Law N ° 19.170 Modifies Decree With Force Of Law N ° 94, 1960, Administration Of Railways Of The State Enterprise Act And Establishes Other Rules Relating To Such Company

Original Language Title: LEY N° 19.170 MODIFICA DECRETO CON FUERZA DE LEY N° 94, DE 1960, LEY DE ADMINISTRACION DE LA EMPRESA DE LOS FERROCARRILES DEL ESTADO Y DICTA OTRAS NORMAS RELATIVAS A DICHA EMPRESA

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"Article 1.-Introducense the following modifications in the decree with force of law N ° 94 of 1960, law of administration of the railways of the State Enterprise: 1. replace article 1, by the following:"article 1.-the State Railways Company is a legal entity of public law, constitute an autonomous State company, equipped with its own patrimony " , based in the city of Santiago and shall deal with the Government through the Ministry of transportation & telecommunications. "."
2. replace article 2 °, with the following: "article 2.-the company of the railroads of the State shall serve to establish, develop, promote, maintain and exploit transport services for passengers and cargo to be carried out by means of railways or similar systems and ancillary transport services, whatever your way, including all the related activities necessary for the proper performance of this purpose. In addition, you can commercially exploit assets that it owns.
This social object can be done directly or through contracts or granting of concessions or by the Constitution, with natural or legal entity, Chilean or foreign, people from corporations that, for all legal purposes following its establishment, shall be governed by the rules applicable to the open joint-stock companies. Complementary transport services may only be through contracts, concessions or societies agreed with third parties, in accordance with the provisions of this article.
The participation of third parties in societies which form the company for the fulfilment of its purposes and the granting of concessions, should be conducted through public bidding, in whose bases will be established clearly and precisely the elements of the essence of the articles of incorporation or the concession contract. Excluded from this requirement companies and concessions which falls on the provision of services under.
The company, under any circumstances, can celebrate acts or contracts that, legally or in fact, involve alienation from the strip of land, bridges and works of art that constitute the path and via rail. Acts or contracts that fall on grounds that are obsolete because of changes to the layout of the line or the change of location of stations or by having raised the railway, under express authorization given by the President of the Republic are excluded from this prohibition. Similarly, every contract, granting a contribution involving give exclusive use of the railway line in whole or part, will be essential condition of the contract, or concession, or contribution to society, allowing third parties the use of the route, on the basis of an equitable and non-discriminatory tariff system.
Acts and contracts that make the company in the development of its rotation shall be governed exclusively by the rules of private law, in all that which is not contrary to the rules of this decree with force of law. "."
3 repealed article 3.
4. Add then title II "Administration", the following entry: "(Párrafo 1° deel Directorio a) of its composition and designation.".
5. replace article 5 °, with the following: "article 5.-the management of the company will exercise it a directory composed of seven members, appointees of the President of the Republic, who also designate one of them to serve as Chairman of the Board.
To be Director will need to meet the following requirements: to) be Chilean.
(b) be at least 21 years of age.
(c) not have been convicted of a crime that deserves worth disturbing.
d) have a professional degree or have played, for a period not less than three continuous years or not, an Executive in public or private companies.
The position of director shall be incompatible with that of Minister of State or Undersecretary.
Directory, will also be made by a representative of the workers, which will only have right to voice, will last two years in office, will be chosen in secret and direct vote by the workers of the company and may be re-elected for four consecutive terms. The election will be convened by the General Manager for day, time, and certain places. The call for election must be advertised for knowledge of staff, with no less than eight days prior to that set for its realization. In any case, the election must be carried out not less than fifteen days prior to the date of expiration of the period of the representative of the workers in exercise that. "."
6 added after article 5, the following point (b)), new: "b) of disabilities and challenges of Directors.".
7.-Agreganse, then of the letter b), new, as articles 5 A and 5 B, the following, new: "article 5 a.-are disabled to perform Manager: 1.-persons, their spouses, relatives legitimate up to the third degree of consanguinity and second of affinity, or by people who are linked to them by ties of adoption" , or through natural persons or legal entities that have control of his administration, holding or acquiring - in any capacity - interest exceeding 10% in transport companies or companies in which the company participates or parties or interested in concessions given by it to third parties.
2. the people who play the positions of President, Vice President, Secretary General and Treasurer in the central policies of the political parties or national policies of trade unions or trade union organisations.
Article 5 ° B-the directors may only be disabled to intervene in a particular business, raison d ' être personal interest or your spouse's or their blood relatives in any straight line up to the fourth degree collateral or by affinity to the second degree inclusive, or adoption or links because of intimate friendship or enmity with him or those who affect such matter.
Recusal should be deducted before the directory so far in that this to resolve on the matter which alleges disability. Objections shall be accompanied by the evidence that would justify the grounds invoked and the case of testimonial evidence, this will be attached through affidavits provided before a notary public.
Deduction of the challenge, President notify of this the affected Director, which shall report in writing to the Board within 48 hours. Answered this or after said term, the Chairman of the Board or who make their times, with or without the report of the affected Director, will be mentioned immediately to an extraordinary session of the Board to resolve the challenge. The failure of the directory will not be susceptible of appeal. While you are not settled on the challenge, directory will not resolve on the matter that this affects.
Director who affect a causal challenge, must give it known immediately to the directory and abstain from participating in the discussion and vote on the matter. A breach of this obligation shall be regarded as serious misconduct.
In the event that the grounds of disqualification comes to knowledge of the person concerned subsequent to the decision of the case, this must be enforced within five working days of the date in which the person concerned was informed of the decision. The directory will only admit you to handling in the event that the Director challenged vote has been decisive to achieve the quorum required by law, depending on the matters concerned. Welcome the challenge, directory, in session specially convened for the purpose, shall be again dealt on the subject that affects the challenge, being suspended the implementation of the above decision.
Notice of the withdrawal shall be effected by letter delivered at home that the affected person has registered in the company, by the Secretary or Minister of public faith. "."
8 added following article 5 B, new, the following point (c)), new: "c) of responsibility, rights, obligations and prohibitions of Directors."
9 Agreganse, then by the letter c), the following, new, new, such as articles 5 ° C, 5 ° D, 5 ° E and 5 ° F: "article 5 ° c.-the role of Director is not delegable and is exercised collectively, in legally constituted room.
Each Director is entitled to be informed fully and documented and at any time, by the General Manager or who do their times, all related to the running of the company. This right must be exercised in a way not to hinder the social management.
Article 5 ° D-the directors must be used in the performance of their duties the care and diligence that men ordinarily employed in their own businesses and respond jointly and severally liable for the damages caused to the company by its actions intentional or guilty.
The approval of Government, or the Office of the Comptroller General, or any other administrative authority, when this appropriate, memory and balance, or any other account or general information to submit directory, does not release managers of personal responsibility that corresponds to them by acts or certain businesses. The specific approval of these recognition does not exonerate them from that responsibility, if any mediated mild, serious negligence or willful misconduct.
Article 5 ° E-the directors are obliged to keep reserve with respect to the business of the company and information that have access because of his position and that not has been disclosed officially for the directory. Does not govern this obligation when the reserve injure the interest of the company or relates to facts or omissions constituent of breach of laws.
Article 5 ° F-is prohibited to managers: 1) adopt policies or decisions that have no purpose fulfill the purpose of the company in the way established in this law or pursue benefit their own interest or those of third parties with whom there are relations of kinship, intimate friendship or commercial or political interests.
(2) prevent or hamper research aimed at establishing their own responsibility or that of executives in the management of the company.
(3) lead to managers, executives, employees or auditors, irregular accountable, to present not reliable or false information and hide information.
4) take in loan money or property of the society, or use on self-dealing or third parties, with whom they have relationship of kinship, intimate friendship or commercial or political interests, goods, services or loans from the company, and 5) perform or engage in illegal or immoral, or acts contrary to the provisions of this law or the social interest , or use his position to obtain benefits or undue privileges for themselves or third parties who have a relationship of kinship, intimate friendship or commercial or political interests. "."
10 be added following article 5 ° F, new, the following point (d)), new: "d) the remuneration of Directors.".
11 Add, then the letter d), new, as article 5 G, the next new: "article 5 ° G-managers and the representative of the workers will receive a diet equivalent to 8 monthly tax units per session to attend, with a maximum of 16 of these units per calendar month. The President, or who subrogated, shall receive equal diet, increased by 100%. "."
(12 added following article 5 G, new, the next letter e), new: "e) of the ceasefire in the position of Director.".
(13 added, then the letter e), new, as article 5 H, the following new: "(Artículo 5° H.-Son causales de cesación en el cargo de Director, las siguientes: a) (resignation, accepted by the President of the Republic, or presented at the express request of this: b) removal, by Presidential Decree founded, issued through the Ministry of transport and telecommunications" for non-serious to the fulfillment of the obligations as a Director. They will be failures serious, among others, the unjustified absence at three consecutive sessions or six sessions of the Board, ordinary or extraordinary, during a semester calendar; and not save the due reservation that article 5° E on the information relating to the company.
((c) inability to psychic or physical, and d) Sobreveniencia of any causal of inability, in which case the affected Director shall immediately cease in office.
(The existence of the causal c) and d) will be established by the Minister of transport and telecommunications, hearing previously affected. This resolution may be appealed to the Court of appeals of Santiago, which will be processed in accordance with the rules that apply to the processing of the application for protection.
The term of the Director functions will be available by presidential decree, and must register, by means of the corresponding authentic documents, the existence of the grounds therefor cease.
Replacement of the directors shall be made in accordance with the provisions of article 5. "."
14 added following article 5 H, new, the next letter f), new: ' f) the operation of the directory. ".
15.-Agreganse, then of the letter f), new, as articles 5 ° I, J 5 ° and 5 ° K, the following new: "article 5 ° i.-the directory with most of their members to be held and shall adopt its agreements by majority of votes of its members present. In case of tie one you will quote a special session to resolve it, and survive the tie, the vote of the Chairman will settle it, or who make their times.
The directory to be held in either ordinary or extraordinary. Ordinary sessions are those that determine the directory itself for days and certain hours, in which treated all matters that the President included in the respective table, which must be communicated to managers with no less than 24 hours in advance to the date of the session. The directory may not establish more than two regular sessions per month.
Extraordinary sessions are those in which the directory is called especially for only those materials that motivate the call. This may be at the initiative of the Chairman or at the written request of three directors, at least. The summons extraordinary session shall be not less than 48 hours in advance and shall expressly contain materials in it.
Article 5 ° J.-the company may only hold acts or contracts in which one or more directors have interest or as representatives of another person, when such operations are known and approved by the Board of Directors and conform to conditions of equity similar to those usually prevailing in the market.
Presumed right that there is interest of a Director in any negotiation, Act, contract or operation that should speak the same, spouse or relatives to the second degree of consanguinity or affinity, or societies or companies which either director or owner directly, or through other natural or legal persons, 10% or more of their capital.
Violation of this article shall not affect the validity of the transaction. However, the company, without prejudice to the administrative sanctions and penalties that apply, shall be entitled to demand compensation for damages incurred and that it reimburse the company for the interested Director, an amount equivalent to the benefits that this, their relatives or their constituents has reported such negotiation. The same right they will have third parties who are affected by this.
Article 5° K-all deliberation and agreement of the Board must be recorded in a book of proceedings; It should be layered consecutively and they will be incorporated into which by strict order of occurrence, without stop perforated sheets or blanks. Proceedings may be writing by any means that ensures their loyalty, is strictly forbidden to make insertions, deletions or adulterants that may affect them.
The minutes must be signed by all the directors who have attended the session. If one of them dies or is imposibilitare, for any reason, to sign it, shall be recorded on the same respective circumstance or impediment.
The Act shall mean approved from the moment that is signed by the directors attending the session, except for the existence of any of the conditions set forth in the preceding paragraph. The agreements contained in the Act only can be effect once approved this.
The minutes shall be approved from the moment of its signature and, since that date, the agreements to which it refers may lead to effect.
Director who wants to save its liability for any act or agreement of the Board, should be recorded in the minutes of their opposition. Also, before signing it, all Director has the right to enter therein the inaccuracies or omissions it contains, according to their opinion. "."
16 repeal articles 6 ° and 7 °.
17 repeal of article 8.
18 added following article 5 ° K, new, the next letter g), new: "g) the powers of the Board.".
19 replaced article 9 °, by the following: "article 9.-corresponds to the directory the Administration and representation of the company, with the most comprehensive and absolute powers and no other limitations than those expressly provided for in this decree with force of law."
The Board of Directors, in addition, shall: a), at its first session and from among its members, appoint the Director who will serve as Vice President of the same. The Vice President replaces the President in case of absence or temporary disability of this to occupy the post.
(b) appoint the General Manager and the Executive of the company to be replaced him temporarily in the event of absence or temporary disability of this for the exercise of office. General Manager designate is or will remove session specially convened for this purpose;
(c) enact regulations and standards deemed appropriate to regulate the Organization internal company and its proper functioning;
(d) establish the bidding rules referred to in article 2 for the purposes of granting concessions or provide corporations with third parties. Also, you must expressly approve the text of concession contracts and statutes of the corporations agreed to constitute.
(e) establish and modify staff plants, fix and determine their remuneration and benefits, and approving the internal regulations of work submitted to his decision to General Manager;
(f) approve and modify the annual budgets of revenue, expenses and investments, and establish the rules necessary to control compliance.
(g) decide on the annual and quarterly financial statements should present the General Manager, in accordance with the rules laid down by the Board of Directors and the principles and systems of accounting applicable to open corporations.
((h) approve the creation of offices, agencies or representations within the country or abroad, and i) confer General Manager General and special powers to other executives or lawyers of the company and, for certain, and specific cases to third parties. These powers you can revoke and limit at any time, without expression of cause.
In no case the directory may be: 1) constitute the company guarantee, surety or solidarity codeudora of third persons, natural or juridical, and 2) to donate. "."
20 following article 9, the following heading added: "Paragraph 2 ° of the General Manager.".
21 replace article 10 by the following: article 9 "(Artículo 10.-Existirá un Gerente General que será designado y removido por el Directorio en la forma establecida en la letra b)."
The remuneration and other conditions of the contract of employment of the General Manager shall be determined by the directory at the time of their appointment. This agreement will require the favourable vote of the absolute majority of the directors in office. "."
22 Agreganse, continuation of article 10, the following articles 10 A, 10 B, 10 C and 10 D, new: "article 10 a. will correspond to General Manager, the implementation of the agreements of the directory, the permanent supervision of the Administration and operation of the company and judicial and extrajudicial representation of the same, with all the powers referred to in the second paragraph of article 7 ° of the code of Civil procedure."
General Manager, without express mention, will enjoy all the faculties of administration necessary for the fulfilment and development of the ordinary course of the company, in addition to the powers expressly delegated by the Board.
This, however, will require prior agreement of the directory: to) acquire, encumber and dispose of movable estate or rights constituted upon them;
(b) sell, assign, transfer, or lease assets of the fixed assets of the company whose value exceeds 1,000 monthly tax units;
((c) hiring credits to periods greater than one year, and d) compromise and submit to commitment.
Article 10 B-the post of General Manager is incompatible with the Director of enterprise. The General Manager will have the same disabilities, responsibilities, obligations and prohibitions which the articles of 5 ° A, 5° B, 5 D, 5° E and 5° F ° support for directors.
Article 10 C-the General Manager attend Board sessions with right to voice and respond with the Board members of all the agreements that have been harmful to the company unless leave expresses record in the minutes of its contrary view.
Article 10 D.-the Manager General, should be cited to acquit positions, labour, may appear personally or by the head of personnel or labor relations manager, which shall be expressly authorized to do so on behalf of the company. "."
23 repeal articles 11 and 12.
24 Article 13, replace by the following: ' article 13.-the workers of the company shall be governed by the rules of this decree with force of law, the provisions of the labour code and its supplementary rules and by decree with force of law N ° 3, 1980, the Ministry of transport and telecommunications. " Therefore it will not be them standard applicable any affecting the workers of the State or their companies. For all legal purposes, are considered as private sector workers.
They will only the quality of workers those people who play permanent work for half a day or more than half a day in the company and provided that there is a link of subordination or dependence with this.
The provision of services by the hour or without bond of subordination or dependency with the company, shall be governed by the rules of the Civil Code.
Workers who, at the date of entry into force of this Act are subject to the pension regime of former box retreats and Social forecast of the railways of the State, shall be entitled to stay within that scheme. "."
25 repeal articles 14 and 15.
26 article 16, replace by the following: "article 16.-any person who provides services to the company, any that is its nature, be liable for all loss or damage that might mediate this, malice or negligence on your part.".
27 repeal articles 17, 18, 19 and 20.
28. replace, in the second paragraph of article 21, the final sentence: "but for founded Decree of Director", by the following "but by agreement of the Board".
29 repeal items 22, 24, 25, 26, 27, 28, 29, 31, 32, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41.
30 Article 23, replace by the following: "article 23.-are the rules contained in article 5 ° F of this decree with force of law applicable to the workers of the company." The violation to any of them, constitute causal expiration of the respective contract. "."
31 replace the heading of title IV, with the following: "(deel Patrimonio, deel régimen económico y de la fiscalización a) of the patrimony.".
32 be added following article 42, the following letter b), new: "b) economic regime.".
33 replacements articles 43 and 44, by the following: ' article 43.-the company in its activities shall be subject to the same financial, accounting and tax rules that govern for open corporations and their balance sheets and statements of situation must be subject to audits by external auditing firms of recognised prestige. "
Article 44.-The annual profits obtained the company passed on to General the nation's income, unless your directory, with the affirmative vote of not less than five of its members, agreed to retain all or part of them as capital reserve.
This agreement shall be subject to prior authorization and written consent of the Ministry of finance. "."
34 article 45, replace by the following: ' article 45.-the company, under any circumstances, can compromise the public credit. " Neither product financing, credits, contributions, grants, bonds or guarantees of the State or any of its agencies, entities or companies, but in cases in which it is possible for the private sector and on an equal footing.
Except ban contributions and guarantees to the State Treasury pursuant to the provisions of this law and the renewal of guarantees, sureties and guarantees granted prior to the publication of this law commits. "."
35 article 46, replace by the following: "article 46.-at the end of the company, their assets will pass to the Treasury of Chile, with benefit of inventory.".
36 repealed article 47.
37 article 48, replace by the following: ' article 48.-Government may not compel the company to provide any service without the proper financial compensation, which shall be subject to the general regime of rates in the company without special privilege any. ".
38 article 49, replace by the following: ' article 49.-assets of the fixed assets of the company whose book value in excess of 500 monthly tax units, can only be disposed at auction or tender, as determined by the Board. ".
39 repealed article 50.
40 added, then article 49, the following point (c)), new: "c) control.".
41 article 51, replaced by the following: "article 51.-the company shall be subject to the custody and control of the Superintendency of securities and insurance on the same terms as open corporations.".
42 Agreganse, then of article 51, as Article 51A and 51B, the following new: "article 51 a.-all report of the external auditors should be sent immediately to the Superintendency of securities and insurance for review and analysis. This review is subject to generally accepted auditing principles to determine the transparency and operational and administrative outcomes of an open joint-stock company.
The report by the Superintendency of securities and insurance should consider the fulfilment of the purposes of the company, the regularity of its operations and point out if it exists or not liability of its directors or executives.
Article 51 B.-the company will only be affects the control of the Office of the Comptroller-General in the same cases, opportunities, materials and form that would be a private open joint-stock company.
However, contributions and subsidies received by the company of the State Treasury, in accordance with article 45 of this decree with force of law are subject to this control. "."
43 repeal articles 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61.
44 repeal of title V.
45 repeal articles 62, 63, 64, 65, 66, 67 and 68.
46 replacements articles 69 and 70, by the following: ' article 69-points that public roads cruzaren to level the railways, the company only will be obligated to maintain a practical service of signals to allow those who transit through them perceive the distance the proximity of a cross in functions. "
At those crossings which are certain in presidential decree referred to in the final paragraph of this article, the company shall be obliged to build barriers and guardaganados. Barriers are closed with anticipation due to the passage of the train, then opening to allow expedited transit by road.
Counting from the date of entry into force of this law construction, signalling, maintenance and conservation costs, repair and a new rail crossing guard will be in charge of the agency or institution requesting the construction of the crossing. Also shall charge the costs necessary to keep acting signals service indicated in the first paragraph, or a lifting when so provided by presidential decree.
Empower the President of the Republic by Supreme Decree issued through the Ministry of transport and telecommunications change the payroll of crosses at the level in which public roads cross the railway and which must comply with the obligations imposed in this article, mentioned in the Supreme Decree No. 500, from 1962, of the Ex-subsecretaria transport of the Ministry of economy Development and reconstruction, and its amendments.
Article 70.-Not to apply the obligations imposed by the first and second paragraphs of the preceding article, when the company keep functions automatic signalling devices. "."
47 repeal articles 71, 72, 73 and 75.
48.-Introducense the following amendments to article 76: to) in subsection first replaced the phrase "Department of transport rail of the Ministry of economy building and reconstruction" by "Ministry of transport and telecommunications".
(b) in the second subparagraph, delete the sentence "authorization of the Department of railway transport" and suprimense, also, the commas (,) which precede and follow this sentence.
(c) repeal of its third paragraph.
49 added, then of article 76, as article 77, the next new: "article 77.-the company shall be governed by the rules of this decree with force of law and, in not contemplated by him, by the rules governing open corporations." Therefore, you shall not apply, for any legal effect, the General or special provisions which govern or apply in the future to the State enterprises, unless new legislation expressly extended to the company.
Notwithstanding the provisions in the preceding paragraph, regarding this company will continue to govern standards referred to in article 11 of law No. 18.196. "."
50 replacements items 1 °, 2 °, 3 ° and 4 ° transient, by the following: "article 1.-the President of the Republic within the period of ten days following publication of this law, shall appoint the Chairman and other directors of the company, which will assume its functions once fully processed the respective Decree.
Article 2.-the current Director of railways and other executives of the company will continue to perform the duties of acting quality until such not appropriate, by directory, to your confirmation or is appointed to their respective replacements.
The Director and executives that are not confirmed in office by the Board of Directors and have the quality of employees of the company, shall be entitled to dispossession, compensation which establishes the code of work and to the present law, if they are applicable.
Article 3.-the provisions of the Decree Supreme N ° 1.157, of September 16, 1931, which fixed the final of the General Railways Act text shall not apply to the company or the companies constituting the exploitation or use of the railway with that, in accordance with the provisions of article 2 of the decree with force of law N ° 94 , as are contrary to the present Decree with force of law. "."
51 replace article 5 transitional, by the following: "article 5.-authorize the Treasury so that, within a period of three years, constitutes with the State Railways company one or more societies for the purposes set forth in article 2 of this decree with force of law and to sign up to a maximum of 1% of the capital of such companies which will be obliged to sell within a maximum period of two years from the date of incorporation of the respective companies. These societies constitute as corporations and all provisions relating to open corporations shall apply to them.
The establishment of partnerships between the company and the Treasury will be exempt of the tender procedure established in article 2 of this decree with force of law. This however, any transfer, sale, assignment or transfer of shares of the company or of the Treasury, in any of these companies, shall conform strictly to the rules of article 2 ° of this decree with force of law. "."