La costumbre mercantil como prueba en procesos judiciales: Desafíos y propuesta de certificación registral para la garantía del debido proceso.

Abstract

In the Commercial Code, a debate arises between the strict and categorical final paragraph of Article 6, which contradicts the requirement of sufficient justification established by the Constitutional Court. The Court observes that judicial officers have the obligation to fully justify their decisions; however, this justification is often inadequate due to a lack of objective evidence and deviates from proper evidentiary assessment by considering only subjective contexts, thus limiting reasoning to premises weakened by the very law itself. Therefore, the author presents not only the problem but also its solution, which is relevant to the national context, proposing a reform of the substantive law. This legal essay, based on research, aims to demonstrate to the reader the challenges in proving commercial custom, employing a qualitative method with both explanatory and descriptive scope. Significant results were obtained by highlighting the regulatory deficiencies that shape commercial custom. First, the theory and doctrine established that the evidence examined by the judge must include testimonies, documents, and circumstantial evidence. The analysis of the relevant article also revealed potential vagueness in judicial decisions and ambiguities in testimonies. Second, rulings from the former Supreme Court (now the National Court of Justice) established the criterion that customs apply to public entities, that if proven by a judgment, witnesses are unnecessary, that they are binding even if the contrary has been agreed upon, and that they are admitted by mutual agreement. The Constitutional Court provided the latest interpretive criteria regarding sufficient justification, as did the Inter-American Court of Human Rights. Ultimately, the work concluded that commercial custom must be assessed by the judicial officer using testimonies, evidence, and circumstantial evidence, not just testimonies, to achieve the minimum standard required by the Constitutional Court, which urgently necessitates its reform.