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Garantismo y publicismo en el proceso civil: un enfoque analítico
(Pontificia Universidad Católica del Perú, 2021-11-25) Cavani, Renzo; Castillo, Álvaro
This essay uses an analytic methodology in order to differentiate three approaches in the classical debate between activist (publicist) and adversarial (guarantee) models in the continental tradition of civil procedural law: the historical, philosophical and institutional approach. It is showed that each one of them has different premises of discussion and also allows to reach particular consequences. We defend a proposal to distinguish between the activist model and the adversarial model from a philosophical point of view by identifying the political theory premises that are in their foundations. In the activist model, the State’s function is to be a provider for the protection of fundamental rights and, therefore, the judicial process is conceived as an instrument of the jurisdiction in order to achieve its public goals. On the other hand, in the adversarial model, the State’s function assumes an abstentionist- type in order to preserve fundamental rights and hence, far from being and nstrument of judicial power, the judicial process is conceived as a citizen’s guarantee oriented to control that very power.
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La responsabilidad social universitaria desde el derecho administrativo
(Pontificia Universidad Católica del Perú, 2021-11-25) Villegas Vega, Paul; Cairampoma Arroyo, Alberto
In this article, the authors seek to make administrative law visible as a tool for university social responsibility. For this purpose, a qualitative methodology is used, which involves the review of norms and specialized doctrine that allows, on the one hand, the identification of the actors responsible for the fulfillment of public purposes and/or interests such as the State and the university; and, on the other hand, the development of the university social responsibility approach in Peru and the systematization of activities carried out in the framework of the implementation of the university social responsibility initiative promoted by the Pontificia Universidad Católica del Peru, in collaboration with the Municipality of Miraflores in Lima, Peru.
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El etiquetado frontal en los alimentos y la iconografía jurídica: un ejemplo para la comprensión del trasplante jurídico y del nuevo paradigma latinoamericano
(Pontificia Universidad Católica del Perú, 2021-11-25) Ferrante, Alfredo
This paper analyzes the front-of-pack food labelling, with particular attention to Chilean, Colombian, Ecuadorian and Peruvian regulations (also de lege ferenda regulations). The aim is to contribute to a better understanding and use a comparative methodology, in particular of the figure of the legal transplant. In that sense, a concrete example of operability (not necessarily achieved) of a transplant is provided. The work also shows that the analyzedlegislations are far from European models and take Latin American standards as a reference, contributing to a paradigm shift in relation to the traditionalinfluence of foreign regulations that is usually incorporated into Latin American national systems.
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Supervisión en la ejecución de las penas alternativas: origen, fertilización y resistencias
(Pontificia Universidad Católica del Perú, 2021-11-25) Murillo, Consuelo
Nowadays we can find in common law and civil law legal systems noncustodial criminal sanctions with an intervention in the life of the offender that takes the form of supervision. In this paper, it is argued that these elements of intervention were present into alternative penalties from its inception in the common law system, which later fertilized civil law jurisdictions, that had alternative penalties without supervision. To do so, the origin and evolution of alternative penalties in both groups of jurisdictions are studied. The introduction of supervision in the civil law system in the 1960s and a second moment of fertilization or transfer in the 1990s are also taken into account, considering the broader legal and cultural processes to explain these developments and the main resistance to these changes.
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La función de la Corte Penal Internacional y las teorías críticas del derecho internacional
(Pontificia Universidad Católica del Perú, 2021-11-25) Urueña-Sánchez, Mario; Dermer-Wodnicky, Míriam; Hernández-Cortés, Clara
This article seeks to analyze the function of the International Criminal Court (ICC) from the analytical horizon of critical studies and the particular contributions of the Helsinki School and social idealism. To achieve this objective, the main postulates of both perspectives are compared towards the concept of international criminal justice (ICJ), in general, and towards the performance of the ICC in its time of validity, in particular. The methodology used is that of a documentary analysis with a strong inclination towards texts of a theoretical, doctrinal and jurisprudential nature.
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Instrumentos administrativos para el fomento de la innovación tecnológica en el sector financiero peruano
(Pontificia Universidad Católica del Perú, 2021-11-25) Suárez Barcia, Lucía
This document strives to analyze the new approaches to regulatory supervision (innovation facilitators) that are being developed worldwide because of the fintech phenomenon, evaluating whether they would be beneficial for Perú, especially in relation to financial inclusion. For this reason, we have proceeded to a review of initiatives to promote fintech innovation worldwide, studying their characteristics. This analysis has a teleological nature of reviewing administrative supervision policies, grouping them into three large taxonomies: innovation centers, sandbox and others, such as innovation accelerators, studying in greater detail the sandboxes due to their relevance and potential impact. Specifically, the article explains the concept of sandbox, including the objectives for which they are designed, their main benefits and risks. Afterwards, the paper specifies the phases that these projects usually go through and their timelines. Two particular cases of sandbox are also described, the Mexican, which requires a «new model» license; and theIsraeli, focused on data. Subsequently, the potential benefits and challenges of applying this type of public policy in Peru are evaluated. Finally, a model is proposed for the country, aligned with the financial inclusion strategy, which allows the open participation of all types of entities, including those called fintech, for the greater benefit of society and the markets.
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La reflexión de la práctica de docencia como estrategia para la innovación en la formación jurídica
(Pontificia Universidad Católica del Perú, 2021-11-25) Elgueta Rosas, María Francisca; Palma, Eric Eduardo
Reflective praxis is a relevant instrument for permanent innovation in the training process. Strengthening the ability to ask questions and solve pedagogical problems, using research as a tool for reflecting on one’s ownwork, would be a contribution to the comprehensive approach to changes in the teaching practices of law professors. We propose, therefore, to highlight the value of the creation of a research culture of the teaching profession itself and to present a strategy, in broad strokes, for the implementation of a reflective praxis. Teaching practice in legal training is structured in a pedagogical, disciplinary, evaluative and curricular framework in relation to the context in which it occurs and the beliefs and visions of the teacher who executes it. In addition, it is the product of the conception that teachers have about what law is and can be formalistic, critical-realistic or argumentative-democratic.
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La dignidad como derecho en el Sistema Interamericano de Derechos Humanos
(Pontificia Universidad Católica del Perú, 2021-11-25) Busso, Giuliana
The Inter-American Court of Human Rights has declared the violation of the right to dignity in various judgments based on the provisions of section 11 of the American Convention on Human Rights, whichestablishes the right to respect of honor and recognition of dignity. This section does not refer to the right to dignity explicitly, but it has been used by the aforementioned court to declare the violation of dignity as a right. Therefore, the purpose of this paper is to investigate whether the right to dignity has an object determined by the jurisprudence of the Inter-American Court of Human Rights. Consequently, the first part of this paper will address some doctrinal positions on dignity with emphasis on two authors that have proposed systematizations of the concept of dignity as a right. Then, the second part will continue with a study of the origin of section 11, which intends to determine how and why the word «dignity» was included in the aforementioned section. Subsequently, this paper will analyze the cases in which the Inter-American Court of Human Rights declared the violation of the right to dignity.
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Justicia de familia y victimización secundaria: un estudio aplicado con niños, jueces y abogados
(Pontificia Universidad Católica del Perú, 2021-11-25) Carretta, Francesco; Quiroga, Manuela Garcia
Abstract: The International Convention on the Rights of the Child establishes their right to participate in all matters affecting them. Alongside, there is the widely studied phenomenon of secondary victimization (SV)in criminal justice. This article critically analyses the existence of SV in the context of family courts. In a qualitative study, the opinions of judges (n = 10), lawyers (n = 10) and children (n = 6) regarding child participation in family cases are explored. The analysis of the data provided by the interviews of judges and lawyers was made based on ten dimensions of analysis; and, in addition, the dogmatic method was used, with the description and comparative and critical analysis of the law, which was confronted with the aspects collected in the empirical work. The data analysis of the child participants was carried out by means of a categorical analysis based on three categories: to be informed, to be heard and to be considered in decision-making. Additionally, facilitating and hindering factors about their experience in family courts were extracted inductively. Results indicate that judges and lawyers show interest in child participation, but are limited by the view that there could be similar SV to that which exists in criminal proceedings. This contrasts with the perceptions of children, who indicate an interest in being informed and listened to, and suggests some elements for this experience to be favorable, such as the reduced presence of adults in the courtroom, getting to know the lawyers and judges beforehand, and the friendly treatment of children. Finally, suggestions are made to guarantee respect for the right to participation in an adequate context.
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Derrotabilidad de reglas y principios. Una propuesta de análisis
(Pontificia Universidad Católica del Perú, 2021-11-25) García Yzaguirre, Victor
In this article I am going to analyze and criticize the proposal for conceptualizing the defeasibility of rules and the defeasibility of principles in the theses of Manuel Atienza and Juan Ruiz Manero. For this purpose, Iwill carry out a brief critical reconstruction of their proposal of distinction in order to indicate in a concise, clear and precise way how they understand the defeasibility of prescriptive norms. I will do that for the purpose of justifiying three points: a) the defeat of rules is better understood as a reinterpretativeprocess of legal material; b) defeating rules is not equivalent to defeating principles; and c) the language of rules and principles presents the same operations and results as the language of recalcitrant experiences and axiological gaps, only that, unlike these, the first of the languages presupposes a prescriptive claim about how the language of the legal material should be understood. To achieve this objective, I will take the following steps: in section II, I will present critically the distinction between rules and principles, the notion of licit and illicit atypical act, and what it means to say that rules are resistant to principles. In section III, I will present that the reconstructed thesis suffer from ambiguity when they develop the notion of defeasibility.They present, on the one hand, a problem of superability between norms and, on the other, a problem of apparent relevance of a norm to solve an individual case. Likewise, I will offer a proposal to reformulate the defeat of rules from the theory of interpretation. Finally, I will end by showing that the language of rules and principles presupposes a normative thesis about how norms should be identified.

Derecho PUCP. Núm. 87 (2021)

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