STATUTES OF LIMITATION AND FAIRNESS IN THE COLLECTION OF PRIVATE PENSION CONTRIBUTIONS IN SOUTH AMERICA: A DISCUSSION FOR REFLECTION

Objective: The objective of this research is to analyze the regulatory frameworks on statute of limitations and judicial collection of contributions to private pension funds in 10 South American countries. Method: In this study, a systematic review was carried out based on the criteria of the PRISMA method, which facilitated the order in the information search process. The databases used were Web of Science, Scopus and PubMed, and no limits were set on the date of publication of the articles. Results and conclusion: Based on the selection of studies, a total of 20 studies that met the inclusion criteria were included. Common patterns were identified in the enforcement proceedings, but divergences in the statute of limitations periods in force between 3 and 10 years according to the legislation of each country. The analysis of the doctrinal debate revealed opposing technical arguments on the extension of these periods. In conclusion, there is a need for a country-specific approach and a balanced weighting of positions when reforming this sensitive area affecting regional pension systems. Research implications: This research establishes that regulatory frameworks are in need of pension reform to safeguard the integrity of vulnerable people. Originality/value: This study contributes to the reflection on the political and judicial structures that allow marginalized or economically vulnerable groups to have efficient access to justice.


INTRODUCTION
Social security is defined as the set of mechanisms designed by the State to guarantee the population access to benefits and benefits in the event of contingencies that may affect their capacity to generate income, such as old age, disability, illness, or unemployment (Rosas, 2023).Pension systems are one of the central components of social security since they seek to ensure income for the older adult population that has ceased its active working life (Campos & González, 2022).
Pensions, as a social benefit that guarantees economic security in old age, are now considered fundamental human rights.Access to a pension is an essential element for older persons to have an adequate standard of living that ensures their health, well-being, food, clothing, housing, medical care, and necessary social services.Therefore, States must guarantee and protect this right through inclusive, equitable, and sustainable pension systems, as part of their commitment to fundamental human rights.
In Latin America, following the neoliberal structural reforms implemented since the late 1970s and during the 1980s and 1990s, the vast majority of countries moved from public PAYG schemes with defined benefit benefits to mixed models of individual funding with defined contributions and individual pension savings accounts managed by private financial institutions, known as pension fund administrators (AFPs) (Guillén, 2011).
Although these reforms were aimed at increasing the coverage, adequacy, and financial sustainability of pension systems, in practice most of the South American countries that adopted these mixed forms of individual capitalization had high levels of pension evasion and delinquency (De Mesa & Bertranou, 1997).This translates into an inadequate or -directly-nonexistent payment of the mandatory contributions established by law by employers and workers to the AFP system (Parada, 2022).
This widespread pension evasion and delinquency generates a low density of contributions to the system throughout workers' working lives, which in turn undermines the quality and adequacy of the pensions they will be able to access once they retire (Pagnoncelli et al., 2023).In this context, the regulatory frameworks of pension systems in South American countries have been faced with the complex task of addressing the tension between guaranteeing the universal right to social security and access to decent pensions, on the one hand, and the need to ensure the financial solvency of pension systems in the long term, on the other hand, which requires the ability to demand and enforce the collection of the enormous mass of unpaid contributions that have accumulated in recent decades (Mantilla et al., 2023).
Two elements that acquire special relevance at the center of this dilemma are the statute of limitations on social security debts and the judicialization of collection processes.The statute of limitations, in legal terms, implies the extinction of liabilities and obligations after a certain period has elapsed (Hoeveler, 2021).In the case of social security debts, longer statute of limitations periods would, in principle, provide a greater possibility for collecting agencies to legally recover the collection of unpaid contributions (Pardo & Pico, 2020).However, the establishment of longer statutes of limitations has also been questioned for potentially affecting constitutional guarantees of legal certainty and due process for employers and workers (Jara et al., 2019).
On the other hand, the increasing judicialization of social security debt collection processes, i.e., the recourse to the courts of the Judiciary to demand the payment of unpaid contributions has opened complex debates regarding the relative attributions between the Executive and the Judiciary in this matter (Pacheco et al., 2017).It is argued that this judicialization guarantees the right to due process in collection cases, but it is also warned that it may strain the separation of powers and public policy outcomes (Fonsêca, 2021).
In this context, the main objective of this research is to carry out a systematic review of the literature on the regulatory frameworks in force in the main South American countries concerning the statute of limitations for pension debts and administrative and judicial collection procedures.Through a critical-reflective approach, similarities and disparities between countries, legal gaps, and pending regulatory challenges will be identified (Vargas, 2023).In addition, an in-depth analysis will be made of the arguments put forward in the doctrinal debate regarding the advantages and risks of the extension of the statute of limitations and the judicialization of collection, contrasting qualitative and quantitative evidence collected.
In this sense, the aim is to provide new empirical background and informed discussion to contribute to regulatory decisions and also to help advance towards a socially inclusive pension system that guarantees decent and financially sustainable pensions in the long term in ten South American countries.

RESEARCH METHODS AND METHODOLOGY
This research is a systematic exploratory-descriptive review of the scientific, regulatory, and jurisprudential literature aimed at analyzing in depth the state of the art on the statute of limitations of pension debts and the judicialization of their collection in individually funded pension systems in South America.
Specifically, this review seeks to answer the following research questions: Question 1: What are the characteristics of the regulatory frameworks for the prescription of debts on private social security contributions and judicial collection procedures currently in force in Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela?
Question 2: What doctrinal arguments have been put forward in the specialized literature on the extension of the statute of limitations periods for debts?
To answer these questions, a systematic search was made of publications indexed in Spanish, English, and Portuguese indexed in specialized academic databases such as Web of Science, Scopus, and PubMed.No publication date restrictions were applied.
The search took into account predetermined eligibility criteria and keywords such as "statute of limitations", "pension debts", "judicialization", and "judicial collection AFP" and their equivalents in English and Portuguese.Included were refereed academic articles, graduate theses, current regulations, jurisprudence, and institutional documents that address the topic of interest.
The selection of studies was carried out in two stages: 1) Review of titles, abstracts, and keywords to identify preliminarily eligible publications; 2) Complete reading of the text to assess its relevance, applying pre-established inclusion/exclusion criteria.The selected studies were subjected to a critical analysis of methodological validity before extracting their findings.
Thus, 388 unique references were initially identified by searching the Web of Science (No.=250), Scopus (No.=115), and PubMed (No.=23) databases.After the application of the eligibility criteria in the title and abstract screening phase, 304 articles were selected for fulltext evaluation.Critical reading of the full manuscripts resulted in excluding 293 publications for various reasons, mainly, for not being primary studies relevant to the research question (No.=112), or for being narrative reviews, editorials, or letters (No.=134).
A total of 20 studies that met the inclusion criteria specified in the methodology were included in the quantitative synthesis.The distribution of the publications through the identification, screening, eligibility, and final inclusion phases is summarized in Figure 1.This figure shows the selection process in PRISMA (Preferred Reporting Items for Systematic Reviews and Meta-Analyses) flowchart format.

RESULTS
The results were analyzed to compile a total of 20 studies on statutes of limitations in pension systems published between 1993 and 2023.The analysis of the temporal distribution of the publications shows that production has been irregular, with only 5% of the studies published in the 1990s.In the 2000s, the amount of research was maintained, i.e., 10% of the total.Between 2010 and 2018, 2 research studies were registered, equivalent to 10% of the cumulative total.However, it is in the most recent period -between 2019 and 2023 -that the highest productivity is concentrated, with more than half (75 %) of the studies published in only 5 years.Specifically, in 2019 and 2020 there were 7 publications, representing 35 % of the total.In 2021 there were 3 published studies, corresponding to 15 % of the cumulative, while in 2022 there were 2 investigations, representing 10 % of the total.

Identification
Thus, in 2023, 3 additional studies have been published so far, equivalent to 15% of the total.In this sense, the analysis reveals a marked increase in scientific production on prescription periods and pension systems in the last 5 years, so that more than half of the publications included in the systematic review are concentrated in this short period.
The regulatory frameworks governing the statute of limitations and judicial enforcement procedures related to the collection of debts for unpaid contributions to private pension funds in Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela, reveal the existence of similar general schemes for the coercive recovery of these pension credits through the courts.However, there are notable divergences in the terms of expiration of collection actions, as a result of the different domestic legislation in force in each country (Table 1).
Regarding the procedural routes for judicial collection, most of the legal systems analyzed establish similar phases for the forced execution of unpaid claims (Catalán, 2020).These processes include the filing of an executive lawsuit before competent judges, the issuance of a judgment ordering payment within a pre-established term, the imposition of precautionary measures on the defendant's assets, and subsequently, the auction of said seized assets to the defaulting debtor, using the funds obtained from the bidding to settle the debts (Hurtado, 2020).
Thus, in Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela, after notification of the action, the court issues a condemnatory judgment, establishing a peremptory term for the debtor to comply with the obligation, under the threat of continuing with the enforcement (Marcos, 2023).Although the debtor has the possibility of filing exceptions, the proceeding is not suspended.
In the event of non-compliance with the payment deadline, deposited funds and even other assets owned by the defendant are seized (Franco, 2019).The alienation of registrable assets of the defendant is prohibited and, subsequently, the auction of these seized assets is carried out, using the funds obtained to pay off all or part of the contributions owed.This common pattern applies in all the countries examined.
However, concerning the specific statute of limitations periods for obligations arising from non-integrated contributions to private pension funds, there are notable regulatory differences between countries: -Argentina: 10 years since the obligation became enforceable, according to article 4023 of the Civil and Commercial Code (Bianciotto, 2020).
-Bolivia: 5 years from the maturity of the obligation, under article 817 of the Civil Code (Rivamontán, 2023).
-Brazil: 4 years since the action could have been promoted, by Article 241 of the Capital Companies Law (Barceló, 2019).
-Chile: 5 years from the termination of the employee's services, according to Article 31 bis of Law 17.322 (Ruiz, 2021).
-Colombia: Between 3 and 5 years for civil and commercial debts in general, with no special rules for social security contributions (Muñoz, 2014).-Ecuador: Legal vacuum on deadlines for private pension debts (Cevallos & Mena, 2023).
-Paraguay: From 3 to 5 years for common equity obligations, with no specific regulations for pension contributions (Sánchez et al., 2021).
-Peru: 10 years by analogy with regulations on executive titles, according to the Plenary Jurisdictional District Commercial Court 2013 (Catacora, 2018).
-Uruguay: Absence of legal guidelines on the prescription of debts referring to private pensions (De Melo et al., 2019).
-Venezuela: No information has been found regarding the statute of limitations of debts in a clear manner, this is linked to the terms linked to the Social Security Law (Suárez & Álvarez, 2020).

DISCUSSION
Concerning judicial procedures for the collection of private social security claims, the countries analyzed share a similar general scheme but differ significantly in the statute of limitations established in their respective legislations, ranging from 3 to 10 years, or even being absent of regulations, which generates imprecision in the expiration terms.This regulatory disparity must be carefully evaluated when designing transnational strategies for the judicial collection of unpaid contributions to private pension funds.
The issue of the possible imprescriptibility of the statute of limitations applicable to obligations arising from unpaid contributions to private pension systems, in the context of modern Latin American legal thought, has generated an intense and complex doctrinal debate (Table 3).The polarization of opinions between those who advocate the extension of the terms and those who reject it has given rise to the formulation of solid and elaborate technical arguments that reflect diverse perspectives on the matter.
The position that advocates the extension of the statute of limitations argues that this measure could significantly contribute to optimizing access to justice for socially and economically disadvantaged sectors (Edelman, 2005).The argument is based on the premise that longer time limits would allow these dispossessed groups to enforce their rights more effectively against powerful entities such as pension fund administrators.The need to compensate for inequities that would otherwise hinder the protection of members' rights is emphasized (Boeckelman, 1993).
In addition, it is argued that the extension of the statute of limitations will facilitate the more thorough investigation of complex cases of massive evasion of social security contributions.The possibility of devoting more time to the investigation of fraudulent schemes would avoid the impunity that often results from limited statute of limitations (Draškić, 2020).From this perspective, it is postulated that the extension of terms not only benefits individual plaintiffs but also strengthens the legal system as a whole by promoting the effective prosecution of unlawful conduct (Lazarev, 2022).
In the area of legal certainty, proponents of the extension of time limits argue that this measure would contribute to consolidating legal certainty since it would avoid abrupt regulatory changes.The stability of the legal system would be favored by providing legal operators with a broader time frame to adapt to new and constantly evolving factual realities (Scanlan et al., 2002).From a pragmatic perspective, it is argued that temporal extension would act as an escape valve to alleviate the procedural burden on the judicial system, allowing for more efficient case management (Petro, 2019).
On the other hand, the rigidity of the current terms is criticized for the evidentiary complexities of certain litigation on unpaid pension contributions.It is argued that such restrictive terms hinder the thorough investigation of complex pension evasion schemes, which could lead to impunity for fraudulent maneuvers to the detriment of members of the private pension system (Pilipović, 2021).From this perspective, the importance of balancing the need to establish reasonable deadlines with the inherent complexity of these cases is highlighted.The National Chamber of Appeals in Commercial Matters established that social security debts with the State expire after 10 years, according to Law 14,236, and not in 5 years as stated in Law 11,683.This extends the term to make a judicial claim for unpaid pension contributions.The judicial collection process involves filing a lawsuit, obtaining a favorable ruling, communicating the judgment, and demanding payment within the terms set by the judge.The debtor must pay the obligation to avoid compulsory measures such as garnishments.Employers and fund administrators must keep social security contributions up to date to avoid costly lawsuits with long statute of limitations periods.

Argentina
Rivamontán In Bolivia, the Civil Code establishes a statute of limitations period of 5 years for debts for contributions to private pension funds.To collect these debts judicially, a lawsuit must be filed, a favorable ruling must be obtained, the judgment must be communicated and payment must be demanded within the terms established by the judge.The debtor must pay the obligation to avoid measures such as seizure.Employers and administrators must keep their workers' social security contributions up to date, so as not to have to face costly legal proceedings subject to the relatively short 5-year statute of limitations that applies in Bolivia.8 according to article 241 bis of the Capital Companies Law.To collect these debts judicially, a lawsuit must be filed, a favorable judgment obtained, the judgment communicated, and payment demanded within the court deadlines.
The debtor must cancel to avoid measures such as seizure.It is advisable to consult legal professionals for updated information, since this regulatory framework may vary.

Ruiz
The Chilean Supreme Court confirmed that the statute of limitations for the collection of social security contributions is 5 years according to article 31 bis of Law 17.322, counted from the termination of services.To collect these debts judicially, a lawsuit must be filed, a favorable ruling must be obtained, the judgment must be communicated and payment must be demanded within the terms of the court.The debtor must pay to avoid measures such as seizure.
Employers and administrators must keep the payment of contributions up to date, so as not to face lawsuits subject to the 5-year statute of limitations in force in Chile.

Muñoz
In Colombia, civil and commercial debts have a statute of limitations between 3 and 5 years from their generation, according to the Civil and Commercial Code.There is no specific regulation on the statute of limitations for private social security debts.For judicial collection, a lawsuit is filed and a judgment is obtained.Previously, a conciliation was attempted to reach an agreement.If no agreement is reached, a lawyer is hired and judicial proceedings are initiated where precautionary measures such as freezing of accounts and salaries of the debtor may be ordered.It is recommended to consult professionals for updated information on this legal framework.

Colombia Cevallos & Mena
COGEP allows for the collection of debts not exceeding 50 basic salaries without an enforceable title using a payment order process.In the judicial collection, a lawsuit is filed, a favorable ruling is obtained, a judgment is communicated and payment is demanded in fixed terms.If payment is not made, the debtor faces consequences such as seizure and auction of assets.It is essential to seek timely legal advice for defense in these cases.Particular statute of limitations periods for private pension debts in the country are unknown.
Ecuador Sanchez et al.
The Civil Code establishes that common debts are subject to a statute of limitations between 3 and 5 years from their generation.In judicial collection, a lawsuit is filed in court and the judge issues a judgment, which, if favorable to the plaintiff, orders payment within a certain period.If the debtor does not pay, measures such as garnishment of wages and accounts may be requested.It is recommended that debtors seek timely legal advice.

Catacora
Ruling No. 050-2023 of the Eighth Permanent Specialized Labor Court of Lima, establishes that the AFP's right of action to claim pension debts has a statute of limitations period of 10 years.This decision is based on the Regional Commercial Jurisdictional Plenary of June 2013, which dealt with the statute of limitations of executive titles.The ruling impacts the temporality of claims, limiting the period in which the AFPs can exercise their right.This court decision marks a milestone in the legal interpretation of the periods related to the collection of social security debts.

Peru
De Melo et al.
In Uruguay, the judicial collection of debts on private social security contributions follows a legal process.The creditor initiates the action by filing a lawsuit in court, and the judge issues a ruling.If in favor of the plaintiff, the judicial collection proceeds and the court issues a statement.The debtor must comply with the deadlines established by the court.Regarding the statute of limitations for debts on private social security contributions, the specific regulations are not detailed, but in some cases, the law could establish a tenyear term for social security actions, where the State is the creditor.

Suarez & Alvarez
In Venezuela, judicial collection procedures and the statute of limitations for debts on private social security contributions are governed by specific laws.For judicial collection, it starts with the issuance of a lawsuit in court to recover the debt.The judge's ruling determines the effectiveness of the collection, and the court issues the corresponding statement.9 private social security contribution debts in Venezuela, no information has been found regarding the statute of limitations for debts.Source: Own elaboration On the opposite side of the argument, those who oppose the extension of the statute of limitations outline arguments that highlight the possible creation of a state of uncertainty in legal relations, due to the excessive prolongation of the processes.The need to carry out legal reforms carefully and thoughtfully is raised, avoiding hasty modifications that lack justification (Shyshka, 2022).From this perspective, it is argued that the extension of time limits has not been reliably demonstrated as a means to improve access to justice.
In addition, the claim that the current time limits are unreasonable is questioned, arguing that they are already proportional to the legitimate purposes they seek to protect (Hasanova, 2019).From a guaranteeing perspective, there is a warning about the risk that the extension of time limits may violate fundamental rights, such as the defense in trial and the legal certainty of the defendants.In this sense, the importance of finding a balance between the protection of plaintiffs' rights and the preservation of fundamental legal principles is raised (Ugwuokpe, 2023).
As a synthesis of these objections, the adoption of particularized solutions based on the circumstances of the specific case is proposed.A prudent weighing of the interests at stake is advocated, avoiding generalized approaches that do not take into account the particularities of each situation.This proposal seeks to reconcile the concerns of both positions, recognizing the inherent complexity of the matter and the need to find a fair balance between the protection of citizens' rights and the efficiency of the legal system.
In short, the extension of the statute of limitations applicable to obligations arising from unpaid contributions to private pension systems in the contemporary Latin American context is a major issue, which has generated a deep and multidimensional debate in legal science.The technical arguments put forward both for and against reflect the complexity of the problem and the need to approach it with a thoughtful and careful approach.Legal operators, when considering any reform in this area, must prudently weigh the implications and consequences of their decisions, in the interest of achieving an equitable and efficient legal system.They advocate a careful review of deadlines based on the evolution of society and its needs.

Petro
They argue that outreach is crucial to address complex cases and avoid impunity.

Pilipović
They argue that short deadlines may limit access to justice, especially for vulnerable populations.

Shyshka
They consider the extension as a temporary measure to alleviate the workload in the judicial system.

Hasanova
They argue that the current deadlines do not adequately consider social and economic realities.

Ugwuokpe
They propose a flexible approach based on the severity and specific circumstances of each case.Source: Own elaboration

CONCLUSIONS
A comparative analysis of the regulatory frameworks governing statutes of limitations and judicial enforcement procedures related to the collection of obligations arising from unpaid contributions to private pension funds in Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay and Venezuela, reveals the existence of certain common general patterns in the procedural schemes used for the coercive recovery of this type of delinquent claims through judicial channels in most of the countries examined.
However, there are also significant regulatory differences in the statute of limitations terms contemplated in the domestic legislation of each country, which range from minimum terms of 3 years to maximum terms of 10 years, depending on the country, or even lack specific regulation in some jurisdictions.
This regulatory disparity makes it difficult for private pension fund management companies to formulate standardized strategies of regional scope for the judicial recovery of delinquent contributions.A careful study of the local regulations of each State is required to determine the particular statutes of limitations applicable depending on the place where judicial collection is to be carried out.
The issue of a possible extension of the current statute of limitations has generated an intense doctrinal debate since technical arguments both for and against this type of legal reform have been put forward by jurists and academics.Among the main arguments put forward by those who advocate an extension, is the fact that longer periods could improve access to justice for socially and economically vulnerable groups, as well as allow a more thorough investigation of complex cases of massive evasion of contributions to avoid impunity, stands out.
On the other hand, those who object to such reforms warn of the risk of generating greater legal uncertainty and excessive delays in judicial proceedings.They warn that it has not been empirically demonstrated that longer terms per se improve access to justice.Thus, they propose approaches tailored to the circumstances of the case.
In summary, although there are similar general patterns in the region in the area of forced execution, the disparity of statutes of limitations in national legislation offers a specific analysis for each country when implementing transnational strategies for the collection of private pension debts.Likewise, a prudent and balanced weighing of the doctrinal arguments for and against is required when adopting legal reforms in this sensitive area that affects the pension systems that will have to guarantee the social security of large sectors of the Latin American population in the coming decades.
The final objective of any regulatory modification in this respect must be to achieve a legal regime that adequately balances the need to provide efficient means for the collection of unpaid contributions by the AFPs, with the reasonable protection of contributors' rights, through appropriate judicial terms, in favor of socially inclusive private pension systems in the regional context.

Figure 1 .
Figure 1.Flowchart of search and selection of research articles Source: Own elaboration Law 31/2014 reduced the statute of limitations for liability actions against directors of capital companies to 4 years since they could be exercised, Brazil Statutes of Limitation and Fairness in The Collection of Private Pension Contributions in South America: A Discussion for Reflection ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.2 | p.1-13 | e04926 | 2024.
The debtor is obliged to comply with the deadlines established by the court.Regarding the statute of limitations for Venezuela Statutes of Limitation and Fairness in The Collection of Private Pension Contributions in South America: A Discussion for Reflection ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.2 | p.1-13 | e04926 | 2024.

Table 1 .
ResultsAnalysis of the exception of the monitory procedure art.357, second section, Cogep and the constitutional violation of the right to defense of art.76, letter g, of the Constitution of Ecuador of the systematic review Author(s) Title Year Bianciotto Old-age benefits in the Argentine social security system 2020 Rivamontán What are the possible economic repercussions in Bolivia from the approval of the Pension Fund Return Law, AFP?

Table 2 .
Regulatory Frameworks and Judicial Collection Procedures on Pension Funds

Table 3 .
Doctrinal arguments on the extension of statute of limitations periods