Goodwill

Summary: 1. Introduction .- 2. Antececedentes .- 3. Sources of law .- 4. Civil law .- 5. Law does not codificaco .- 6. Public law .- 7. Private law .- 8. Social law .- 9. Area of ​​knowledge .- 10. Economic function .- 11. Definition .- 12. Definition of enterprise and entrepreneur .- 13. Motivation for this research work .- 14. Theories about its legal nature of goodwill .- 14.1. Introduction .- 13.2. Theories of legal individuality negatorias .- 13.2.1. 13.2.2 .- atomistic theory. Theory of universality without legal individuality .- 13.2.3. Intermediate theory .- 13.3. Theory that considers that it is legal individuality .- 13.3.1. 13.3.1 .- It is a moral person. It is a universal law .- 13.3. Theory that is a heritage of involvement .- 14. Strasbourg Congress 1962 .- 15. Classification of goods that make up goodwill .- 15.1. Tangible assets that make up goodwill .- 15.1.1. Property that make up the goodwill .- 15.1.2. Real estate comprising goodwill .- 15.2. Intangible assets that make up goodwill .- 16. Title .- 17. Enterprise Fund Registration .- 18. Peruvian law regulation .- 19. Mortgage on goodwill .- 20. Extrajudicial execution .- 21. Diffuse and concentrated control Control .- 22. Democratic Constituent Congress .- 23. Tax implications .- 24.

Sources of information .-

1. INTRODUCTION

From time to time are some issues that deserve to be studied by the writers in this sense appeared in Roman law, civil law, in the Middle Ages trade law appeared in the modern era came the company's right or right to business or business law and corporate law subsequently appeared in this direction at present is the subject of study by the writers goodwill is one of the newest addition to study in the Peruvian law, but has no regulatory legislation, being the only standard that can be studied in this issue the law on transfer of business that is little known in modern times, in this sense to keep up with the latest must study it. That is, is completely normal appearance of new issues that should be the subject of study by writers and in this sense it is clear that we should review the legislation, and other sources of law applicable to such important legal institution.

2. ANTECECEDENTES

In any research work should study history in order to place well in time and understand the legal and economic institutions over time. In this sense then review the main background of goodwill in the domestic or foreign law and Peru. The main background of goodwill are the French bankruptcy law of 1838, and in 1909 was enshrined in that country or state law transfer of goodwill. As we must also take into account Argentina Law 11,867, ie Argentine law in this area is more developed than the Peruvian law. In this respect without going too far can we get a lot of literature on this important legal institution. Peruvian law find a draft bill entitled the business, which regulates the goodwill but not in force, making it clear that the same can not be taken into account for purposes of the application but only for studio effects. Also in the doctrine and history must take into account the work Argentine Jorge ZUNINO, titled Goodwill, which is a research paper published as a book and is dedicated solely to this subject, in this regard is clear that the study recommended to have strong knowledge of foreign law and more precisely Argentina on this important topic.

3. SOURCES OF LAW

Among the sources of commercial law, business and corporate uses include, and the law, making it clear that all research should be considered the same to follow in detail the sources of law applicable to these branches of right. In any case to consult these topics should consult the Peruvian commercial code of 1902 and the Bill of business. That is, the sources of law are not the same as the supplementary law and in any case the same are set differently in every branch of law, making it clear that tax law has different sources of law and in any case the Peruvian Civil Code 1984 does not accurately represent the sources of civil law, so if you specify meets the Spanish Civil Code of 1889, noting that the proposed substantive amendment to the code is indicated as Peruvian Peruvian Civil Code of 1984 is intended to include a provision that expressly states which are the sources of Peruvian civil law, but this article was written without serious question, since it does not consider many sources of law and all that remained was to enshrine dimensional theory of law or law normativist theory, however, refers to sources of law, but for these times is a proposed standard outdated notes which are not seriously acted in the relevant legislative committee concerned is ie, notes that the work being done is not serious and therefore leaves much to be desired, especially since we are in the Roman-Germanic legal family in which the law takes precedence over other sources of law.

The draft business law expressly states in Article VI of the preliminary title that uses and customs and business precedence over other sources of law, except the Constitution and the law doctrine is warranted for the foundation of resolutions. That is, it is clear that for these times this bill does not contain an advanced standard as it contains many defects are indeed legislative and leaving aside the doctrine and jurisprudence and in any case misses the multidimensional theory entitled under the which it is composed of many elements which is the subject of study for us in further research on comparative law, which shall constitute a legislative breakthrough this time since the theory of law and is octodimensional outdated for these times and is therefore not even clear that this theory has been proposed in the draft in question. Apparently the commission did not know what an item or part or source of law in this regard is clear that this has been very publicly noticed at the time of writing the article quoted since it contains many flaws and are not legislative legislative technique precisely, but substantive issues so it is clear that these legislative committees can not be improvised but composed of people should only be composed of lawyers who must act appropriately advised by specialists, ie they must be integrated legislative committees by very prepared and in any case is to be known that Congress should be required to be a lawyer with a master's degree in law which will result in necessary that the rules adopted in that state power or parliament are of better quality not only about legislative technique but also on matters of substance, ie the proposal the subject of analysis it is clear that the standards would be of better quality in Peruvian law and foreign law, which should be amended by the Peruvian Constitution of 1993, in the direction of change among other issues the requirements for congressional or parliamentary.

4. Civil law

The right is divided into two branches which are codified law and the law is not codified. Being the first meeting in that code is making it clear that in this case we must consider that it must take into account the Peruvian Constitution of 1993 and also Code of 1902, Peruvian trade, ie , whether to study in this issue codified law. Regardless of the law is clear that we could be misled by biased approaches on this important issue as is the enterprise fund. You must study the Commercial Code of 1902 because Peru should consider the sources of law and these are regulated within the commercial law known by many as commercial law in the code mentioned in that sense regardless it is clear that we can being misled by biased approaches.

5. NO RIGHT CODIFICACO

The uncodified law must also be taken into account because we must consider the applicable law and practices in this regard if this issue is investigated without taking into account the same is clear that we are not studying the issue correctly but incompletely or partial or biased because it ignores important part of commercial, corporate and business or business or enterprise, however, another source of law has been considered in this paper is the doctrine which will serve elected positions to support the same as in the aforementioned not only collects information but also adopted criteria or positions which are held using the legal argument which is a tool primarily procedural law, however, is clearly not the only discipline legal which it applies, but applies to all branches of law even applies to comparative law, legal philosophy, epistemology, axiology, and other important legal issues and extrajurìdcos not say for the record that legal issues because the law is not only the law or otherwise does not end with the law but goes beyond, that is, the rule apparently intended to mislead the Peruvian commercial code of 1902, making it clear we need not to apply the same to have more lights in this branch of law that has certainly been a few studies in the law and the same if you took into account other sources of law as is indeed the case law and doctrine.

That is, we must also consider other sources of law or elements or parts of it need to consult to have solid knowledge of the law but in any case it is clear that the sources of law are not exhausted by the law, but that goes there.

6. PUBLIC LAW

In the present investigation should take into account or consider the public's right because we need to study constitutional law, registry, notary and tax law, among other areas, noting that public law can not be modified by agreement, for example in registration can not be agreed upon conditions to register the securities registration are presented, noting that the titles are split into formal titles and titles materials.

7. PRIVATE LAW

In the present investigation we have to consider private law because we need to study commercial law, which is composed of many branches of law within which it is worth mentioning for our purposes right communications, telecommunications, international trade law, defense of free competition, and other branches that are located within private and commercial law.

8. SOCIAL LAW

We also need to consult the social right to study law because we mixed in which are areas of law that are located both in private law and public law and commercial law that is located in the former because it includes corporate, and foreign exchange cartular but is located within the public because it includes bankruptcy, ie it takes a lot to investigate domain expertise and the location of the branches of law, which serves to improve the quality of this research and thus guide the reader through a studded road flares or a compass.

9. AREA OF KNOWLEDGE

When we study the goodwill is necessary to study commercial law because the Peruvian commercial code which regulates the sources of commercial law in the Peruvian law.

When we study the goodwill is necessary to study business law commercial law that is located within the first branch of law indicated.

When we study the goodwill is necessary to study corporate law because the law merchant is located within the first branch of the law mentioned.

When we study the goodwill is necessary to study corporate law because we must check if it contains studies or standards or other sources of law covering goodwill.

When we study the goodwill is necessary to study tax law because we review the implications of this important topic or legal and economic institution.

When we study the goodwill is necessary to study the registry law because we review the sources of the registry law to determine whether it corresponds or not to implement the registration of acts related to commercial transactions.

When we study the goodwill necessary to study law attorney because we study which is applicable to record notarial acts related to goodwill.

When we study the goodwill is necessary to study constitutional law because it must be noted that the Peruvian Constitution of 1993 expressly provides in Article 139 that the jurisdiction is exclusive in the Peruvian law of the judiciary by referring that there are two exceptions are arbitration and military justice.

When we study the goodwill is necessary to study procedural law because we analyze the recordable judgments regarding goodwill.

When we study the goodwill is necessary to study contract law because over the same number of contracts can be held as a lease or sale which should originate positive rating registry entries registry entry.

When we study the goodwill is necessary to study the law of guarantees that it can guarantee the fulfillment of some contracts by the company.

When we study the goodwill necessary to study law bursàrtil because goodwill can guarantee the issuance of shares or bonds by the company in the stock market or capital market.

When we study the goodwill is necessary to study finance because this study includes the study of securities law which applies to finance.

When we study the goodwill is necessary to study international trade law that the first may be the subject of international contracts and warranties such as international sales, international leasing, international bailment, international mortgages, among other acts all referred by the way goodwill or business background.

When we study the goodwill necessary to study law cartular exchange and because the former can issue shares, bonds, commercial paper and securities which are in any case among other standards are regulated by the Securities Act Peruvian current topics that were not covered by its predecessor the law was 16,587, ie, is this an important new legislation. The record that the right part of the right cartular exchange, ie the first part of the second which has been little studied by the national writers, foreign and comparativists.

When we study the goodwill is necessary to study the bankruptcy law because the former may be the subject of bankruptcy or formerly governed by Peruvian law as insolvency and bankruptcy matters governed by the general law of Peru approved the bankruptcy system by law 27809, which is not regulatory, but if he gained many enforceable which have served to clarify the doubts of the text of the law subject matter in this paragraph.

When we study the goodwill is necessary to study municipal administration and because it must process the operating license in the respective municipality according to the relevant administrative procedure, which is governed by the law license of operation that is newly approved and additionally governed by the law of general administrative procedure law 27444, which is the current Peruvian law in this area, which appeals to Supreme Decree 006-67-JUS, making it clear that the law is constantly changing and if we its steps permanently occurs COUTURE sustained or expected for each day we can quit being lawyers or jurists. It is also necessary to take into account the municipal derechio because when companies acquire property or vehicles must be taken into account the law of municipal taxation, which has been the subject of important and well-known or obvious legislative reforms which should be the subject of study by the writers.

When we study the goodwill is necessary to study industrial law because industries can integrate the first, in which case law from other sources must study and apply the law of Peruvian industries.

When we study the goodwill is necessary to study because of trademark brands can integrate the first, in which case the rule is applicable to study and apply the law of industrial property.

When we study the goodwill is necessary to study industrial property rights because the former can be inrtegrado by intangibles such as trademarks and patents which are regulated by the law of industrial property.

When we study the goodwill is necessary to study the copyright because the former can be integrated by copyright or abroad.

When we study the goodwill is necessary to study the right of defense of competition because the former can not engage in monolithic or oligopolies.

When we study the goodwill necessary to study law because the first computer may be the subject computer contracts and electronic signatures, among other issues specific to this area of ​​law.

When we study the goodwill is necessary to study the law of the Internet and information and communications technologies because the former may be the subject of contracts using the Internet and information technology.

When we study the goodwill is necessary to study comparative law because they can make comparisons, which can be macrocomparaciones or microcomparaciones, total or partial comparisons, internal or external, receptions and transplants that can be internal or external, full or partial, between other types or classes thereof, in the first of the topics mentioned in this paragraph of this subtitle. That is, if this legal discipline would not apply in the present work it is clear that it might seem that the subject of this investigation is irrelevant, which is wrong because if it is a topic worthy of much importance in Peruvian and foreign law. In any case it is clear that he has an important economic role in the market is where goods and services being exchanged.

When we study the goodwill is necessary to study civil law because the former may be the subject of contracts and warranties which are regulated among other standards by the civil code and of course the law recently approved as the Secured Transactions Law .

When we study the goodwill is necessary to study the customs law because the company can export or import in which case we study and apply the law and other general rules of customs, on which is written an important book COSSIO Fernando Jara.

When we study the goodwill is necessary to study the telecommunications law because the former can be integrated over the phone.

When we study the goodwill is necessary to study for the levy because we must first study among others regulating agents such as BCR, INDECOPI SUNASS OSINERG OSITRAN, CONASEV, among other issues specific to this important but little investigated as is the branch of law indicated.

When we study the goodwill necessary to study law because the first communications can make use of communications among which the fax, telephone, postal and couriers, mail, among others.

When we study the goodwill is necessary to study the rights of legal entities because in some cases the companies which constitutes a goodwill are legal persons, ie not the same legal person enterprise which have distinguished at another site and in any case not because we want repeat incurring tautology is to repeat knowledge.

When we study the goodwill is necessary to study criminal law because the company which owns the former may be subject to criminal proceedings.

When we study the goodwill is necessary disciplinary study of law because the company it belongs to the former may be subject to sanctions.

When we study the goodwill is necessary to study the banking law because the company it belongs to the former may be a bank.

When we study the goodwill is necessary to study the financial law because the company it belongs to the first may be an entity of the financial system.

When we study the goodwill is necessary to study the law of insurance and reinsurance company because it belongs to the former may be the subject of insurance and reinsurance.

When we study the goodwill is necessary to study the law of contract because the former may be a debtor or creditor obligations within or outside the country.

When we study the goodwill is necessary to study the real rights because the former may be a matter of them can even register the same in the registration area registration offices.

When we study the goodwill is necessary to study in private international law because the former can be located in several countries and in this sense we must consider the applicable law and also of course the judge, among other topics.

When we study the goodwill is necessary to study labor law or labor law because the former may belong to a company that has hired workers or in other words it has entered into employment contracts.

When we study the goodwill is necessary to study air law because the former can be formed from other goods by aircraft.

When we study the goodwill is necessary to study maritime law because the former can be formed among other goods from ships and fishing boats also.

When we study the goodwill is necessary to study cosmic law because the former can be integrated among other goods by interplanetary spacecraft.

10. ECONOMIC FUNCTION

The subject studied is an important economic role in the market because it makes the goodwill may be subject to contracts or guarantees which will result in the increase of trade, however, we must record that the difference is not notice much because Peruvian law security interest which is inspired by a CIDIP already introduced some important new legislation that would be introduced by the draft law of the business, in this regard is clear that such a body if it is important for the Peruvian economy and in any case as to warn goodwill provided its function is not regulated the security interest, which is a topic of current interest in Peruvian law, foreigners and of course in comparative law. That is, if there were no security interest Peruvian law is clear that the economic function clearly be noticed because the assets of the company could be subject to greater number of contracts and all guarantees, which are not always mortgages or security interests therefore this issue should be carefully studied by the writers with solid knowledge of economics which will serve to revive the economy of the different states in this regard is clear that states have legislation on the subject are studied further development and more prone to it, all of which should serve to disappoint or transplant Peruvian law goodwill, but it is clear that the difference is not much notice as is required because the law of Peruvian security interest has subsequently, but If the more options with investors is clear that the market is more flexible, however, must be taken as limits do not create more categories than you need reality or current requirements.

Consequently we must point out that the draft should be approved and not the law of security interest is clear that the benefits were applicable only to businesses and other economic agents, which does not happen in this case because what has happened is exactly the opposite since it has approved the Law on Secured Transactions but not approved the draft law of business.

11. DEFINITION

In any research work should be investigated to define the term to take the bull by the horns so they can conduct an investigation with solid doctrine on the subject of research as in this case the institution studied. Goodwill is the set of goods that make up the company. Are natural persons or legal entity the goodwill or goodwill only have the companies. Therefore it is clear that if a marital community is not a business owner can not be the first owner of goodwill. That is, every company has a commercial background, whatever its legal organization, in this regard is clearly warranted for studies DEFINITIONS to provide other legal entities. It has been defined by saying that is the set of productive forces and assets, homogeneous and heterogeneous on a particular trade or industry practice and as compact and economic organization in existence and operating independently of the life of the founder and his successors , is set to attract and keep their customers (DI GUGLIELMO). Or the set of elements, tangible and intangible, meeting with a view to expanding trade (Mazeaud).

The definition provided by DI GUGLIELMO seems to be a definition of economic, making it clear that it should be little understood by lawyers, but the definition of Mazeaud if it is a legal definition, in this sense is necessary to mention which is easily understood by lawyers. That is, the doctrine varies the definition may be given by lawyers and economists, among other writers. To ROSENBERG goodwill is goodwill or possession of Intag that allow a company to continue to get a higher profit rate than normally earned by other companies carrying the same type of economic activity. In this sense the author confuses the goodwill with goodwill, as they are two completely different terms, because goodwill is interrelated whole company assets, while the good will is a part of goodwill. That is, there is a part of everything, but not equal, so for our purposes has agreed to differentiate and thus have a solid knowledge about the company and especially on the goodwill.

RIBO FERNANDEZ FERNANDEZ DURAN, and required that one of its intangible assets of the company members made up the clientele and negotiable expectations, ie, the intangible asset of the company, which can not be used without transfer of this. The expression goodwill (good consideration or volutand) is intended to mean the spiritual or intangible assets of the business as that is the core of goodwill. These authors further require that its value as an intangible asset only reflected in the accounts when it is the result of an acquisition expensive. Outside the accounts recovery is obtained by capitalizing on the difference between the benefit to the company and the normal profit in the branch. That is, the latter author does not define the company but he does or make a comment on that because we need the goodwill is part of the company or enterprise fund, but not the same as the first, therefore it is clear that few authors or writers known or been able to define these terms legal and economic, in that sense it is difficult to research which encourages us to further investigate to get to the truth as set out authors who have written about epistemology in the Peruvian law and within the right









12.

























10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26. In the company of the human factor is decisive and the administration has established the foundations to achieve harmonization of the many interests of shareholders, directors, employees, workers and consumers.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39. .

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.



64.

65.

66.

67.

68.

69.

70.

71.

72.

73.

74.

75.

76.

77.

78.