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8 J. Comp. L. 105 (2013-2014)
The Rule Pay First, Litigate Later or Solve et Repete in Chilean Law

handle is hein.journals/jrnatila8 and id is 111 raw text is: S LEWIS

The Rule Pay First, Litigate Later or
Solve et Repete in Chilean Law
SEBASTIAN LEWIS*
The rule pay first, litigate later requires that a person against whom a tax or an
administrative fine has been assessed must first pay the entire amount, or a part thereof,
in order to challenge the tax or the fine in a court.' In continental legal systems this rule
is also known as solve et repete, a Latin expression which means in English pay and then
retrieve. The rule is contained in Article XIII, section 32, of the Constitution of the State
of California:
No legal or equitable process shall issue in any proceeding in any court against
this State or any officer thereof to prevent or enjoin the collection of any tax. After
paynent of a tax claimed to be illegal, an action mnay be maintained to recover the tax paid,
with interest, in such manner as may be provided by the Legislature (emphasis
added).
This rule, which used to have a significant part in Italian law, just as in California, was
designed to protect the public treasury against frivolous challenges of taxes. The Italian
Constitutional Court, however, declared that the rule violated the fundamental right
to seek legal protection.2 The rule at one time could be found in Spanish law, where it
extended to challenges of taxes and administrative fines. Spanish legal scholars succeeded
in convincing courts of the unconstitutionality of the rule because in the contexts of
taxation and administrative fines the rule imposed a limitation upon the individual right
to seek legal protection against unlawful procedures, contestable fact-finding, and the
legality of the law itself or its particular application.' For the same reasons, the Supreme
Graduate in Law summa cum laude, Universidad de los Andes (Santiago, Chile). E-mail: slewis@)miuandes.
cl. The translations from Spanish herein are not always literal, but they are faithful and precise. The author
would like to thank Michael Vacca, Benjamin Shoemaker and Jeffrey Shafer for their valuable contributions to
this article.
I See, for example, Carlos M. Giuliani Fonrouge, Derecho Financro (1977), II, p. 729; Hector Villegas, Curso de
Finan as, Derecho Financiero y Tributario (1994), p. 458; Fernando Garrido Falla, Tratado de Derecho Administratio
(1994), I, p. 515; Enrique Silva Cimma, Derecho Administrativo chilno y comparado. Actos, cotratos y bienes (1995),
p. 104; Eduardo Soto Kloss, Solve et repete. Notas sobre un resabio absolutista en el Estado constitucional de
Derecho, lus Publcum , VI (2001), p. 82; Cristian J. Billardi, Solve et repete: crilica a su vigencia juridica en el
sistema juridico argenitino (2006), p. 104; and Juan Carlos Ferrada B6rquez, Las potestades v privilegios de la
Administraci6n Publica en el regimen administrativo chileno, Revista de Der-echo, XX, 2 (2007), p. 84.
Decision 21 (1961).
In Spain, the rule pay first, litigate later, or solve et repete, at first was applied in a controversy when a
statutory provision so required. Later, Spanish courts began to regard this rule to be a common law rule
applicable to every controversy even when there was no statutory provision directing its application. That
innovation provoked a reaction from Spanish legal scholars, who vigorously criticized this new approach. On
JCL 8:1       105

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