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Mitigating in the Consumer Law

El Mercurio, November 28, 2018.

On September 13th, the amendment to the Consumer Protection Law was published, which will come into force (partially) in March. Among its novelties, the mitigating and aggravating factors to determine the fines stand out. One of the attenuating circumstances refers to the substantial collaboration of the offender in a trial. Such collaboration exists when the provider has a "specific compliance plan", previously approved by Sernac, and its effective implementation and follow-up is proven. Thus, for example, the attenuating would be configured if an online sales store that has prepared a checklist of obligations to be met (prices published in pesos, stock of products, clear terms and conditions sent to the consumer, among others), has sent it to Sernac and has approved it. In addition, to having correctly implemented the plan and having complied and followed all the obligations to which the store compromised in the compliance plan. However, if the implementation and follow-up have been effective, shouldn’t it be considered an exemption from liability for compliance rather than a mitigation to determine a fine? In short, once again it will be the courts of justice that should interpret this mitigation in a broad manner so that it does not become, completely, a dead letter.

FRANCISCA MONTENEGRO
ATTORNEY