Criminalización de la Colusión y Delación Compensada: Elementos para un Análisis Riguroso de la Persecución Penal de Carteles

Agustín Ignacio Walker Martínez

doi:10.5354/0718-4735.2020.57302

Abstract

Who should exercise criminal action for collusion cases and why? This question - already frequent in our penal and competition system - has been further renewed during previous months’ debates. For such a relevant discussion, it seems of the utmost importance to remind, stop and analyse, the current regulations after bill 20.945 as well as to wonder why legislation was done in such a manner. This work constitutes an analytical approach to Chile’s 211 Law Decree’s fifth title (DL 211), which has been introduced by this law, along with its history, tensions and context. Specifically, the purpose of this work is to highlight the most critical aspects of collusion criminalization by analyzing criminal sanctions pertinence and convenience. Further on, it attempts to do so while endeavoring to enlighten the main characteristics of the implemented regulation - and its purpose - with the intention of contributing with both content and perspective as a way of collaborating to a debate that appears to be sometimes filled with rather ineffective slogans. Indeed, for achieving such a purpose, this work pretends to analyze the legislator’s adopted decision on the 20.945 bill, analyzing both theoretical and practical fundamentals around the debates on collusion criminalization’s convenience. Additionally, the article looks to identify the main elements to be considered when analyzing the criminalization of collusive agreements, allowing the reader to grasp a wide global perspective of the situation. Bearing this in mind, the article analyses the adopted criminal type - with its different components - contrasting it with the decisions taken in comparative law. Later, it reviews the main institutional design criteria taken by Chile’s legislator, an endeavor through which is attempts to reveal its most relevant conflict points, especially regarding the exercise of criminal action.

Criminalization of Collusions and Leniency Policies: Elements for a Rigorous Analysis of Criminal Prosecution of Cartels

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