The Collission between Specialty and Hierarchy in Consumer Law: Approximation to a Real Antinomy
| Autor | Erika Isler Soto |
| Cargo | Universidad Bernardo O'Higgins; Researcher in the Cátedra Euroamericana de Protección Legal de los Consumidores |
| Páginas | 193-212 |
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018), pp. 193-212
THE COLLISSION BETWEEN SPECIALTY AND
HIERARCHY IN CONSUMER LAW: APPROXIMATION
TO A REAL ANTINOMY
Erika islEr soto*
Abstract
The present article addresses the subject of the solution of the
second degree antinomy, which arises when the criterion of spe-
cialty collides with the one of hierarchy, in the area of consu-
mer law. In this respect, the article discusses the two doctrinal
opinions which can be argued thereon: the abrogable and the
non-abrogable nature of the Consumer Rights Protection Act by
an administrative norm.
Keywords: Consumer Law, Legal Antinomy, Specialty, Hierarchy.
INTRODUCTION
It is known that the idea of the legal system as a hierarchically organised and
systematized complex of norms, in which imperatives that perfectly adjust to one
another in accordance with certain principles of precedence, come together, is a
chimera. In actual fact, we know from practice that in each and every normative
system –and their consequential subsystems- it is possible to nd opposing provisions,
as well as situations not envisaged in them, which are to be appropriately solved and
integrated.
Chilean Consumer Law is no exception, for in fact our Act N° 19.496 on Pro-
tection of the Rights of Consumers (Ley N° 19.496 sobre Protección de los Derechos de los
Consumidores) (LPDC) not only contradicts itself internally, but also contains provi-
sions conicting with other ones set out in different regulations of equal or diverse
hierarchy. The importance of opting for one or the other of the conicting provisions
bears special signicance, considering that the adopted decision will affect the layout
of matters of transcendental importance for obtaining a proper protection for the
victim, such as active of passive legitimation, limitation period, competent tribunal,
etc. Furthermore, as explained by Pardow Lorenzo, there is the possibility that sce-
narios of interference or lack of command unity in public powers might arise.1
* Universidad Bernardo O’Higgins; Researcher in the Cátedra Euroamericana de Protección Legal
de los Consumidores (erikais ler@yahoo.es). This work was generously funded by the research
project “La aplicación de la Ley 19.496 sobre Protección de los Derechos de los Consumidores a
materias reguladas por leyes especiales”, UBO/VRIP 170105. Article received on November 10,
2017 and accepted for publication on March 1, 2018. Translated by Mauricio Reyes.
1
Pardow lorEnzo (2014), p. 12.
Erika Isler Soto
194
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018)
Legal antinomies are therefore to be urgently resolved, by resorting to the tra-
ditional mechanisms of temporality, hierarchy and specialty, to which the ones of
primacy of the public interest and protection of the vulnerable person (pro consumer
principle, pro employee principle, etc.) have been added more recently.2 Neverthe-
less, since they follow diverse applicability criteria, it may be the case that according
to one criterion a certain norm should prevail, but in case of applying a different
criterion, the solution would be the exact opposite. In these situations, we nd our-
selves facing a real antinomy (also called second degree antinomy), which is distinctly
harder to solve.
This is what frequently arise when dealing with consumer rights protection,
particularly since the proliferation of norms regulating certain consumer relations,
which although are special, possess infra-legal rank. So it is, that the present docu-
ment is aimed at analysing one antinomy in particular, which is the one that arises
when the specialty principle collides with the one of hierarchy in the context of
consumer rights protection. Therefore, it will be left aside, for the purposes of the
current work, the study of the situation that presents itself when only specialty comes
into play, because two nor ms of the same rank are in conict, as it would occur, for
instance, if a rule regulating a specic market provides a solution for a certain case
which is different from the one established by the LPDC. In this regard, existing spe-
cialized literature on this matter can be consulted.3
In order to achieve the goal formerly stated, specialized literature thereon will
be consulted, as well as literature on general theory. This work will have an emphasis
on judicial rulings, in order to examine what are the solutions that have been given
in practice.
1. REAL OR UNSOLVABLE ANTINOMIES IN CONSUMER LAW
According to Bobbio, a legal antinomy presents itself when “two mutually in-
compatible norms, which belong to the same legal order, have the same scope of
application”.4 Among them, the ones called real or unsolvable are characterized
by the simultaneous validity of both norms involved,5 situation from which result the
impossibility of preventively indicating which one is to prevail. As this same author
observes, they appear in two cases: when none of the solution criteria can be applied or
when more than one of them are applicable.6
2 For extension reasons, the specic treatment of every one of the mentioned criteria is not subject of
the present work.
3
BarriEntos zamorano (2013), pp. 345-359; Jara amigo (1999), pp. 47-74; Jara amigo (2006), pp.
21-58; momBErg UriBE (2013a), pp. 66-76; momBErg UriBE (2013b), pp. 3-16; momBErg UriBE,
(2013c), pp. 77-83; PinochEt olavE (2008), pp. 9-20; PinochEt olavE (2011), pp. 343-367.
4
BoBBio (1992), p. 189.
5
hEnríqUEz viñas (2013), p. 463.
6
BoBBio (1992), p. 191.
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