Derecho y Sociedad. Núm. 62 (2024)
URI permanente para esta colecciónhttp://54.81.141.168/handle/123456789/201833
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Ítem Texto completo enlazado La protección del personal sanitario y las unidades sanitarias bajo el Derecho Internacional Humanitario: una aproximación a partir de los ataques en Gaza(Pontificia Universidad Católica del Perú, 2024-09-19) Vergara Lamadrid, AnaThe aim of this article is to introduce the specific regulation on the special protection that International Humanitarian Law provides to medical personnel and medical units in the context of armed conflicts. What is more, it seeks to present the current panorama in relation to compliance with this special protection in different conflict zones such as Syria and Afghanistan, as well as the case law development in the International Tribunal for the Former Yugoslavia and the International Criminal Court. Finally, the article presents a brief analysis of the situation in the Gaza Strip, especially in relation to the attack on Al Shifa Hospital.Ítem Texto completo enlazado La despenalización del aborto por violación sexual en el Perú(Pontificia Universidad Católica del Perú, 2024-09-19) Paucarchuco Gonzales, Frank JamesThe abortion debate is complex and multifaceted, encompassing not only legal and criminological aspects but also ethical and moral issues. Peru maintains a highly restrictive stance, allowing abortion only when the mother’s life or health is in danger. However, this prohibition contrasts with the reality of frequent clandestine abortions and scarce prosecution in our justice system. Given this situation, it is necessary to reopen the public debate, proposing the decriminalization of abortion in cases of sexual assault as a starting point. Taking these abortion cases as a starting point in this work responds to three arguments, namely, the special situation of women facing pregnancy, the compatibility with our legal framework, and the ineffectiveness of its current prohibition. In this way, the aim is to encourage general debate with a view to penal reform regarding abortion in our country.Ítem Texto completo enlazado Vigilancia de la salud de los trabajadores: el pendiente desarrollo de una mayor regulación en el Perú(Pontificia Universidad Católica del Perú, 2024-09-20) Castro Ramos, TrinidadThe purpose of this article is to present the regulation of health surveillance of employees in Peru. As well as parameters from other countries that may be useful to develop and/or complement the guidelines already established in the Law, Regulation and Protocol of Occupational Safety and Health. This in the context, no less important, of Safety and Health at Work as a Fundamental Right for the International Labor Organization, which emphasizes the relevance of greater protection to health surveillance, the promotion of work adaptation and participation in the analysis of occupational accidents and occupational diseases.Ítem Texto completo enlazado Arbitrajes contra las decisiones del operador del mercado eléctrico peruano – COES. Análisis de los laudos arbitrales expedidos en el período 2010-2023(Pontificia Universidad Católica del Perú, 2024-09-20) Leyva Flores, RicardoThe Peruvian electricity market operator is COES, it is a private company under public law, composed and governed by generators, transmitters, distributors, and the Free Users. The Board of Directors, which is the final authority, makes its decisions without any government intervention. Disagreements with COES decisions are resolved through Arbitration at Law or Arbitration of Conscience. Peru has a significant arbitration practice against the electricity market operator decisions (COES). This is evidenced by the Awards issued during the period 2010-2023. The purpose of this paper is to analyze this practice, focusing on those discussions that may be useful for implementing improvements in dispute resolution mechanisms in the electricity sector (such as the implementation of permanent tribunals), something which could be worthy for other markets as well. At the time of the decision, the arbitrators exercise full jurisdiction; therefore, they have the power to resolve the dispute definitively, even if the COES has not made a substantive statement when issuing its decisions. However, tribunals cannot issue general guidelines, binding precedents or condition the issuance of future COES decisions, which affects the uniformity of awards, as we have seen throughout this article. The main problem found is the lack of uniformity, and it could be explained in the conformation of the tribunals (case-by-case basis) and the broad criterion employed in Arbitrations of Conscience, where arbitrators are allowed to omit the legal framework. Other relevant problems are also analyzed.Ítem Texto completo enlazado La corrupción en el sector salud: características, algunas de sus tipologías y efectos(Pontificia Universidad Católica del Perú, 2024-09-19) Ramírez Cosme, Alexis GustavoIn this research, the author approaches corruption linked to the health sector, treating the characteristics that make up its occurrence in the health system, thereby answering the question of why the health system is so attractive for acts of corruption. Then, some of the most important criminal typologies that national and international experience have brought to light are presented, analyzing their details and their relationship with the agents of the health system. Finally, scope is provided on the effects that this scourge has on society, providing notes in order to anticipate the problem.Ítem Texto completo enlazado Procedimiento sancionador en materia de salud: análisis de las principales infracciones vinculadas a las atenciones médicas de las IPRESS(Pontificia Universidad Católica del Perú, 2024-09-20) Linares Tenicela, Rony; Sihuas Baltodano, Fabricio StefanoThe purpose of this article is to briefly describe the main administrative health offences related to medical care. However, to achieve this objective, it is first necessary to make a brief reference to the foundations of SUSALUD’s sanctioning power, pointing out the main characteristics of the sanctioning procedure and the bodies involved in its processing. Subsequently, the main infractions will be analyzed considering the legal, doctrinal in some cases and medical grounds that support each of them, mentioning some examples for the reader’s understanding. Finally, mention will be made of the main errors committed at the time of filing complaints, as well as the possibility of using other alternative mechanisms for the resolution of controversies, all of this respecting the objective of the present work, which is to make the sanctioning procedure known as the protection of health rights.Ítem Texto completo enlazado La responsabilidad civil médico-sanitaria: Principales desafíos en torno a la lex artis durante la pandemia por Covid-19 en el Perú(Pontificia Universidad Católica del Perú, 2024-09-20) Barco Hidalgo, Gino Leonardo MiguelOne of the key topics of discussion during and after the pandemic caused by the appearance of covid-19 around the world is the civil liability generated by the actions of health professionals (considering the health structure) before unforeseeable emergency situations. Likewise, the Peruvian health system was forced to face various challenges, through tools such as the application of public policies and implementation of special regulations, which mostly had an impact on the determination of the responsibility of health professionals during the state of health emergency. In this sense, in this research work, civil medical-sanitary liability will be addressed, based on a study of the application of the lex artis according to the national legal system. To do this, it will start with a study of medical-health civil liability in Peru, detailing what types of obligations apply depending on the case and identifying the actors in the health system who can be accused. Secondly, the lex artis is presented as a parameter of diligence, for which a study of concepts is provided, and it is differentiated from linked notions such as the lex artis ad hoc. Finally, the main challenges that Peru faced during the covid-19 pandemic and their impact on the determination of civil medical-health responsibility were established.Ítem Texto completo enlazado La sobreposición causal de la suspensión del vínculo laboral(Pontificia Universidad Católica del Perú, 2024-09-20) de los Santos Esteves, Juan MiguelThe suspension of the employment relationship is a legal concept that is necessarily causal and temporary, and being properly a contingency of the employment contract, it can occur predictably or unpredictably. In this regard, what is known as the causal overlap of work suspension could be configured, which occurs in the presence of more than one valid cause that generates the suspension of the same employment relationship simultaneously. Therefore, after analyzing the main characteristics of work suspension: its causality and temporality, we will determine whether, in the case of the causal overlap of work suspension, the validity of the effects of the causes that generate the suspension of work and the legal effects on the employment relationship could be deferred or modified given the overlap of causes that generate both imperfect and perfect suspension of work simultaneously.Ítem Texto completo enlazado La problemática de la imputación en los procedimientos sancionadores de SUSALUD(Pontificia Universidad Católica del Perú, 2024-09-20) García Ascencios, Frank; Ocaña Cerro, MayraThe National Superintendence of Health (Susalud) is the specialized technical agency attached to the Ministry of Health, which is in charge of promoting, protecting and restoring the rights to health services, with quality, opportunity, availability and acceptability. In order to fulfill this purpose, Susalud has the sanctioning power, therefore, it manages the administrative sanctioning or trilateral sanctioning procedure against Health Service Provider Institutions (IPRESS), Health Insurance Fund Administration Institutions (IAFAS) and Health Service Provider Management Units (UGIPRESS). However, Susalud has several contingencies in the charging of the accused, a fact that causes the sanctioning procedures to suffer from defects of nullity from the charging stage, affecting the accused and the complainants, who suffer the legal consequences of a bad start of the procedure. This work collects and develops the most frequent errors in the imputation of charges in Susalud.