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Los acuerdos interinstitucionales en la práctica peruana de derecho internacional
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Mezarina García, Silvio Jesús; Rosales Zamora, Pablo César
In the Peruvian practice of international law, the universe of international agreements is not reduced merely to treaties. In that context, this article seeks to examine the international instrument par excellence that is celebrated between public entities of at least two States. Such accord, within the framework of Peruvian legislation, is called «interinstitutional agreement».First, this paper will study the main characteristics of this kind of agreement with the purpose of identifying its legal nature. Subsequently, it will examine some of the main challenges the use of an interinstitutional agreement faces: (1) the difficulty of classifying an interinstitutional agreement as a legal norm within the Peruvian system of law sources; (2) the possible confusion with other international instruments, such as twinning arrangements (a kind of interinstitutional agreement), memoranda of understanding or collaboration agreements; (3) the possible consequences than an interinstitutional agreement infers in regard to the commission of an international illicit act in the sphere of the international responsibility of the State.
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Convenios arbitrales desequilibrados en los contratos públicos bajo la ley de contrataciones del Estado
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Alejos, Oscar
The arbitration agreement has its origin, by nature, in the free will of the parties who want to summit their controversies to arbitration, instead of the ordinary jurisdiction. However, in the case of the public contracts, the arbitration agreement does not have the same characteristics of free will, as they have in civil contracts, precisely because of the public nature of the authority, which means that they are subject to the legality principle instead of having free will. In this paper I will try to prove that, as a consequence of it, our legal framework produces one-sided arbitration agreements which benefit the public authorities who draft those agreements. In fact, the lack of possibilities for the contracting party to negotiate the content of the agreement allows the public authority to draft such content in a way that only benefit them and negatively affects the contractor, creating a situation of inefficiency. The legislator, aware of the problem, has enacted rules that seek to recognize rights to the bidder and restrict the discretionary powers of the authority; however, those measures are not good enough. In this scenario, I propose a solution which requires legal regulation in the content of the aforementioned agreements, in a way that can be granted, from an ex-ante regulation, that the arbitration agreement will be balanced.
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Contra la in-diferencia de los objetos económicos. Una mirada desde el utrumque ius (Nueva Granada, siglos XVIII-XIX)
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Cellurale, Mariateresa
The treatment of the relicta pia (pious bequests assigning temporal goods to the purpose of salvation of the soul) in Nueva Granada in the eighteenth and nineteenth century, where properly studied according to its own dogmatic (a juridical one, originated in the Western canon of Roman descent), provides the opportunity to rethink the idea of secularization itself, as a form of transmission of material, juridical and political resources (land, iurisdictio), along the transition from the ancien régime to constitutional and legalist republics. The notion of «spiritual» or «spiritualized» goods, placed outside the commercium, among which land must be possibly included, as object of pious dispositions, refers to sacrum, the sacred, as an «antineutral» dimension of politics, law and justice; this dimension originates in the pignora of the pagan religio, a pactist and communitarian one, and lingers on in Christian relicta and relics, described and interpreted according to the set of concepts, principles and institutions of the ius commune, Roman and canonical, plural and casuistical; a system far from all blunt identification with the «law of the Catholic Monarchy», and whose rule continues for decades after the establishment of Republics in Hispanic America. In its effort to create modern «property», Bourbon laws intervene against customary and immaterial forms of gaining and circulating rights on land, neutralizing dispositives of the ancient sacrum, so announcing the transition of law to an abstract dimension, tending to depoliticization, due to legalism and positivism. The liberal State rising triumphant from the revolutions will eventually displace politics, previously established in rendering justice, to new territories, temporarily coextensive with the domains of (political) economy.
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Inquisición en Chile: un recorrido historiográfico y nuevas propuestas de estudio
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Cordero Fernández, Macarena
In 1570 the Spanish Crown decided to create, in the overseas spaces, the Holy Office of the Inquisition in order to control, effectively, the religious manifestations of the people and their social behaviors, bringing intolerance towards those who had different practices. However, initially it had only two district courts installed in the viceroyalties capitals of Mexico and Peru. The other places, captaincies and governorates, were controlled by commissioners dependent on Mexico or Lima, as appropriate. In the case of the Government of Chile, several police stations were deployed between the two dioceses. However, they were not efficient enough to achieve the objectives proposed in the inquisitorial ideology, on the one hand because of precarious material, and on the other hand because of the lack of ad-hoc officials to fill the positions. This led to the Chilean Governorate experience a more laxed control than other imperial territories. However, the climate of fear and prejudice among the inhabitants permeated the society generating intolerance and discrimination through other perspectives and through other social control devices, which survived in the republic and allow to understand —partway— the intolerance and discrimination in the current Chile. The present article will make a tour of the installation of the Holy Office in America, the historiographic status of the studies related to the Inquisition in Chile, the possible lines of investigation and the hypotheses to be tested.
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Del favor debilis al favor consumatore: consideraciones históricas
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Isler Soto, Erika
This paper refers to the historical evolution of the favor debilis principle from the Roman Law until our days. In this way, it begins with an examination of the favor libertatis principle and its incidence on the debtor’s responsibility, as well as the contractual interpretation in Ancient Rome. Subsequently, it refers to the incidence of Christianity in the moralization of the obligation. Then, the text refers to the persistence of the favor debilis under the modern model based on the conception of a free man that is able to protect its rights. Finally, its persistence in postmodernity is analyzed, which suggests changes in the law of obligations and contracts, which proposes also a new moralization of the contract, but sustained this time in the fundamental rights, as well as a renewed anthropocentric vision. Then, it refers to the bases of rules more favorable to the consumer and ends with the revision of the functions of the pro consumer principle: interpretation and conflict resolution mechanism of standards.
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Ejecución de la pena de prisión de adultos en Alemania: análisis de las leyes estaduales a la luz de la Ley Federal de 1976 y la jurisprudencia del Tribunal Constitucional Federal Alemán (BVerfG)
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Castro Morales, Álvaro
The article examines some of the legislative changes of the 2006 reform of adult prisons Law in Germany. The 2006 reform gave the Länder competence to regulate the execution of the prison sentence, generating a wave of new prison laws in the country. This article examines whether the new legislation regarding the adult prison sentences reflects the lineages of the federal law of 1976 and the case law standards of the BVerfG in this area.The aim is to know the issues where the criteria of federal law and BVerfG’s case-law influence state legislation, on the other hand, the issues where state laws have innovated. At the same time, it also intends to make a critical analysis of whether the adherence or innovation of state laws signifies an advance with respect to previous regulations.
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De comuneros a poseedores: reflexiones en torno a la construcción de la propiedad privada en la comunidad indígena De Soto a finales del siglo XIX
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Cacciavillani, Pamela Alejandra
In the province of Córdoba, a policy of dismantling the lands occupied by indigenous communities started to be implemented at the end of the nineteenth century. After the passing of two statutes in 1881 and 1885, the government of Córdoba started, after failed attempts, to initialize the disassembly of these lands. The aim of this paper is to analyze the process of private property construction by considering the articulation of local norms and the articles of the Civil Code. It then undertakes the study of the implementation of these provincial laws and the Civil Code in the community of Soto and attempts to show the different actors and norms that were implemented to build the legal category of private property.
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La política de los intersticios: «De liberalitate et parsimonia» en El príncipe, de Nicolás Maquiavelo
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Gaune, Rafael
This article proposes an annotated review of «De liberalitate et parsimonia», chapter XVI of Nicholas Macchiavello’s The Prince. It addresses how the Florentine author exposes the exceptionalities of misery and liberality as a mechanism of adaptation and interpretation of political reality. Both misery and liberality are part of a schema that expresses the nuances, exceptions, and twilights of real politics as well as the limits of human virtues.Also, this article dialogues with other Macchiavello’s texts (letters and Discorsi) and other chapters of The Prince.
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Tradiciones jurídicas y pervivencias oeconomicas en la genealogía constitucional. El caso de Tucumán en 1820
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Zamora, Romina
The nineteenth-century Spanish-American constitutionalism was inextricably related to the emancipatory process. The constitutional texts sought to establish limits to public powers that were forming in the independent territories, in mined paths of crossroads on which the newest historical and legal studies are elucidating motivations and objectives. From there, it is being discovered that constitutional projects did not ignored a four-hundred-yearold public order, but incorporated elements, subjects and above all, purposes: what is the objective of putting functions and limits to a public power separate from the domestic sphere? Can we trace the survival of an old domestic order —oeconomic— in the constitution, social and political order that should not be confused with the colonial fact? Therefore, it is important to periodize the constitutional journey, since although in the final products, the constitutions that came into force in the nascent Latin American States, the traces of an old mentality are not easily discernible, in the earliest projects they were not only the view but they were determinants in the definition of the subject of law and in the values —catholic, oeconomic— that had to be protected. The nineteenth-century Spanish-American constitutionalism was inextricably related to the preeminent place of the Spanish householder, catholic and land owner. On nineteenth-century Spanish-American constitutionalism, the prescriptive capacity of the catholic economy has weighed, like a sword of Damocles, for the determination of juridical principles.To highlight this hypothesis, it is necessary to perform an almost archaeological tracking of concepts and themes in the first debates on the fundamental law and the resulting texts. For this, we have chosen a provincial constitution, that of the province of Tucumán, written in 1820. Located halfway between the Peruvian space and the River Plate, Tucumán wanted to insert itself in the debate on the formation of the State by dictating its own constitution, as cover letter for a game of powers that was yet to be defined.
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John H. Wigmore (1863-1943): un mosaico que ilustra sobre el desarrollo del estudio comparado de la historia del derecho
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2019-05-27) Parise, Agustín
This paper approaches comparative legal history in light of the life and work of John H. Wigmore. This paper first presents a definition of comparative legal history. Secondly, this paper addresses a mosaic of interests that Wigmore lived and experienced. It therefore presents a main dialogue of this jurist with the law of evidence, another dialogue with auxiliary disciplines, and a common thread that is represented by his interest in legal history and comparative law. This paper therefore points to the role that different actors may have in the development of an autonomous discipline, while they interact with other actors in other jurisdictions.

Derecho PUCP. Núm. 82 (2019)

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