LA SIMULACIÓN CONTRACTUAL COMO MECANISMO PARA EL OCULTAMIENTO DE ACTOS ILÍCITOS EN SEDE NOTARIAL

Abstract

A contract is used as a legal instrument that, when simulated, appears to be legitimate to third parties, but it’s true purpose is to conceal the parties’ actual intent, producing legal effects that, under the principle of good faith, amount to deception and concealment of potential unlawful acts. The role of the Notary, upon the establishment of a contractual relationship, is to serve as a guarantor of legality and legal certainty; however, the public faith associated with the Notary does not guarantee the definitive detection of a hidden true intent. Rather, it is the public instrument that, by complying with all legal requirements, serves as the mechanism used to conceal such acts, as they are valid vis-à-vis third parties. The apparent legality of a declared intent sometimes falls under criminal offenses that, when they go beyond the civil sphere, lead to crimes such as fraud, usury, and tax evasion, among others. Although mechanisms have been implemented to facilitate the early detection of alleged illegal acts—such as the appointment of Compliance Officers in notary offices—their scope is insufficient, and the legal loophole persists. Therefore, I will propose measures aimed at strengthening prevention and detection mechanisms within notary offices.