La autonomía privada en el caso del fideicomiso peruano

Abstract

Below, article 242 of the Ley General del Sistema Financiero y del Sistema de Seguros y Organica de la Superintendencia de Banca y Seguros (General Law of the Financial System and of the Insurance and Organic System of the Banking and Insurance Supervisor) is analyzed, which is the legal norm that regulates the Peruvian trust contract and it establishes the only people who can act as fiduciaries. The premise of the study is based on the fact that such legal norm would be violating the principle of private autonomy since it limits the freedom to contract by not allowing the free choice of the trustor over the fiduciary, a fact that is exposed in the future of the study. In order to explain the problems, a notion about trust is provided and then the regulatory framework applicable to the trust in the Peruvian legal system is explained which leads to identify the legal standards that qualify the trust as a valid contract. At the moment of reviewing the legal norms that serve to establish the trust contract as valid, the suitability of such is also analyzed. The study aims to contribute to the regulation of the trust where the principle of contractual private autonomy recognized by the Peruvian Constitution is respected in article 2, subsection 14; providing congruence to the Peruvian legal system.