Guideline No. 2 of the Economic and Social Policy of the Party and the Revolution establishes that «the Cuban Economic and Social Model of Socialist Development recognizes the socialist property of all the people over the fundamental means of production, as the main form in the economy national. Furthermore, it recognizes, among others, the cooperative, mixed and private property of Cuban or totally foreign natural or legal persons. They all interact together ", and No. 5 calls for" continuing to strengthen the role of the contract as an essential instrument of economic management, raising the demand for compliance in relations between economic actors ".
In the judicial activity of the economic chambers of the popular courts, an increase in the processes is evident, in which self-employed workers (TCP) intervene, due to conflicts between them and litigation with other actors in the economy, in their relations commercial, productive and services.
The TCPs filed claims, fundamentally, because their opponents did not fulfill the payment obligation and because the unilateral termination of the signed contract was arranged. In turn, these were sued, essentially, for the non-amortization of the bank credit, the non-payment of the merchandise received through a purchase or sale contract and the return of the advance payment for work not performed.
In order to grant new subjects in the Cuban economy adequate access to justice, the Governing Council of the Supreme People's Court (CG-TSP), in use of the powers conferred on it by Article 19 of the Law No. 82 of 1997, "Of the People's Courts", in a regular session held on December 14, 2018, adopted Instruction No. 243, through which it makes details to standardize the processing of judicial processes in which the TCP intervenes .
To access the courts by filing a lawsuit, in order to claim rights or fulfill obligations, it is essential to know exactly the rules of jurisdiction, that is, which room or section corresponds to know and resolve the claim in accordance with the subject that is intended to judge. It is the Procedural Law that is responsible for establishing this issue, by dividing the cases by the different matters: economic, civil, labor, family, administrative and criminal.
The current Civil, Administrative, Labor and Economic Procedure Law dates from 1977, with modifications made in 2006, and does not clearly include the cases of litigation that are currently presented with the intervention of the TCP, which, in practice, has caused multiple interpretations by lawyers and judges on which jurisdiction corresponds to resolve the conflict, which results in the incorrect presentation, admission or rejection of lawsuits, a situation that causes harm to people, due to the loss of time in proceedings incorrect and, therefore, access to justice is affected.
That is why, in the first four sections of the aforementioned provision, the CG-TSP clarifies the rules for determining the jurisdictional competence of the economic chambers. In the first, it specifies that it is up to these to resolve disputes between TCP when they enter into economic contracts between them and both act in that relationship in the field of commercial, productive or service activity for which they are duly authorized.
That same section includes non-contractual litigation for damages caused to these new actors in their economic activity, caused by another TCP in the development of their productive, commercial or service activity, among which there is no contractual link that links them, assumptions that are also known to the Economic chambers as long as the requirement that the parties to the conflict are TCP is fulfilled and the litigation is generated as a result of the activity that both carry out according to their respective licenses or affects it, in accordance with the provided for in Article 742 of the aforementioned Procedural Law.
In the section that follows, the CG-TSP drew attention to the claims that arise for breach of employment contracts that formalize the TCP to employ workers, and meant that, in these cases, labor law will apply. in force and will be known by the judges of that matter. This observation is very important, since, sometimes, commercial subcontracting tends to be confused with the relationship of subordination or employment between these subjects.
Of relevance is the pronouncement of the highest body of justice when it ratifies, in the third section, that the TCP litigate on equal terms and with respect to the rights and procedural guarantees that state companies, other legal entities and economic actors, for breach of the contracts they sign.
In recent years, conflicts arising from the granting of bank loans or insurance policies to TCP have also been presented in the courts, in these cases the CG-TSP defined that the Economic Chambers of the popular provincial courts will be in charge of solving these lawsuits when bank financing is secured or granted, in order to use them in the activity for which they are authorized.
In the aforementioned instruction, an alert call is made to the country's courts in the presence of certain conflicts not foreseen in the cases described in the provision, so that, before adopting the decision on the determination of jurisdiction, the Judges take care not to invade other jurisdictional areas, or to unfoundedly deny access to justice, that is, to hear matters for which they are not competent or to deny those for which they are, and this requires a collegial analysis of the case to adopt the right decision and not affect any of those involved.
To file claims in the courts, the current Procedure Law requires the parties to do so duly identified and provide the documents that support the claimed right. In the sixth section of the instruction these data and documents are standardized, which must be: the photocopy of the TCP card and the certification of the entity empowered to grant the authorization to carry out the activity, which proves its scope, start date and the validity of said license. Likewise, it will record in the demand the data on the bank account through which it operates, current or fiscal type, as appropriate, consisting of: account number, bank agency and its location.
It is important to understand this requirement that the CG-TSP provided, since it is necessary to have an exact knowledge of the condition of the litigants in a judicial process in order to place the matter in the correct jurisdiction, according to the nature of the conflict that, in no case, it is at the party's choice, and the contribution of the documentary justification of the alleged right, a requirement provided in the procedural rule.
In more than a few cases, documents are presented that are unnecessary to promote a judicial process, such as the TCP and taxpayer cards, the originals of which are presented by the parties to join the file, which is incorrect, since these constitute documents that identify them. in the event of any eventuality or supervision and they cannot be retained in legal proceedings in the economic field. The CG-TSP eliminates this bad practice and only requires a simple photocopy of the card that certifies the activity.
Nor is it necessary to provide the ONAT certification, which is frequently requested by the TCPs from these municipal offices to establish judicial claims. Likewise, it is clarified that, with the demand, the certification of the bank that accredits the TCP bank account or its balance will not be provided, it is enough to describe the essential data for its location and consultation in case the court considers it essential during the processing of the process.
For the TCP that is sued and cannot obtain the certification of the entity that granted the authorization in the term of the summons or the summons, the instruction offers the guarantee of admitting its answer without this document; in which case the court will proceed to request it ex officio to the aforementioned office, without stopping the course of the process, in order not to cause damage or curtail the possibility of defending the defendant TCP.
Article 4 of Law No. 82 of 1997 establishes, as the main objectives of the activity of the courts, to fulfill and enforce socialist legality; safeguard the economic, social and political order established in the Constitution; protect socialist property, the personal property of citizens and other forms of property that the Constitution and laws recognize; and to prevent infractions of the law and antisocial behavior, to repress and reduce those who commit them and to reestablish the rule of law, when they have been violated.
The objectives outlined in the previous paragraph are the reasons that support the issues referred to in the eighth and ninth sections of the instruction, related to transparency, a sense of fairness and correctness with which matters must be judged, and They avoid going to court to validate or cover up commercial transactions carried out without complying with the provisions of current legislation, as the exercise of this activity without proper authorization constitutes a contravention.
In another order, the instruction ensures the right of the TCP that, at the time of the judicial process, has lost the authorization to carry out the activity of the conflict that is judged or does not have the license for any other reason, to claim the collection of the pending payments or to demand the fulfillment of the obligations that come from the period of validity of the authorization to exercise, by virtue of which signed and executed the economic contract. In the same case, by the principle of equality, TCP may also be the subject of a claim when it fails to fulfill its duties
For the reasons stated, it is essential that the judgments issued in these matters are properly argued and understandable and that they clearly reflect the relationship between the scope of the activity authorized to exercise by the TCP, the type of contract concluded and the non-compliance that generates the conflict, in addition to the contractual obligations required are consistent with the period of validity of the license.
In the civil and administrative jurisdiction, the provisions of the fifth, sixth, seventh, eighth and ninth sections of the instruction shall apply, but only in what is pertinent and when the parties to these processes act as TCP in a legal relationship in these areas, that is, with the Administration or with a natural person in the sphere of individual consumption.
The instruction itself established that it would enter into force when published in the Official Gazette of the Republic, which happened on January 23, 2019, in the ordinary edition no. 2, so its provisions are mandatory from that date.
* Liliana Hernández Díaz, President of the Economic Chamber of the Supreme People's Court
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