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¿Violan los precedentes la IJI? Desencuentros desde la incomprensión
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Núñez Vaquero, Álvaro
This work aims to clarify, from the point of view of the analytical theory of law, the question of whether the existence of judicial precedents in a legal system necessarily implies a violation of the internal judicial independence (IJI). To answer the question, we will try to clarify the way in which the IJI is being understood to affirm that it would be affected by the presence of a system of precedents (SP’s). It will proceed as follows: First, it will start by making explicit the reasons why it is necessary to deal with this problem. Secondly, it will be specified what it means that there is a binding SP’s. Third, it will explain what judicial independence consists of, presenting the reasons that justify the IJI: respect for the will of the legislator and equality in the application of law. Next, I will present three aspects of the IJI that could clash with the presence of an SP’s. In the fourth section, it will be argued that an SP’s is less injurious to the IJI than attributing to each of the judges a non-revisable competence to establish how the law should be interpreted and applied. In the conclusions, it is pointed out that although there may be reasons against having a precedent system, the IJI is not one of them.
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El caso de los buzos miskitos: un laboratorio vivo para auditar la adaptabilidad del Sistema Interamericano de Derechos Humanos
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Cabezas Albán, Víctor Daniel
This paper addresses the level of adaptability of the Inter-American Human Rights System towards different issues, such as the human rights of legal entities and the international responsibility of legal persons for human rights violations. This analysis is made through the lecture and narration of the case Opario Lemoth Morris y otros vs. Honduras, which has been recently summited before the Inter-American Human Rights Court.
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Enemistad aparente: la tensión entre el concepto de graves violaciones de derechos humanos de la Corte Interamericana con el derecho penal
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Lengua Parra, Adrián; Ostolaza Seminario, Victor Emilio
From the judgment of the Barrios Altos case vs. Peru, the InterAmerican Court of Human Rights began to develop the concept of «serious violations of rights» and their consequences in the national criminal sphere. Despite being a consolidated standard, nowadays there are still doubts about what acts should be classified under such legal category and if it is correct to limit certain procedural and criminal guarantees in order to achieve their criminalization. This paper explains these controversies in order to propose a legal solution that avoids impunity and ensures the legitimacy of the legal system.
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¿Sospechar para igualar? Un análisis «estricto» de la doctrina de las categorías sospechosas a partir de la jurisprudencia del Tribunal Constitucional peruano y la Corte Interamericana de Derechos Humanos
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Valdivia Aguilar, Trilce
This paper is an introductory study of the doctrine of suspect classifications based on the case law of the Peruvian Constitutional Court and the Inter-American Court of Human Rights. It aims to describe the special features of this doctrine as well as to critically analyze its proposed justification and the consequences of its application: The strict scrutiny test. To achieve this purpose, this work describes the case law in which both courts have explicitly mentioned this doctrine. Based on this study, the author identifies that the foundation of this doctrine lies in the notion of equality as recognition of vulnerable groups and that both tribunals have established as its main effect the application of a strict scrutiny test. Finally, the author critically assesses these jurisprudential findings.
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El caso fortuito: fundamentos culturales y religiosos de una categoría jurídica y de una cosmovisión
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) De Nardi, Loris
This article proposes a reflection on the cultural and religious fundamentals of the fortuitous case: The legal category called to discipline, from the Roman Law, the consequences (patrimonial, contractual and criminal) of the facts unrelated to the negligence, fault or deceit of the agent, as they are, for example, all events related to threats of natural origin (earthquakes, floods, etc.). In the proposed text it will be shown that the fortuitous case was shaped by the divine and supernatural beliefs of the ancient Greeks and Romans; that this trait, codified during Roman pagan times by the Roman jurist Gayo (II century A.D.), was conserved during the first Christian period, as shown by the Corpus Iuris Civilis of Justinian (VI century A.D.), because the pagan cosmovision related to disasters was received by the Holy Scriptures; and thatfor its conformity with the biblical dictation (and consistent cosmology), this legal category, called to discipline the consequences of disasters related to threats of natural origin, was adopted by the medieval society in general, and by Hispanics in particular, as some norms of the Espéculo and the Siete Partidas.demonstrate.
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La modificación constitucional del derecho a la nacionalidad peruana
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Abugattãs, Gattãs
In 2018, article 52 of the Political Constitution of Peru of 1993, which regulates the ways in which Peruvian nationality is acquired and granted, was modified. With this amendment, will be considered Peruvians «by birth», among other cases, not only those persons born abroad of a Peruvian father or mother who are registered during their minority in the corresponding registry, but also those who, in that condition, are registered during their age of majority.This paper explains what should be understood by nationality; develops the Peruvian constitutional regulation of nationality, detailing the amendment process of article 52 of the Constitution; to finally make a critical analysis of this reform.The purpose of this paper is to demonstrate that there is no justification for establishing differences between persons born abroad of a Peruvian father ormother who are registered during their minority in the corresponding registry, who acquire nationality «by birth», and those who, in that condition, areregistered during their age of majority, who —before the amendment— were granted nationality for exercising the «right of option», which did not allowthem access to all constitutional rights role.
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¿Existe un lugar para el arbitraje dentro del sistema de reparaciones practicado por la Corte Interamericana de Derechos Humanos?
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Ríos Carrillo, Piero
This work addresses the role which arbitration could occupy within the reparations system developed by the Inter-American Court of Human Rights when solving contentious disputes. In that sense, the only two precedents in which the Court entertained the possibility of considering arbitration as an alternative means for the determination of reparations shall be described: Garrido and Baigorria vs. Argentina and Chaparro Alvarez and Lapo Iñiguez vs. Ecuador. From the analysis of these two precedents, the author will try to: a) Identify and characterize the different approaches taken by the Court in each case; b) evaluate whether these two approaches are consistent with the relevant international human rights law and the general principles of arbitration; c) point out how and when arbitration can be used as an alternative mechanism to determine the reparations in a case concerning human rights violations.human rights violations.
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Objeción de conciencia y aborto en Chile
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Marshall, Pablo; Zúñiga, Yanira
This paper critically analyzes conscientious objection in the context of the new regulation of pregnancy termination in Chile. It affirms that adequate regulation should not be blind to the hostile context in which abortion rights have been enacted and the difficulties experienced. The bioethical requirements that seek to balance the interests involved must consider the legal regulation of the interests at stake, the context in which they are implemented and, fundamentally, the effectiveness of the solutions adopted. Attention should be paid to the risks involved in the proliferation of objections that are not serious and to the political use of conscientious objection to prevent the implementation of women’s reproductive rights. In describing the process of entrenchment, strengthening and expansion of the conscientious objection in Chile, we show how this process has overprotected consciousness and the risks of undermining the effectiveness of the new abortion law, hindering and dilating the enjoyment of rights entrenched by the law. In response, regulatory measures are proposed to reverse this situation, which are obtained mainly from the bioethical literature on the subject and that look at the adverse context of the guarantee of women’s sexual and reproductive rights.
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La enseñanza del derecho frente al pasado de sus estudiantes
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Del Mastro Puccio, Fernando
In this paper we conduct a qualitative analysis of law students’ experiences with authorities when they were high school students. Through a psychoanalytical framework, we seek to understand the relational dynamics underlying those experiences and their possible impact in the construction of the law students’ «regulatory self», that is, in the way they live within regulatory systems. Then we explore the different manners in which that past could be present in the way law students live legal education and then their profession. Finally, we suggest diverse attitudes that law schools’ authorities, professors and students can develop in order to avoid authoritarian relational dynamics and to construct a «regulatory ethos» which can contribute to the growth of students’ «regulatory self».
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Análisis documental sobre el tema del big data y su impacto en los derechos humanos
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-05-29) Téllez Carvajal, Evelyn
The aim of this article is to provide the reader a documentary record on the subject of the technological infrastructure and the knowledge management of big data analytics and their relation to human rights. Currently, human rights violations around the world due to the indiscriminate use of big data analytics is a constant, since the information that is generated every day and every second by the use of technological devices —such as smartphones— makes possible the collection of information, that goes from consumption data to even private information, such as religious opinions or biometric data. Human rights violations due to big data analytics starts by the way personal data is collected and treated. Sometimes people do not know how their data are being processed, stored or used.As a result of the analysis, it was observed that several articles, books and papers refer to personal data and privacy regulations, focusing in the regulations of the data mining conditions. Despite, those regulations, it can be observed that big data analytics could allow a wide margin for infringement of not only the human right to privacy, but also of another human rights; for instance, through actions that promote racism, the creation of blacklists, the promotion of segregation and the limit of the freedom of speech, just to mention some examples.

Derecho PUCP. Núm. 84 (2020)

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