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Sobre la pretendida especialidad de la Ley N.° 20.027 respecto a la Ley N.° 20.720 sobre insolvencia y reemprendimiento en Chile. Reflexiones acerca de las condiciones que debe cumplir una norma para ser considerada especial
(Pontificia Universidad Católica del Perú, 2023-11-28) Campos Micin, Sebastián; Ezurmendia Álvarez, Jesús
This article critically examines the jurisprudential line developed in recent times by the civil chamber of the Chilean Supreme Court regarding the exclusion of credit with state guarantee for the financing of higher education studies of the bankruptcy liquidation procedure. After identifying the conditions of application of the specialty criterion and the principles that inform the bankruptcy proceedings, it is explained why, contrary to what the room maintains, the mechanisms contemplated in title V of Law No. 20.027 are not really special in view of the bankruptcy liquidation procedure regulated by Law No. 20.720. In general, it is maintained that not all regulations associated with general or special hypotheses of insolvency are part of bankruptcy law. To the extent that the regulation does not refer to a collective process, with bodies that tend to increase the recovery rate of creditors and/or safeguard the credit system and economic public order, the regulation is not part of bankruptcy law. In this understanding, it is concluded that the mechanisms contemplated by Law No. 20.027 are not part of bankruptcy law, since all of them are nothing more than means of individual protection, even when they are associated with a hypothesis of insolvency.
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La formulación de un estándar normativo de imparcialidad que incorpore la imparcialidad objetivo-cognitiva en el ordenamiento jurídico peruano: un estudio sobre la repercusión de la jurisprudencia de los tribunales internacionales de derechos humanos
(Pontificia Universidad Católica del Perú, 2023-11-28) Higa Silva, César; Sotomayor Trelles, José Enrique; Cavani, Renzo
This article is a case study on the configuration of the duty of impartiality in the jurisprudential development of human rights courts and its influence on Peruvian domestic courts. In this line of reasoning, the way in which the distinction between subjective and objective impartiality —identified with the “theory of appearances”—has been constructed is analyzed and, later, the relationship between impartiality and cognitive bias is determined. This is done with the aim of criticizing the theory of appearances and proposing the formulation of a standard in which three dimensions of the guarantee of impartiality are distinguished: subjective, objective-functional and objective-cognitive. Finally, the distinction between external and internal judicial independence is addressed, and its difference with impartiality is determined.
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Estándares probatorios y dilemas jurídicos en la identificación de restos de personas víctimas de desaparición forzada. Una mirada desde la experiencia chilena
(Pontificia Universidad Católica del Perú, 2023-11-28) Accatino, Daniela
The challenge of the search for victims of enforced disappearance usually includes the recovery of the identity of the remains that are found. This paper highlights the legal dimension of identification and its quality as a decision about the proof of a fact, which can be analyzed with the conceptual tools of the theory of legal evidence. On that basis, it analyzes the question about the applicable standard of proof considering the recent Chilean experience, which shows how positive DNA evidence has tended to consolidate as a sort of golden standard, exclusive and excluding, for the identification of human remains in the case of enforced disappearances. However, that standard of certainty will be often difficult to meet because of deterioration of DNA in the remains samples obtained, because of the scarcity of samples given the practice of massive clandestine exhumations or because of a lack of relatives’ samples for comparison. The paper explores the questions that then open up, regarding both the possibility that other forensic evidence may be acceptable as sufficient and the treatment of the unidentified remains.
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Aportaciones criminológicas a la comprensión de la corrupción transnacional
(Pontificia Universidad Católica del Perú, 2023-11-28) Olasolo, Héctor; Villarraga Zschommler, Luisa Fernanda; Linares Botero, Sofia
This article studies different criminological perspectives that help to fathom the phenomenon of transnational corruption. To this end, we will first study the characteristics of contemporary societies from different criminological viewpoints and then explain how these contribute to the study and comprehension of transnational corruption. In addition, multiple criminological perspectives will be analyzed, such as white-collar and mass media criminology, victimology, green and maldevelopment criminology, crimes of globalization and macrocriminality, among others.
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Eutanasia, suicidio asistido y derechos humanos: un estudio de jurisprudencia comparada
(Pontificia Universidad Católica del Perú, 2023-11-28) Buriticá-Arango, Esteban
Judges have played a leading role in the decriminalization of euthanasia and assisted suicide in several countries. Since the 1990s, they have promoted the annulment or restriction of norms that punish mercy killing and assisted suicide and have contributed to the development of the ethicallegal foundations of assisted death procedures. However, in each country, the judges have attributed very different scope, nature and foundations to the right to assisted death. In this article I analyze three main differences, related to the conditions that give access to medical care, the fundamental rights that support it and its nature as a subjective right. I conclude that the right to assisted death can be, depending on the country, a privilege, an immunity or a claim, often based on different—and incompatible— interpretations of fundamental rights and with variable applicability.
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Manipulando genes y cerebros: la bioética y el derecho ante la mejora humana
(Pontificia Universidad Católica del Perú, 2023-11-28) Morente Parra, Vanesa
This article analyzes the role of bioethics and law in the face of the development of meliorative intervention techniques on the genotype and the brain. With the development of the CRISPR/Cas9 technique in recent years, an individual could enhance his genetic conditions by manipulating his somatic cells. Similarly, with the new BCI techniques, an individual could connect his or her brain to an AI in order to stimulate and enhance certain brain areas. However, both bioethics and law seem to infer a general prohibition of meliorating interventions. What rational arguments support this prohibition? Is the human body an unavailable asset for the individual? Is individual freedom and autonomy unjustifiably limited by it?
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Las transgresiones respetuosas de la enseñanza del common law y el derecho civil en Quebec: lecciones del método transistémico de educación jurídica
(Pontificia Universidad Católica del Perú, 2023-11-28) Córdova Flores, Álvaro
This article explores how the law is taught in the bi-juridical order of Quebec, where civil law and common law coexist. It focuses mainly on how the trans-systemic method of legal education was implemented and developed at the Faculty of Law of McGill University, in Canada. This method consists of teaching both legal traditions simultaneously and comparatively. It aims to enable its graduates to navigate Canada’s political and cultural tensions, engage in cross-cultural legal dialogues and practice in two legal systems. This approach emphasizes the coexistence of two legal systems, moving away from legalistic views and embracing legal pluralism. The article explains the different contextual layers surrounding the emergence and development of this trans-systemic method. It explains the macro-institutional context by presenting the tensions between Anglo-Canada and the province of Quebec; the meso-institutional context, which focuses on the discussions within the province and the law faculty; while the micro-institutional context presents how courses on obligations/contracts and tort/torts are taught.
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Reflexiones sobre los fundamentos de la responsabilidad médica por wrongful life. ¿La vida como daño?
(Pontificia Universidad Católica del Perú, 2023-11-28) Moreno More, César Edwin
The frustration of the expectations generated by the incessant advance of medical science and technology has led to a constant search for compensation. In this context, legal actions known as wrongful birth and wrongful life have been presented regarding the birth of minors with disabilities. While the former are recognized in the legal systems where these actions have been raised, the latter are generally denied, generating various doubts and questions. In this research, the arguments used in different legal systems to deny the acceptance of wrongful life actions are analyzed, questioning their foundation. This topic is especially complex not only from a legal standpoint but also primarily from a bioethical perspective, as its analysis involves an appreciation of the value of human life itself. In its development, we have used a qualitative research method, paying attention to the different legal systems of both civil law and common law. The research is divided into two parts: The first contextualizes the problem and the second focuses on its development, describing the origin and evolution of wrongful life actions, their circulation in various legal systems, their general denial in most of them and the critical analysis of the arguments manifested to deny their recognition.
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«Y cuando vio la foto de la nena, se le cayeron las medias». Humanitarización de las movilidades por salud y visado por tratamiento médico
(Pontificia Universidad Católica del Perú, 2023-11-28) Basualdo, Lourdes
This article aims to analyze certain manifestations of «humanitarianism» in the control and regulation of health mobilities in the Argentine context. At an empirical level, it investigates one of the political uses of the health visa, from the figure of «patients under medical treatment» contained in the Migration Law, based on the transcontinental mobility experience of a girl from Sub-Saharan Africa who entered Argentina in the mid-2010s under this migratory category. Through a qualitative methodology that combines participant observations and interviews developed between 2016 and 2019, the article shows the humanitarianization work through which people or groups with greater restrictions on mobility, in the framework of the reconfiguration of the “South American regime of migration and borders”, come to be produced as deserving of humanitarian treatment, as well as the tensions and conflicts experienced during the exercise of humanitarian control of mobility. It argues that, in the process of mobility for health under study, humanitarian control is configured from the articulation between the imposition and access to visa measures, the production of “callers” and certain political uses of humanitarian imagery.
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Violencia sexual y derecho penal: sobre los problemas contemporáneos en la interpretación del tipo penal de violación sexual en el Código Penal del Perú
(Pontificia Universidad Católica del Perú, 2023-11-28) Rodríguez Vásquez, Julio Alberto; Valega Chipoco, Cristina
This paper identifies the interpretative and qualification legal problems posed by the criminalisation of rape offences in Peru by examining the most contemporary case law and specialised literature. Through a teleological and systematic legal interpretation of these offences and applying a gender perspective, preliminary alternative solutions are constructed. The main legal conclusion reached is that, with the incorporation of the modality of “taking advantage of any other environment that prevents the person from giving free consent” in the offence of rape in its basic modality (article 170 of the Criminal Code), the Peruvian legal system has incorporated a model based mainly on the absence of consent for sex offences. This model, in turn, is close to the “yes means yes” approach to consent, based on a conventional, constitutional and teleological interpretation of the wording of the criminal offence. This paper also reaches other important legal conclusions about the criminal offence of rape, such as the feasibility of its coverage of cases of stealthing, the legal viability of its commission by compenetration and not only penetration, by improper omission and without requiring lewd intent in addition to regular intent, among others. Finally, considering these conclusions, articles 171, 172, 173, 174 and 175 of the Peruvian Criminal Code are systematically examined and congruent legal interpretations are proposed. One of the most relevant is the unconstitutionality of the criminal offence of rape by deception (article 175) and the rationale for its redirection to article 170, as the former could be used to argue that deception is not a suitable modality for committing rape against an adult or adolescent victim over the age of 13, preventing the adequate protection of sexual autonomy.

Derecho PUCP. Núm. 91 (2023)

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