally, the same text contains the correct reference; for example, the Labour Code says: DFL Nº 1, from 1994, "Establish a refunded, coordinated and systematized text of Labour Code..." Then you have to refer to that, saying, "The Labour Code, in his text established for DFL Nº 1, from 1994."
In other cases, you only have one text, the same law where the legislator can add some changes, maintaining the number of the law. Is the case of the Tax Law, it has several changes, but in fact has maintained his number since 1974. Again, normally the beginning of the law gives us the key: it says: Tax Law, "Decree Law Nº 830, from 1974," currently/up to date to 2005.
The former Chilean criminal procedure (code for which was enacted in the early 19th century) was a legal system based on an inquisitorial process, and characterized as mostly in writing and secret. In addition, the crime investigation, the prosecution of its authors, as well as the final judgment of the case was made by the same person: the criminal judge. All the foregoing resulted into a violation of fundamental rights protected by the principle of the due process of law under the Chilean Constitution.
Within the process of modernization of the public institutions, the Chilean governments of the last decade considered extremely important to implement a radical reform to the criminal legal system described above, enacting several laws since 1997. Starting in the year 2000, the so called “Reforma Procesal Penal” (the “Reform”) has been gradually implemented within the different regions of Chile, now being applied throughout the country.
The main purpose of the Reform - the most transcendental reform experienced by the Chilean criminal regulation in its whole history - is to incorporate the respect of human rights and international standards regarding the justice administration programs performed in Chile. The Reform aims to shape such programs pursuant to the social, political, economic and cultural development experienced by Chilean society in the last decades. The core element of this new system, which is an accusatory one instead of the former inquisitive system, is that the different stages of the process will be handled by different institutions, in order to guarantee the impartiality of the judges, the efficiency of the investigation and the transparency of the whole process.
Additionally, the new procedure has limited deadlines vis-à-vis the former one. The process can last no longer than a few months, instead of the three or more years which were the average extent of any process within the former system. This benefits important aspects of the criminal procedure such as the quality of the evidence and witnesses presented by the prosecutor and the defender, and the right of the prosecuted to remain free or to be set free if there are no legal grounds to find him o her guilty within a short period of time.
The main institutions involved in the Reform are:
a) The Public Ministry (“Ministerio Publico”), an autonomous position (independent from the government) that investigates the crime, and prosecutes the individual against whom are raised the charges. This institution is hierarchically organized under the Attorney General (“Fiscal Nacional”), who commands the other attorneys (“fiscales”) at a national level;
b) The Criminal Public Defender (“Defensoria Penal Publica”), in charge of providing free legal defense to the prosecuted persons. The main principle ruling the actions of this organism is to provide with a professionalized services to all who are being prosecuted for a crime no matter whether they have economic possibilities to hire a private defender or not;
c) the Supervisory Judge (“Juez de Garantía”), a judge specialized in criminal law, who, during the investigation, is in charge of overseeing the due process, the protection of the rights of all the people involved in the process (prosecuted, victims, witnesses, etc.) and also of resolving the conflicts that may arise between the parties.
After the investigation period, and provided it has not been finished by a brief or summarized procedure (measures stated in order to clear the work of the courts), the trial itself takes place. During the trial, which is developed in a public and oral session, the prosecutor and the defender intervene. The parties present their respective evidence, arguments and requirements before a criminal court comprised of three judges, who until such moment were not familiar with the case.
The most remarkable improvement of the Reform is that it applies important principles of the due process of law, such as the impartiality, the transparency, the immediate appreciation of the evidence by the court, the quickness of the procedure, the efficiency in managing the resources available, the due defense of the prosecuted, the protection that the State grants to witnesses and victims, and the special attention that the State provides to the latter helping them to overcome the consequences of the crime.
The judiciary constitutes an autonomous and independent branch of government not subject to any other.
The principle of jurisdictional unity is the basis of the organization and operation of the Tribunals. The exercise of jurisdictional power in any type of process passing judgments and having judgments executed belongs exclusively to the Courts and Tribunals as determined by the laws, according to the norms on the competence and procedure which they establish.
The Chilean judicial system is historically divided into three levels: Supreme Court, Courts of Appeals and tribunal of first instance (or lower level). See more at the Ministerio de Justicia.
At the top of the judiciary courts there is a Supreme Court, or “Corte Suprema”, with 21 judges who are appointed by the President of the Republic pending approval of the Senate, and who are selected from a list of five judges made by current member of Supreme Court. The Supreme Court has the administrative and regulatory control of all judges.
There are 13 courts of appeals and a lot of ordinary judges (the lower level), divided into civil and criminal matters, children and labor.
There are also judges in taxation matters at the lower level, but they are not independent.
The Public Prosecutor (“Ministerio Público”) is an autonomous and hierarchical organization led by “Fiscal Nacional”, who is in charge of representing the peoples’ interests and prosecuting crimes.
The Constitutional Court (“Tribunal Constitucional”) is in charge of the constitutional review of the laws. It must review statutes before they are enacted (in abstracto control). This authority must declare a law or an act with the force of law inapplicable or unconstitutional. In the first case, the norm ceases to have effect but only in the specific case where is declared. In the second case, the norm ceases to have effect in general terms.
The Constitutional Court consists of ten members: three members appointed by the Supreme Court, three members appointed by the President, and the last four chosen by the Senate - two appointed by Senate solely and two chosen by the Senate from a Chamber of Deputies proposal.
The Electoral Court (“Tribunal Calificador de Elecciones”) has the control of national elections (President of the Republic, National Congress, and Municipalities). It consists of five members: four appointed by the Supreme Court and one an ex-President or Vice-President of the Senate or Chamber of Deputies, appointed by Supreme Court.
This is a part of the executive branch. It shall be in charge of the control of the legal aspects, management and auditing of all the activities of the centralized and decentralized civil service, whatever its forms of organization may be, as well as of other powers granted by law. It must take part in the approval or rejection of the revenue and investment accounts of public funds.
The Central Bank of Chile is an autonomous entity of technical nature created in accordance with constitutional provisions, has full legal capacity, possesses its own assets and has an indefinite duration. The Bank shall, with regard to its duties and authority, be governed exclusively by the provisions of this Act and it shall not be bound for any legal purposes, by provisions present or future, general or special, enacted for the public sector. The Bank shall have as its purpose to look after the stability of the currency and the normal functioning of the internal and external payment systems. The authority of the Bank, for these purposes, shall include that of regulating the amount of currency and credit in circulation, the performance of credit transactions and foreign exchange, as well as the issuance of regulatory provisions regarding monetary, credit, financing and foreign exchange matters.
Chile is divided into several administrative levels, the most important are: “Region” (12 plus the metropolitan area or “Area Metropolitana” where you can find the capital, Santiago), “Departamentos”, “Municipalidades” and “Comunas”.
Chile also territorially has islands like Easter Island (“Isla de Pascua”) and “Juan Fernandez”, named as “Territorio Insular” and Antarctica territory.
Chilean legislation is officially published (paper) in the “Diario Oficial” (official gazette) and in several official bulletins. You can find in Diario Oficial data about online access to these. This is a private company which has state control, and has the legal duty to publish the state official bulletin.
The collected texts of the legislation in force are also available in private editions of 'Codes'. Law topics are shared by several editors: some famous editors are Editorial Jurídica de Chile and Lexis-Nexis. You have access to these private databases in LexisNexis and Diario Oficial. Both databases (lexis and official gazette) are, in general, reliable and based on official data.
Lexis also has data about external commerce (COMEX) and more detailed data about administrative jurisprudence (vgr. customs, labour and tax matters). Diario Oficial offers access to laws enacted from 1998 free of charge.
Microjuris is a new legal database but there is not much current information about its services.
English translations are scarce. Some organizations like the Internal Revenue Service offer some help on tax matters in English.
There are two periodical rakings about law Schools in Chile made by Revista America Economía [[i]] (based upon students’ & lecturers’ quality, percentage of full time lecturers and amount of research) and Revista Qué Pasa [[ii]] (based upon quality perception from judges, lawyers, enterprises and public officials)
Revista América Economía (2009)
Revista Qué Pasa (2009)
Legal Research Centres
1. Antitrust Law:
• Centro de la Libre Competencia [Pontificia Universidad Católica de Chile]
• Centro de Regulación y Competencia [Universidad de Chile]
2. Private Law:
• Fundación Fernando Fueyo Lanieri [Universidad Diego Portales]
• Instituto de Derecho Privado y Ciencias del Derecho [Universidad Austral de Chile].
3. Procedural law:
• Centro de Modernización de la Justicia [Universidad Diego Portales]
• Centro de Estudios de la Justicia (CEJ) [Universidad de Chile]
4. Information Technology Law:
• Centro de Estudios en Derecho Informático [Universidad de Chile]
5. Intellectual Propery Law:
6. Public Law:
• Instituto de Derecho Público [Universidad Austral de Chile].
• Centro de Estudios Constitucionales de Chile — CECOCH [Universidad de Talca].
7. Criminal Law:
• Centro de Estudios de Derecho Penal [Universidad de Talca].
8. Human Rights Law:
• Centro de Derechos Humanos [Universidad de Chile]
• Centro de Derechos Humanos [Universidad Diego Portales]
• Centro de Estudios de Derechos Humanos [Universidad Central]
9. Enviromental Law:
• Centro de Derecho Ambiental [Universidad de Chile]
1. Anuario de Derechos Humanos [Universidad de Chile].
2. Estudios Constitucionales [Universidad de Talca - CECOCH].
3. Ius et Praxis [Universidad de Talca].
4. Revista Chilena de Derecho [Pontificia Universidad Católica de Chile].
5. Revista Chilena de Derecho Privado [Universidad Diego Portales - Fundación Fernando Fueyo].
6. Revista de Derecho[Consejo de Defensa del Estado].
7. Revista de Derecho [Universidad Austral de Chile].
8. Revista de Derecho Ambiental [Universidad de Chile].
9. Revista de Estudios Histórico-Jurídicos [Pontificia Universidad Católica de Valparaíso].
10. Revista de Derecho [Pontificia Universidad Católica de Valparaíso].
11. Ius Novum [Pontificia Universidad Católica de Valparaíso].
12. Debates Jurídicos y Sociales [Universidad de Concepción].
13. Revista de Derecho [Universidad Católica de Temuco].
14. Revista CREA [Universidad Católica de Temuco].
15. Revista Corpus Iuris Regionis [Universidad Arturo Prat].
(*) This list only includes Open Access journals.
1. iBlawg.cl [Instituto Chileno de Derecho y Tecnologías]
2. Blog Legal BCN [Biblioteca del Congreso Nacional]
3. Blog del Centro de Derecho Medioambiental [Universidad de Chile]
4. Regulación y Competencia [Universidad de Chile]
Here is a selection of Chilean legal "portals"(list of Chilean legal websites):
- Diario Oficial (the Official Gazette)
- Biblioteca Nacional
- Colegio de Abogados de Chile
- Colegio de Abogados de Puerto Montt
- Environmental law
- Taxation Law (see also Derecho Tributario)
Mainly about public policy, all are in Spanish:
To search for statistical purposes see:
[i] The last ranking published by this journal was “Ranking 2009. Las mejores Universidades de Chile”, Revista América Economía, Nº 42, October 2009, p. 44. Avaliable online at: <http://rankings.americaeconomia.com/pregrado-chile/files/Ranking_pregrado_2009_AE_Chile.pdf> [visited: 02.12.2010]