Texto completo enlazado
Las acciones representativas de cesación y reparación: misión y visión del modelo comunitario europeo
(Pontificia Universidad Católica del Perú, 2021-11-25) Ragone, Alvaro Pérez
This is a descriptive-evolutive, dogmatic and comparative study on the collective processes of the European Union (EU). On November 25th, 2020, the Union adopted one of its most awaited legal instruments: the firstlegislation, that is supposed to create a European collective action mechanism for monetary relief. According to Directive 2020/1828 on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC, member States have to adopt the transposing measures by December 25th, 2021, and give effect to them on and apply them to representative actions that are brought on or after June 25th, 2023. The European movement for collective litigation started approximately three decades ago. It earned official European recognition in competition law in 2005, owing to the European Commission’s Green Paper on Damages Actions for Breach of the EC Antitrust Rules, followed by the White Paper of the sametitle in 2008. From 2013 to the emission of the recent 2020 directive, the particularity of community collective redress and inhibitory guardianship has proven to be holistic, unlike the US class action model.This paper analyzes the three pillars of the European vision on collective redress seeking, namely: a) the extrajudicial alternative dispute resolution mechanisms, b) the regulatory and public policy mechanisms, and c) the collective processes or litigation. The interplay of these three pillars makes the European Union’s view on the matter singular as it proposes a system of incentives, prudence and safeguards.
Texto completo enlazado
El civil law frente al precedente judicial vinculante: diálogos con académicos de América Latina y Europa
(Pontificia Universidad Católica del Perú, 2021-11-25) Castro, Jordi Delgado; Díaz García, Luis Iván
This paper addresses binding judicial precedent. The semi- structured interview was used as a methodology for execution and a total of thirty-two academics, from ten countries in Latin America and Europe, participated of it. The results are structured around the arguments for and against precedent as a theoretical position; to narrate how vertex courts and inferior courts behave on precedents; and finally, to know the roadblocks that prevent following precedent correctly.
Texto completo enlazado
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.
Texto completo enlazado
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.
Texto completo enlazado
La dignidad en función del sujeto. Tres posibles sentidos para un control de convencionalidad
(Pontificia Universidad Católica del Perú, 2021-11-25) Lell, Helga María
This paper presents three categories in which the notion of dignity can be used in jurisprudence, depending on the subject to which it is ascribed: as institutional status, as a characteristic of the human being and as a characterization of other elements. In each one of the types, in the first place, a theoretical explanation is made that, although brief, tries to introduce some characteristics about the respective meaning. Second, it describes how the Inter-American Court of Human Rights has used the term «dignity» in the respective sense; that is, a review of the casuistry is included. Finally, some ideas are discussed. The methodology has been analytical regarding the use of the concept and is based on an analysis of the contentious cases and theadvisory opinions of the mentioned institution.
Texto completo enlazado
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.
Texto completo enlazado
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.
Texto completo enlazado
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.
Texto completo enlazado
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.
Texto completo enlazado
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.
Texto completo enlazado
Probabilidad lógica y prueba penal en Chile: ¿influencia de la cultura del common law?
(Pontificia Universidad Católica del Perú, 2021-11-25) Vera Sánchez, Juan Sebastián
This work will refer to the reception by Chilean doctrine and cases law of the logical probability from Anglo-Saxon evidence in criminal matters. I will try to justify that this has occurred from the interpretation of theprinciple of sufficient reason as a logical limit from sound criticism concept and I will also expose some difficulties detected.This research is intended to be a contribution to the dialogue between the legal cultures of the common law and civil law systems. This work also seeks to delve into a certain historical perspective of the evolution of the studies of criminal evidence in the Ibero-American criminal procedural systems, because it is necessary to generate links of communications between the perspectives of Anglo-Saxon evidence and continental procedural law to promote rationality and justice of adjudications in matters of the facts. The first part of this work will refer to logical probability in the context of the new evidence scholarship. The second part will refer to the proof of the facts in the civil law tradition, from the Enlightenment to the present day. The third part will refer to logical probability in Chilean doctrine and case law. The last part will discuss a possible reception of the concept of logical probability in criminal evidence in Chile.
Texto completo enlazado
Redes sociales, funas, honor y libertad de expresión: análisis crítico de los estándares de la jurisprudencia de la Corte Suprema chilena
(Pontificia Universidad Católica del Perú, 2021-11-25) Contreras Vásquez, Pablo; Lovera Parmo, Domingo
This paper aims to fill the gap in Chilean literature and contribute to the systematization and critical analysis of the legal criteria and standards of how fundamental law norms have been applied on social networks publications cases. To this end, it reviews the jurisprudence of the Supreme Court in cases of acciones de protección during 2020 and sets the applicable criteria. In most cases, the Court has accepted the claims of those whose personal honor has been affected and has ordered the removal of the publications from the networks. The article adopts a critical look at the jurisprudence, since some decisions do not pay enough attention to the protection of freedom of expression, especially by following an excessively legalistic criterion. In addition, we argue that the acción de protección has procedural limitations to deal with the problems of doxing in social networks.
Texto completo enlazado
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.
Texto completo enlazado
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.
Texto completo enlazado
Sopesando consideraciones en conflicto: derecho civil y common law frente al problema del vínculo entre las partes en acciones de enriquecimiento injustificado
(Pontificia Universidad Católica del Perú, 2021-11-25) Letelier Cibié, Pablo
This article seeks to demonstrate that considering the French approach to the general action in unjustified enrichment may help English law to deal with the difficulties raised by indirect enrichment cases. To do so, it introduces the problem of the link between the parties in English law and compares the German and French approaches to this problem. It is suggested that the cases where the general action in unjustified enrichment has been recognized by French case law are useful to identify a set of considerations that might allow deciding indirect enrichment cases without relying on abstract notions intended to be applied in every possible scenario.
Texto completo enlazado
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.