V. Regarding the fourth objection, in essence, the appellant claims that Article 109 of Law No. 7732 is being given a scope it does not possess to support the sanction. He alleges that the second paragraph of the rule used as grounds for sanctioning is unclear regarding the manner in which the stockbroker must inform the investor, an indeterminacy that prevents stock market transaction operators from having clarity regarding their responsibilities and obligations. He further argues that the legislature provided for its regulation, which did not exist at the time of the facts, all of which prevents a sanction from being imposed. Regarding this, the Ad quem stated: “…From a detailed reading of the ruling under attack, it is derived with absolute clarity that the trial judge indeed adequately assessed each of his arguments regarding the text given by the legislature to said article, considerations which this Chamber fully endorses on appeal. However, it must also be pointed out that, contrary to what the appellant states, the cited rule, Article 109 of Law No. 7732, the Securities Market Regulatory Law, simply imposes a legal duty of information on participants in the stock market, but it is not, strictly speaking, the sanctioning rule applied to the specific case. (…) we are not dealing with a rule of a sanctioning nature, but quite the contrary, an order-establishing rule, insofar as it imposes a legal duty on a participant in the securities market. Regarding the issue, the A quo resolved that the rule under study requires market participants to be informed and duly trained, in order to understand the environment and provide the required financial information under the conditions established by the same article, that is, in a clear, correct, precise, sufficient, and timely manner. He reasoned that the issue of information is central, so it is impossible to interpret that the article is insufficient and that, therefore, the stockbroker is left free to choose the manner in which to provide advice or provide the necessary information. He stated that the second paragraph of Article 109 of Law No. 7732 begins by indicating: “Likewise, market participants must inform their clients about their economic or other ties that might compromise their impartiality. The Superintendency must issue the rules to enforce this provision”. Therefore, he explained, the word \"likewise\" implies that market participants must inform, in the manner described in the first paragraph, of ties of any other kind that might compromise their impartiality. For this reason, he did not share the arguments of the plaintiff, when asserting that the rule in no way qualifies the terms in which information must be provided to clients. This is because, although the provision establishes the duties of market participants in two paragraphs, for both cases the rule defined that said information must be provided in a clear, correct, precise, sufficient, and timely manner. He concludes that the wording of the article is sufficient to understand that it is not left to the stockbroker's discretion to choose the manner in which this information must be provided. This is a thesis shared by this Chamber, as set forth below. While it is true that the rule under study establishes the duty to regulate that provision, it is also true that the duty of information is derived from the provision, as indicated by the first-instance judge and confirmed by the superior court, that is, in a clear, correct, precise, sufficient, and timely manner, both the relevant information for adopting decisions and the economic or other ties that might compromise the stockbroker's impartiality. That being the case, it was the broker's duty, and consequently that of the brokerage house, to inform in those terms about the repurchase operations he maintained with his relatives and which involved the investor, a duty that was ultimately breached. The thesis put forward, that the wording of the rule prevents certainty regarding the information obligations incumbent upon him as a broker, shielding himself behind a lack of regulation of the provision—which is ultimately secondary, subordinate, and complementary to the Law—is not acceptable to this Chamber. That is, it is instrumental in nature, insofar as it is responsible for developing and specifying its content to allow or facilitate its implementation. Thus, in this Chamber's opinion, the rule is sufficient and, moreover, clear regarding the duty held by stockbrokers to inform their clients of everything of interest regarding the investments made. For this reason, the objection must be rejected.
VI. Due to the alleged lack of regulation, in the fifth section of the appeal, the appellant claims improper and erroneous application of Articles 157 and 158 of Law No. 7732, insofar as those provisions are used to sanction him for the conduct set forth in Article 109 ibidem. He reiterates that this second paragraph cannot have full effect without a regulation to develop it. For the A quem, provision 157(5) of Law No. 7732, in relation to ordinal 158(3) ibidem, are the rules that must be applied for sanctioning purposes in case of non-compliance with the provisions of Article 109 of the same Law. Therefore, it is appropriate to impose the established fine of 200 base salaries. Regarding the improper application of said rules, due to the alleged lack of regulation of the second paragraph of the aforementioned Article 109, the Court concluded: “…the defendant administration acted correctly by applying the fine of 200 base salaries to the plaintiff company, as the legal rule provided no other option, adhering to and enforcing the legislation in force. We could therefore conclude that, under the wording given to Article 109, only two possibilities exist when facing a possible breach by the person holding the legal duty to inform: First, that the violation of said normative imposition is proven and a fine of 200 salaries is applied; or second: that during the administrative procedure, the conformity of their actions with the duty imposed by the indicated Article 109 is proven, in which case, obviously, no sanction would be applied. Under the foregoing, whether the administration issued or did not issue the regulatory rules indicated by numeral 109 has little or no significance solely for the outcome of the proceeding, as the truth is that, given its wording, it is not a \"framework rule\" or \"model rule\" that necessarily requires its development through the issuance of a regulatory rule, and the alleged non-existence thereof in no way prevents the direct application of the legal rule. Article 109 establishes the legal duty to inform for participants in the stock market and also expressly provides the minimum conditions under which such duty shall be fulfilled, being self-sufficient to be applied by the legal operator, without neglecting that it would be absolutely illegal and potentially contrary to the right enshrined in the Constitution to disapply that normative provision for the specific case, which is currently in full force and effect. Consequently, the appellant's arguments are unfounded, and the decision must be rejected and confirmed, as is hereby ordered…”. This Chamber concurs with the Court's reasoning. Analyzing the rules whose improper application is alleged, numeral 157 states: Infractions, Sanctions, and their Procedure. Article 157.- Very serious infractions. The following shall incur very serious infractions: (...) 5.- Brokerage houses authorized to operate solely on behalf of third parties that acquire or transfer securities on their own account, brokerage houses or stockbrokers that fail to comply with the obligations established in Articles 109 or 112 of this Law, shall be sanctioned in accordance with the provisions of subsection 3) of Article 158 of this Law. (...). For its part, article 158 provides: Article 158.- Very serious infractions. The sanctions corresponding to very serious infractions shall be: (...) 3.- Fine of two hundred base salaries, as defined in Law no. 7337. Consequently, the appellant errs in his arguments, because precisely those rules establish the corresponding sanction for breach of the legal duty prescribed in Article 109 of the Law under study. Which, as developed in the previous considering, is in accordance with the law, even without having been regulated. Therefore, said rules are fully applicable to the specific case.
VII. To conclude, in the sixth grievance, he states that the imposed sanction is based on the fact that the stockbroker breached the second paragraph of provision 109 of Law No. 7732 because he did not provide information to the investor about the individuals involved in the transactions. He indicates that the first and second instance judges endorse this criterion and consider that the information was not provided and, consequently, the act is valid. Based on the foregoing, he alleges improper evidentiary assessment, claiming that articles 109, 157, and 158 ibidem have been infringed. He states that the only evidence used by the judges to declare the challenged act as valid and effective was the testimony of the stockbroker Nombre24831, who expressly stated the following: “I, to Mrs. Nombre2882, as I tell you, I had informed her, right, I informed her that I would be renewing repurchase operations with family clients and with employees of the Corporation” That is, the evidence is not correctly assessed, since he declared having informed about the involvement of his relatives and yet he is ultimately sanctioned for not doing so. In this Chamber's opinion, in accordance with the provisions of Article 608 of the Civil Procedure Code, issues not proposed or debated in a timely manner by the litigants cannot be the subject of the cassation appeal. Reviewing the case file, it is found that the allegation regarding the assessment of the rendered testimony was not challenged by the plaintiff in the appeal, which prevents this Chamber from considering it in this cassation appeal. Notwithstanding the foregoing, and for greater abundance, it is observed that for the first-instance judge, the agent's statement denoted uncertainty, as his answers were neither clear nor conclusive. This Collegiate Body considers that, despite the appellant's efforts to emphasize an excerpt of the statement where he indicates that he told the investor he would be conducting repurchase operations with relatives, he later states the following: “I don't remember if I told her specifically, and I must not have done so, I don't remember if I told her specifically, it's going to be with my father-in-law Nombre41094, it's going to be with Nombre55434, etcetera etcetera…”.\n\nIn accordance with this, this Chamber finds that the improper evidentiary assessment alleged is not observed; on the contrary, a correct assessment thereof by the first-instance judge is evident, insofar as the testimony reveals an imprecision capable of accepting as true the lack of information reported by the investor, an unavoidable legal duty of the broker, as ordered by the second paragraph of the aforementioned numeral 109 of Law No. 7732, and ultimately breached, for which reason the objection must be dismissed.\n\n**VIII.** Based on the foregoing, it is appropriate to declare the appeal without merit, with costs to be borne by the appellant, in accordance with numeral 611 of the Code of Civil Procedure (Código Procesal Civil).\n\n**POR TANTO**\n\nThe appeal is declared without merit, with costs to be borne by the party who filed it.\n\n**Luis Guillermo Rivas Loáiciga**\n\n**Román Solís Zelaya** **Óscar Eduardo González Camacho** \n\n**Nombre32003** **Silvia Consuelo Fernández Brenes** \n\nNombre165150\nNombre165150\n\nTeléfonos: (506) 2295-3658 o 2295-3659, correo electrónico ...36\n\nIII.\n\nRegarding the applicable statute of limitations norm. In order to address the substantive charges raised, it is necessary to clarify some concepts. The statute of limitations (prescripción) has been defined by this Chamber as the means to acquire a right or to free oneself from the fulfillment of an obligation by the passage of time. It is considered: “…a principle, a sanction, or a penalty against the holder of a right who, through negligence, creates a censurable situation of insecurity by reason of which the legislator prohibits, unless the interested party waives it, the possibility of its late exercise. It has been said within the doctrine that the statute of limitations finds its reason for being in a presumed tacit waiver of the right by its holder, who, through their inactivity, reveals their intention not to claim what belongs to them. Such a position has been correctly objected to, in that the statute of limitations cannot be considered either as a penalty for negligent action or as a tacit waiver, because if that were true, the party harmed by it should be allowed to demonstrate the non-existence of punishable guilt or the presumed intention of abandonment. Such criticism is consistent with our legal system” (Voto No. 244 of 15:17 on March 28, 2001). Entering into the merits of the case under study, the first two sections of the appeal allege an improper application of precept 198 of the LGAP and a failure to apply 208 of the same, violation of the principle of self-integration of administrative law and of articles 984 subsection a) of the Commercial Code and 30 of Law No. 7472, inasmuch as it was ordered that the prescriptive period was the four-year term established in the first norm, in contrast to the one-year term advocated by the remaining norms. Upon reviewing the record, it is verified that indeed the Ad quem, endorsing the thesis of the A quo, considered that in this specific case, in the absence of a special norm applicable to the matter, resolved that recourse should be made to the four-year term provided for in article 198 of the LGAP. This Chamber does not agree with the Tribunal's thesis. Although the normative omission requires that said term must be fixed through integration of the legal system, this must be carried out taking into consideration the nature of the relationship linking the SUGEVAL with the brokerage houses (puestos de bolsa) it regulates and the power being exercised. Thus, the Superintendency (Superintendencia) fulfills, on behalf of the State, an administrative function consisting of ensuring the transparency of the securities markets, the correct formation of prices therein, the protection of investors, and the dissemination of information necessary for the achievement of these purposes. For this, it has the power to impose sanctions on brokerage houses and their agents when there is a breach of these purposes. By virtue of the foregoing, in this Chamber's opinion, the underlying relationship between it and the brokerage houses presents a nature akin to that existing between the Administration (Administración) and the public servants through which it acts, and regarding whom it must inspect, control, and monitor that the provision of their functions conforms to what is prescribed in the legal system. Coupled with the above, the sanctioning power being analyzed is entirely compatible with that granted to the Administration in disciplinary matters, on the occasion of the exercise of an inspection and control power. By reason of the above, recourse must be made to the provisions of article 71 of the Organic Law of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República) (hereinafter LOCGR), which establishes a period of five years as the statute of limitations for the offense. To that effect, in what is relevant, the norm states: “The administrative responsibility of the public official for the infractions provided for in this Law and in the superior control and inspection legal system shall prescribe in accordance with the following rules: / a) In cases where the irregular fact is notorious, the responsibility shall prescribe in five years, counted from the occurrence of the fact. / b) In cases where the irregular fact is not notorious – understood as that fact which requires an inquiry or audit study to report its possible irregularity – the responsibility shall prescribe in five years, counted from the date on which the report on the respective inquiry or audit is brought to the attention of the senior official or the competent official to initiate the respective procedure. […]” It should be noted that, by virtue of articles 43 of the Law on Internal Control (Ley de Control Interno) (Law No. 8292) (sic) and 44 of the Law against Corruption and Illicit Enrichment (Law No. 4822), they refer to this norm, making it the general norm on the basis of which the statute of limitations in matters of inspection and the consequent possibility of sanctioning must be analyzed. For this reason, regarding the legal regime applicable to regulate the prescriptibility of the right in this type of situation, it is that of the transcribed precept 71, which establishes a term of five years, and not the four-year term contained in article 198 of the LGAP. Canon 9 of the LGAP, mentioned by the appellant, establishes the autonomy of administrative law with respect to other legal branches, and clearly indicates that, when faced with the need to integrate the administrative legal system, recourse must be made to the norms and principles of public law, such that there is a prevalence of administrative law over private law, the application of which would be, in any case, subsidiary and supplementary in the face of the insufficiency of the former. For the purpose of integrating gaps in the law, as indicated supra, the judge must observe, first of all, the nature of the legal relationship underlying the litigation with the aim of applying the most appropriate regulations. Indeed, the annulment is sought of sanctioning administrative acts through which SUGEVAL, exercising a sovereign power (potestad de imperio) granted by the Securities Market Regulatory Law, corrects the improper action of the brokerage house and its agents. In the absence within the cited normative framework of a precept establishing the statute of limitations, it is appropriate to apply the LOCGR, as indicated previously, resorting to the principles of plenitude and coherence of the legal system, and to the mechanisms of integration to resolve said gap. From the foregoing, and insofar as the cited article 198 is framed within the regime of patrimonial liability of the Administration concerning the claim for indemnification – as indicated by the appellant – and concerning the framework of annulment of sanctioning administrative acts, recourse must then be had, first, to the legal sources regulating similar aspects, and only in case of insufficiency, to those of private law. To that extent, among the different norms pertinent to the matter of prescription, the prescriptive space defined by the legal system for cases of state disciplinary power must be used as a mechanism of integration. Therefore, the rule that most immediately deals with regulating the statute of limitations for the sub-examine is not that of numeral 198 of the LGAP, but that contained in precept 71 of the LOCGR. It is worth clarifying that canon 208 of the LGAP, argued as being unapplied, also does not apply to the specific case. This is because it establishes the prescriptive period that the Administration has to initiate the administrative procedure against its agents, for the purpose of recovering what was paid by it. The provisions of 984 subsection a) of the Commercial Code and 30 of Law No. 7472 suffer the same fate, insofar as they are norms applicable to common law, which could be used only in the case of absolute absence of an administrative norm, according to the principle of self-integration of administrative law, as developed supra, a circumstance that does not occur in this specific case. In this manner, based on integrative mechanisms of Law, this Collegiate Body concludes that the applicable term is the five-year term indicated, because the genesis of this process corresponds to the deployment of a sovereign power of the Administration, which is the application of the sanctioning procedure for the breach of duties, an administrative procedure immersed in a special Law, which, due to the claimed gap, must conform to what is established in the LOCGR and specifically to canon 71, regarding the prescriptive period. Therefore, the complaint is not useful, because the correct term is that of five years and not the four-year term contained in article 198 of the LGAP, as developed supra, which does not adversely affect the plaintiff's right, since they sought the application of a one-year statute of limitations. Ergo, the complaint is not admissible, which leads to its rejection.”\n\n076-2010 of 1:00 p.m. on September 29, 2010, ordered: “The appealed judgment is affirmed.”
5. Nombre3640on Nombre5836 files a cassation appeal (recurso de casación) expressly stating the reasons on which it relies to refute the thesis of the lower court (Tribunal de instancia).
6. In the proceedings before this Chamber, the prescriptions of law have been observed. Substitute judge Silvia Consuelo Fernández Brenes participates in the decision of this matter.
Drafted by Judge Solís Zelaya
CONSIDERANDO
I. Nombre5832, filed a lawsuit against the Banco Central de Costa Rica (hereinafter BCCR), Superintendencia General de Valores (SUGEVAL) and Consejo Nacional de Supervisión del Sistema Financiera (CONASSIF) seeking that the judgment annul the agreement of CONASSIF, adopted in Article 16 of the minutes of session nº 666-2007 held on August 22, 2007, as well as the decision of SUGEVAL in official letter nº SHV-R-1344 of 12:00 p.m. on December 5, 2005, through which Nombre1859 is sanctioned with a fine of two hundred base salaries, an amount totaling ¢16,840,000.00. She explains that investor Nombre58520 filed a complaint against Nombre24831 in his capacity as stockbroker (corredor de bolsa) and Nombre1859, alleging various irregularities. By reason of the foregoing, SUGEVAL initiated a disciplinary proceeding against the broker and the brokerage house (Puesto de Bolsa), which concluded with resolution SGV-R-1344 of December 5, 2005, sanctioning the plaintiff. Later, CONASSIF, in Article 16 of the minutes of session 666-2007 held on August 22, 2007, when hearing on appeal (alzada) the appeal (recurso de apelación) filed, confirmed the sanction. The representation of the defendant party answered outside the legal deadline granted, for which reason it was declared in default (rebeldía) and consequently the facts of the lawsuit were deemed answered in the affirmative. The Court of First Instance declared the lawsuit inadmissible in all its aspects and ruled without special condemnation in costs (costas). The Tribunal affirmed the decision. The special judicial attorney-in-fact (apoderado especial judicial) of the plaintiff party appears before this Chamber raising direct and indirect substantive violations, which he divides into 6 sections.
II. First: he argues, improper application of Article 198 of the Ley General de Administración Pública (hereinafter LGAP) and failure to apply precept 208 ibid. He states that the norm improperly applied by the Tribunal was used to reject the statute of limitations (prescripción) defense raised. He transcribes part of the judges' reasoning, who essentially considered that given the absence of a specific norm on the statute of limitations in securities matters, the precept that was most suitable was Article 198 of the LGAP. He deems that the judges erred, since according to the principle of self-integration of administrative law, embodied in canon 9 of the LGAP, the provision that must be used is canon 208 of that Law. He explains that Article 198 is located in Section Four – Common Liability Regime – of Title Seven – On the Liability of the Administration and the Public Servant. He alleges, upon reviewing the title and its sections, it is concluded that it deals with the patrimonial liability of the Public Administration and the public servant, in relation to damages (daños y perjuicios) caused to third persons. That is, that regulation is aimed at protecting the patrimonial interests of the administered persons. He claims that this title refers to damage and indemnification, not to disciplinary or sanctioning liability, which is the case under study. From this it follows, he says, that the application of that norm is incompatible with what is intended, since they are different matters because, on one hand, there is patrimonial liability and the statute of limitations for demanding indemnification, and on the other, disciplinary liability and the statute of limitations for imposing sanctions. Now then, he highlights, if Title Seven of the LGAP, chosen by the judges, were correct, Article 208 should have been applied in accordance with the principle of the most favorable norm, because said provision is less burdensome by establishing a one-year statute of limitations and that would have benefited the sanctioned parties. Second: he refers to the violation of Articles 9 of the LGAP and 984 subsection a) of the Código de Comercio and 30 of the Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor (Law nº 7472). He begins his objection by transcribing precept 9 of the LGAP, and explains that this norm contains the principle of self-integration of administrative law, which states that one must first examine the norm in Administrative Law, and if there is no precept applicable to the case, the proper course is to seek it in Private Law. He points out that the intent is to find the closest regulation containing statute-of-limitations periods for sanctioning the infractions provided for in the Ley Reguladora del Mercado de Valores (hereinafter Law nº 7732), in relation to brokerage houses and brokers. He claims that the judges did not carry out that exercise, thus violating that norm. They did not exhaust the search for the provision, nor did they observe the implicit criteria in it regarding relatedness. He points out that the canon on the statute of limitations for the right to sanction cases such as the one under study must contain elements close to the subject matter, for, he alleges, this is not about common Administrative Law, but rather sanctioning Administrative Law, not necessarily immersed in the former, which is why he deems it necessary to consider norms of Private Law. It is the appellant's (recurrente) criterion that Article 984 subsection a) of the Código de Comercio could have been applied, which establishes the one-year statute of limitations for claims for defects in things sold with a guarantee of proper functioning and the liabilities of administrators, managers, directors, and other members of company management. If said precept were not applicable, he states, provision 30 of Law nº 7472 should have been used. Norms that he claims were violated due to failure to apply them. Third: he claims, improper interpretation and application of Article 198 of the LGAP, regarding the commencement of the statute-of-limitations period. He transcribes part of the judges' reasoning regarding the computation of the period, who indicated essentially that it begins from the commission of the unlawful acts, unless one is in the presence of acts with a continued effect, in which case the term will begin to run from when their effects cease. In the judges' opinion, the reported facts cover a broad time span, since the stock market operations carried out were of continued effect until their maturity, the first of them having been executed on February 19, 1998, with a maturity date of October 9, 2006. To that extent, it is from the latter date that the four-year period begins to run for the affected party to be able to resort to the Administration. The foregoing, the appellant indicates, constitutes a serious error, because the relevant facts for sanctioning are not in themselves the investments, nor the poor technical advice that the complainant may have received from the stockbroker agent, but rather the cause of the sanction was, according to the appellant, the failure to inform the investor about the persons who participated in the stock transactions as family members or dependents of the company. Which, he says, has nothing to do with the negative or final result of the investments. Therefore, by not understanding it thus, he alleges, there is an incorrect assessment of the evidence, specifically of the administrative act and consequently an error of fact in its appreciation because it starts from a non-existent assumption in the content of the act. That is, he indicates, the error of fact committed is to consider a cause different from the one the Administration used to sanction the brokerage house. He claims that the judges did not understand that the computation of the statute-of-limitations period starts from the occurrence of the facts and not afterwards. It is then an error in the interpretation of the norms on the statute-of-limitations period that harms her, since she has been subjected to a process and a sanction that should not have existed, the Administration's right being time-barred (prescrito). Fourth: he argues that the second paragraph of Article 109 of Law nº 7732 was improperly interpreted and applied. He states that the Tribunal correctly interprets that norm when it points out that it does not have a sanctioning character, but rather that one is faced with an ordering norm to the extent that it imposes a legal duty on the stockbroker. He claims that the duty to inform the investor is implicit in the broker's functions. The complaint of investor Nombre2882 arose because the agent acquired for her bonds of the Argentine debt, Global 06, financed through repurchase operations in the month of February 1998, which constituted serious risks that were not warned about by the broker, so there was a lack of guidance and information on the matter. He says that the petition or claim of the complainant was that a disciplinary sanctioning proceeding be initiated to determine the violation of the duties of diligence in investment advice, in the provision of information on the securities and the operating mechanisms used, as well as the violation of the principle of investor priority and protection. He points out that at no time did the complaint consist of the fact that the operations were carried out with family members or with personnel of the same brokerage house, and that those actions may have caused her harm or damages (daños o perjuicios). The complaint expresses concern about the price variations of the bonds in the international market, not about who participated in the operations. He explains that the complaint arose because the investor learned that in the international market the acquired bonds had lost value, so she considered that the broker did not give her adequate information and correct guidance on her investment. The statement of charges (imputación de cargos) made by SUGEVAL, he says, is precisely regarding the execution of investments without the investor's consent and that she was not warned about the securities being acquired and about the price variations in the international market that were affecting her. He points out that the complaint of June 11, 2002, formally notified by SUGEVAL on December 18 of that year, was dismissed, but not so regarding the expansion of facts of the complaint, which is what motivated the sanction established in resolution SGV-R-1344 of December 5, 2005. Said expansion refers to the participation of Nombre55434, who served as manager of Nombre1859 S.A. in some repurchase operations, Nombre5688 and Nombre41094, wife and father-in-law of the stockbroker agent respectively, which was never informed to her, she claimed. In accordance with the foregoing, he states that the interpretation of the second paragraph of Article 109 of Law nº 7732 is erroneous, since it is being given a scope that it does not have to support the sanction. The norm at no time qualifies in what terms the market participant must provide information to its clients, as the first paragraph details. He establishes that the second paragraph is directed at informing in cases where there are economic or other ties that could compromise the impartiality of the participant, what is doctrinally known as a conflict of interest. Due to the indeterminate nature of the concept, he states, the legislator ordered it to be regulated; however, at the time of the facts, there was no regulation expanding the concept. Furthermore, the infraction attributed is not related to the losses that the investor could suffer. In such a way that the only thing that could have affected her is the lack of timely information about the persons who participated in the transactions. But neither in her complaint nor subsequently in the expansion of facts is reference made to this conduct being linked to the losses in bond prices in the international market or that it caused her harm or damages of another nature. It is a matter of a duty to inform, which in terms of the norm is not clear, since its scopes are not defined and, above all, he emphasizes, the manner in which it must be provided is not specified. He concludes that the indeterminacy of the precept and its scopes prevents the operators of stock market transactions from having clarity regarding responsibilities and obligations toward clients. Fifth: improper and erroneous application of Articles 157 and 158 of Law nº 7732 due to incorrect interpretation of canon 109 ibid. He indicates, in his opinion, the sanctions provided for in those norms in relation to the conducts contemplated in Article 109 are impossible to apply by virtue of the fact that they are conditional on the existence of the respective regulation, which was ordered in the second paragraph. That is, he points out, that second paragraph cannot have full effects without a regulation to develop it. By applying those norms, the judges incurred an incorrect interpretation and improper application, since the administrative acts that sanctioned the brokerage house based on those norms cannot be considered correct. Sixth: Error of fact in the assessment of the evidence. He alleges that the sanction imposed by SUGEVAL is based on the fact that the stockbroker agent breached the second paragraph of Article 109 of Law nº 7732, by failing to provide information to the investor about the persons involved in the transactions. The judges endorse the criterion and consider that the act is valid and effective. However, he points out that from the same evidence it can be determined that the broker did provide the information by indicating in his statement that he had informed the investor of the renewal of the repurchase operations with family-member clients and employees of the corporation. He emphasizes that the only evidence used by the judges of first and second instance was the statement provided by the stockbroker agent and from there the opinion is extracted that he did not provide the information, even though in his statement he says the contrary. There exists, he says, an error of fact in the assessment of this single piece of evidence, since a conclusion contrary to what was said is reached and with it very serious consequences, such as that the act is in accordance with law (apegado a derecho) pursuant to Articles 109, 157 and 158 of Law nº 7732, norms that he claims were infringed based on that error of fact. He also claims canons 158 and 166 of the LGAP were infringed since there is a serious defect (vicio grave) in the content of the act, which was not appreciated by the judges, in the sense that to sanction the brokerage house, the broker's own statement was used as the basis, extracting from it that he had not informed about the family and employment relationship of the persons who participated in the stock transactions, when it is evident that the agent did inform the investor in a timely manner.
III. Regarding the applicable statute-of-limitations norm. In order to address the substantive charges raised, it is appropriate to clarify some concepts. The statute of limitations (prescripción) has been defined by this Chamber as the means to acquire a right or to be released from compliance with an obligation by the passage of time. It is considered: “…a principle, a sanction or punishment against the holder of a right who, through negligence, creates a censurable situation of uncertainty by reason of which the legislator bars, except for the waiver of the interested party, the possibility of its belated exercise. It has been said within doctrine that the statute of limitations finds its reason for being in a presumed tacit waiver of the right by its holder, who through inactivity conveys their intention not to claim what is owed to them. This position has been objected to, correctly, because the statute of limitations cannot be considered either as a punishment for negligent conduct or as a tacit waiver, for if that were true, the party harmed by it should be allowed to demonstrate the non-existence of punishable fault or of the presumed intention of abandonment. Said criticism agrees with our legal system” (Decision nº 244 of 3:17 p.m. on March 28, 2001). Getting to the merits of the case under study, in the first two sections of the appeal an improper application of precept 198 of the LGAP and failure to apply Article 208 ibid, violation of the principle of self-integration of administrative law and of Articles 984 subsection a) of the Código de Comercio and 30 of Law nº 7472 are claimed, insofar as it was ordered that the statute-of-limitations period was the four-year period established in the first regulation, in contrast to the one-year period advocated by the rest of the norms. Having examined the record of proceedings, it is verified that indeed the Ad quem, adopting the thesis of the A quo, considered that in this case, given the absence of a special norm applicable to the subject matter, it decided that the four-year period provided for in Article 198 of the LGAP must be resorted to. This Chamber does not agree with the Tribunal's thesis. Although the normative omission makes it necessary for said period to be fixed through integration of the legal system, this must be carried out taking into consideration the nature of the relationship linking SUGEVAL with the brokerage houses it regulates and the power being exercised. Thus, the Superintendency performs, on behalf of the State, an administrative function consisting of ensuring transparency in the securities markets, the correct formation of prices therein, the protection of investors, and the dissemination of the information necessary for the achievement of these purposes. For this purpose, it has the power (potestad) to impose sanctions on brokerage houses and their agents when these purposes are breached. By virtue of the foregoing, in this Chamber's opinion, the underlying relationship between it and the brokerage houses presents a nature akin to that existing between the Administration and the public servants through whom it acts, and with respect to whom it must supervise, control, and monitor that the performance of their functions is in accordance with what is prescribed in the legal system. In addition to the foregoing, the sanctioning power being analyzed is entirely compatible with that granted to the Administration in disciplinary matters, on the occasion of the exercise of a power of supervision and control. By reason of the foregoing, one must resort to the provisions of Article 71 of the Ley Orgánica de la Contraloría General de la República (hereinafter LOCGR), which establishes a period of five years as the statute of limitations for the infraction. To that effect, in what is relevant, the norm states: “The administrative liability of the public official for the infractions provided for in this Law and in the superior control and supervision system shall be time-barred in accordance with the following rules: / a) In cases where the irregular fact is notorious, liability shall be time-barred in five years, counted from the occurrence of the fact. / b) In cases where the irregular fact is not notorious – this being understood as that fact which requires an investigation or an audit study to report on its possible irregularity – liability shall be time-barred in five years, counted from the date on which the report on the respective investigation or audit is brought to the knowledge of the superior or the official competent to initiate the respective proceeding. […]” It is worth noting that, by virtue of Articles 43 of the Ley de Control Interno (Law no. 8292) and 44 of the Ley contra la Corrupción y Enriquecimiento Ilícito (Law no. 4822), they refer to this norm, which makes it the general norm on the basis of which the statute of limitations in supervision matters and the consequent sanctioning possibility must be analyzed. For this reason, with regard to the legal regime applicable to regulating the prescriptibility of the right in this type of situation, it is that of precept 71 transcribed, which establishes a five-year period and not the four-year period contained in Article 198 of the LGAP. Canon 9 of the LGAP, mentioned by the appellant, establishes the autonomy of administrative law with respect to other legal branches, and clearly indicates that, given the need to integrate the administrative legal system, one must resort to the norms and principles of public law, in such a way that there is a prevalence of administrative law over private law, whose application would be, in any case, subsidiary and supplementary in the event of the insufficiency of the former. For purposes of integrating gaps in the law, as indicated supra, the judge must observe, first, the nature of the legal relationship underlying the dispute (litis) in order to apply the regulation most closely suited. Indeed, the annulment is sought of sanctioning administrative acts through which SUGEVAL, exercising a power of imperium granted by the Ley Reguladora del Mercado de Valores, corrects the improper conduct of the brokerage house and its agents. Given the absence within the cited regulatory framework of a precept establishing the statute of limitations, it is proper to apply the LOCGR, as indicated above, resorting to the principles of plenitude and coherence of the legal system, and to the mechanisms of integration to resolve said gap. For the foregoing reasons, and to the extent the cited Article 198 is framed within the patrimonial liability regime of the Administration regarding the claim for indemnification – as the appellant indicates – and since this is the framework of the annulment of sanctioning administrative acts, one must turn, then, first to the legal sources regulating similar aspects, and only in case of insufficiency, to those of private law. To that extent, of the various norms pertaining to the matter of the statute of limitations, the prescriptive space that the legal system defines for cases of state disciplinary power must be used as an integration mechanism. Therefore, the rule that most immediately deals with regulating the statute of limitations for the matter under examination is not that of numeral 198 of the LGAP but that contained in precept 71 of the LOCGR. It is worth clarifying that canon 208 of the LGAP, claimed to have been not applied, is also inapplicable to the specific case. This is because it establishes the statute-of-limitations period that the Administration has to initiate the administrative proceeding against its agents, for the purpose of recovering what was paid by it. The same fate awaits provisions 984 subsection a) of the Código de Comercio and 30 of Law nº 7472, insofar as they are norms applicable to common law, which could be used only in case of absolute absence of an administrative norm, in accordance with the principle of self-integration of administrative law, as developed supra, a situation that does not occur in this case.\n\nThus, based on integrative mechanisms of Law, this Collegiate Body concludes that the applicable period is the five-year period indicated, as the genesis of this process corresponds to the deployment of a power of authority of the Administration, which is the application of the sanctioning procedure for the breach of duties, an administrative procedure immersed in a special Law, which due to the claimed gap must conform to the provisions of the LOCGR and specifically to canon 71, regarding the statute of limitations period. Therefore, the objection is not valid, because the correct period is five years and not the four years contained in article 198 of the LGAP, as developed supra, which does not adversely affect the plaintiff's right, since he sought the application of a one-year statute of limitations. Ergo, the objection is not admissible, which leads to its rejection.\n\n**IV.** Regarding the moment from which the computation of the statute of limitations period must begin, the Tribunal resolved: *\"…in the opinion of this Chamber it must be from the commission of the reported illicit acts, except, of course, when we are in the presence of a continuous effects action, as occurs in the case at hand, a scenario in which the fatal term will begin to run upon the cessation of the effects of the act on the affected subject, in accordance with reiterated national jurisprudence. In the specific case, the reported facts covered a long time span, since the stock market operations carried out had continuous effects until their expiration, the first of them that was the subject of a complaint by Mrs. Nombre2882—namely, the oldest one that concerns us—was executed on February 19, 1998, and had an expiration date of October 9, 2006, remaining fully in force in the meantime. Therefore, it was as of October 9, 2006, that the four-year period began to run for the affected party to appeal to the administration; however, from the case file it is evident that Mrs. Nombre2882 did so well in advance, while the stock market operations executed with her assets were still having effects, since the date of the complaint of the facts that gave rise to the administrative sanctioning procedure that concluded with the imposition of the fine referred to the plaintiff was June 11, 2002, when undoubtedly the period for Mrs. Nombre2882 to resort to administrative instances claiming what she considered irregular—and which ultimately turned out to be so—had not yet expired…\"*. Regarding the moment from which the computation of the statute of limitations must begin, the First Chamber has stated on other occasions: \"*The phenomenon of civil liability is not simple, but compound. Its existence requires conduct and damage, between which there is a causal relationship. It is frequent that conduct and damage arise simultaneously, but, at other times, it often happens that the damage is produced or becomes evident some time after the conduct occurred. Moreover, on other occasions part of the damage is produced immediately and another part sometime later*\". (Resolution no. 29 of 14 hours 30 minutes of May 14, 1993. In the same sense, vote no. 606 of 16 hours 10 minutes of September 7, 2002). Consequently, the damage can become evident when the fact occurred if it is notorious in accordance with what is outlined in article 71 subsection a) of the LOCGR, or some time after it occurred, as indicated by the ruling cited. Therefore, the prescriptive period for filing the claim can begin: a) at the moment the fact occurred, if it is notorious, b) when the Administration becomes aware of it, or of the generating event, or from the moment the victim is in a position to invoke their right. Considering that in the case under examination, the fact is not notorious, the appellant's argument that the statute of limitations begins once it occurred and not afterwards is not correct, especially taking into account that this is a fact with continuous effects, where the period begins, as the Tribunal resolved, and with which this Chamber agrees, when its effects cease. In this regard, the appellant party indicates that the judges forget that the relevant facts for sanctioning are not the investments, but the lack of information about them. In the opinion of this Chamber, both scenarios cannot be separated for the purposes of computing the statute of limitations period. The sanctioned lack of information was maintained during the time the stock market operation lasted. Thus, upon the cessation of the investment, the alleged lack of information about it also ceases, and it is from that moment that the prescriptive period begins to run. In the sub examine the complaint of such fact was filed prior to the expiration of the investment, making the occurrence of the fatal period impossible, considering what was indicated supra, that the lack of information was maintained during the investment. For the reasons stated, the statute of limitations period has not elapsed, so the grievance must be rejected.\n\n**V.** Regarding the fourth objection, in essence, the appellant accuses that canon 109 of Law No. 7732 is being given a scope it does not possess, to support the sanction. He alleges that the second paragraph of the norm that served as a basis to sanction is not clear regarding the manner in which the stockbroker must inform the investor, an indeterminacy that prevents operators of stock market transactions from having clarity regarding their responsibilities and obligations. Besides, the legislator provided for its regulation, which at the time of the facts did not exist, all of which prevents a sanction from being established. In this regard, the Ad quem stated: *\"…From a detailed reading of the appealed judgment, it is derived with crystalline clarity that the trial judge indeed adequately evaluated each of her arguments in relation to the text given by the legislator to said numeral, considerations which this Chamber on appeal fully endorses. However, it must also be noted that contrary to what the appellant indicated, the cited norm, article 109 of Law No. 7732 Regulating Law of the Securities Market, simply imposes a legal duty of information on interveners in the stock market, but it is not properly the sanctioning norm applied to the specific case. (…) we are not before a norm of a sanctioning nature, but quite the opposite, an ordering norm, insofar as it imposes a legal duty on a subject participating in the securities market.*\" Regarding the topic, the A quo resolved that the norm under study requires market participants to be informed and duly trained, in order to understand the environment and provide the required financial information, under the conditions that the same article establishes, that is, in a clear, correct, precise, sufficient, and timely manner. It substantiated that the issue of information is core, so it is not possible to interpret that the canon is insufficient and that therefore the stock agent is left free to choose how to provide advice or the necessary information. It stated that the second paragraph of article 109 of Law No. 7732 begins by indicating: \"*Likewise, market participants must inform their clients about their economic or any other type of ties that may compromise their impartiality. The Superintendency must issue the norms to make this provision effective*\". Therefore, it explained, the word likewise implies that market participants must inform, in the manner indicated in the first paragraph, of ties of any other nature that could compromise their impartiality. For this reason, it did not share the arguments of the plaintiff party, by affirming that at no point does the norm qualify in what terms they must provide information to their clients. Therefore, even though the precept establishes the duties of market participants in this regard in two paragraphs, for both cases the norm defined that said information must be provided in a clear, correct, precise, sufficient, and timely manner. It concludes that the letter of the article is sufficient to understand that it is not left to the discretion of the stock agent to choose the manner in which they must provide that information. A thesis this Chamber shares, as set forth below. While it is true that the norm under study establishes the duty to regulate that provision, it is also true that the duty of information is extracted from the precept, as the first instance judge indicates and the superior confirms, that is, in a clear, correct, precise, sufficient, and timely manner, both for information relevant to making decisions and for economic or any other type of ties that may compromise the stock agent's impartiality. This being the case, it was the duty of the broker and consequently of the brokerage firm, to inform in those terms about the repurchase operations they maintained with their family members and that involved the investor, a duty that was ultimately breached. This Chamber does not accept the thesis presented, that the wording of the norm prevents having certainty about the information obligations that correspond to them as an agent, shielding themselves in a lack of regulation of the provision, which in the end is of a secondary, subordinate, and complementary nature in relation to the Law. That is, it is of an instrumental nature, insofar as it is responsible for developing and specifying its content to allow or facilitate its implementation. Thus, in the opinion of this Chamber, the norm is sufficient and also clear regarding the duty held by stockbrokers to inform their clients of everything of interest regarding the investments they make. For which reason the objection must be rejected.\n\n**VI.** Due to the alleged lack of regulation, in the fifth section of the appeal, the appellant accuses improper and erroneous application of articles 157 and 158 of Law No. 7732, insofar as through those provisions, he is sanctioned for the conduct contemplated in canon 109 ibidem. He reiterates that this second paragraph cannot have full effects without a regulation that develops it. For the A quem, precept 157 subsection 5) of Law No. 7732, in relation to ordinal 158 subsection 3 ibidem, are the norms that apply for the purposes of the sanction in case of non-compliance with the provisions of canon 109 of the same Law. Therefore, it is appropriate to impose the established fine of 200 base salaries. Regarding the improper application of said norms, due to the alleged lack of regulation of the second paragraph of the aforementioned article 109, the Tribunal concluded: *\"...the defendant administration did well in applying the fine of 200 base salaries to the plaintiff company, as the legal norm did not offer it another option, adhering to and enforcing the legislation in force. We could then conclude that under the wording given to article 109, there are only two possibilities when facing a potential breach by whoever has the legal duty to inform: First, that the violation of said normative imposition is demonstrated and a fine of 200 salaries is applied; or second: that in the course of the administrative procedure, the adequacy of their action to the duty imposed by article 109 indicated is demonstrated, in which case, obviously no sanction would be applied. Based on the foregoing, whether or not the administration issued the regulatory norms that numeral 109 indicates has little or no importance solely for the purposes of the outcome of the process, as the truth is that in light of its wording, the referred norm is not a 'framework norm' or 'standard norm' that necessarily requires its development through the issuance of a regulatory norm, and the alleged non-existence of it in no way prevents the direct application of the legal norm. Article 109 establishes the legal duty to inform for interveners in the stock market and also expressly contemplates the minimum conditions within which said duty shall be fulfilled, sufficing itself to be applied by the legal operator, without neglecting that it would be absolutely illegal and eventually contrary to constitutional law to disapply that normative provision for the specific case, which is currently in full force. Consequently, the appellant's arguments are incorrect, and the decision must be rejected and the ruling confirmed, as is hereby ordered…\"*. This Chamber agrees with the Tribunal's reasoning. Analyzing the norms whose improper application is alleged, numeral 157 reads: Infractions, Sanctions and their Procedure. Article 157.- Very serious infractions. Shall incur in very serious infractions: (...) 5.- Brokerage firms authorized to operate solely on behalf of third parties that acquire or transfer securities on their own account, brokerage firms or stock agents that breach the obligations established in articles 109 or 112 of this Law, shall be sanctioned in accordance with the provisions of subsection 3) of article 158 of this Law. (...). For its part, canon 158 provides: Article 158.- Very serious infractions. The sanctions corresponding to very serious infractions shall be: (...) 3.- Fine of two hundred base salaries, as defined in Law no. 7337. Consequently, the appellant errs in his arguments, because precisely those norms establish the corresponding sanction before the breach of the legal duty prescribed in article 109 of the Law under study. Which, as developed in the preceding considering, is in accordance with the law, even without having been regulated. Therefore, said norms are fully applicable to the specific case.\n\n**VII.** To conclude, in the sixth grievance, he relates that the imposed sanction is based on the fact that the stock agent breached the second paragraph of precept 109 of Law No. 7732, because he did not provide information to the investor about the persons who were involved in the transactions. He indicates that the judges of first and second instance endorse that criterion and consider that the information was not provided, and consequently the act is valid. Based on the foregoing, he accuses improper evidentiary assessment, thus claiming canons 109, 157, and 158 ibidem as violated. He refers that the only evidence used by the judges to declare the appealed act as valid and effective was the deposition of stockbroker Nombre24831, who expressly stated the following: \"*I, to Mrs. Nombre2882, as I told you, I had informed her right, I informed her that I would be renewing repurchase operations with family clients and with employees of the Corporation*\". That is, the evidence is not correctly assessed, as he declared having informed about the intervention of his family members and he is ultimately sanctioned for not doing so. In the opinion of this Chamber, in accordance with the provisions of article 608 of the Civil Procedure Code, matters not proposed or debated in a timely manner by the litigants may not be the subject of a cassation appeal. Reviewing the case file, it is obtained that the argument regarding the assessment of the testimony given was not challenged by the plaintiff party in the appeal, which bars this Chamber from hearing it in the present cassation appeal. Without prejudice to the foregoing and for the sake of clarity, it is observed that for the trial judge, the agent's statement denoted indeterminacy, as his answers were neither clear nor conclusive. This Collegiate Body considers, despite the appellant's effort to emphasize an excerpt of the statement where he indicates that he told the investor he would be doing repurchase operations with family members, he subsequently states the following: \"*I don't remember if I told her specifically and I must not have done so, I don't remember if I told her specifically, it will be with my father-in-law Nombre41094, it will be with Nombre55434, etcetera etcetera*…\".\n\nIn accordance with this, this Chamber finds that the alleged improper evaluation of evidence is not evident; on the contrary, a correct evaluation thereof by the trial judge is noted, inasmuch as the statement reveals an imprecision capable of establishing as true the lack of information reported by the investor, an unavoidable legal duty of the broker, as mandated by the second paragraph of the above-cited numeral 109 of Ley nº 7732 and ultimately breached, for which reason the objection must be dismissed.\n\n**VIII.** Based on the foregoing, it is appropriate to declare the appeal without merit, with costs to be borne by the appellant, in accordance with numeral 611 of the Code of Civil Procedure (Código Procesal Civil).\n\n**POR TANTO**\n\nThe appeal is declared without merit, with costs to be borne by the party who filed it.\n\n**Luis Guillermo Rivas Loáiciga**\n\n**Román Solís Zelaya** **Óscar Eduardo González Camacho**\n\n**Nombre32003** **Silvia Consuelo Fernández Brenes**\n\nNombre165150\nNombre165150\n\nTeléfonos: (506) 2295-3658 o 2295-3659, correo electrónico ...36" }