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Blockchain y mercados financieros: aspectos generales del impacto regulatorio de la aplicación de la tecnología blockchain en los mercados de crédito de América Latina
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Corredor Higuera, Jorge Armando; Díaz Guzmán, David
The purpose of this document is to analyze, based on technological criteria, regulatory standards and international recommendations, the impact of blockchain technology on credit markets and how such dynamics could have direct effects on Latin American markets, i.e., producing greater efficiency and financial inclusion in the region. For this purpose, the scope of blockchain technology will be contextualized, the possible applications of said technology in the financial markets will be developed, and finally the regulatory proposals on the application of said technology in the Latin American credit markets will be analyzed in relation to risk management and financial inclusion.
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La bolsa de valores de Colombia, su naturaleza y su posición sobre las sociedades comisionistas de bolsa: el planteamiento del Service Level Agreement (SLA) como posible forma de mitigación
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Rodríguez Rodríguez, Néstor David
Stock exchanges are vital agents for capital market development and the stock market of a country. This article defines «stock exchange» in Colombia and analyzes its characteristics from a legal, financial and market point of view. Furthermore, this article reviews the contractual relationship between the Colombian Stock Exchange and the market agents, especially with the Colombian Stock Brokerage Firms, in order to conclude the existence of both dominant position and a monopoly that favors the Colombian Stock Exchange. Finally, the «Service Level Agreement» is proposed as a way to alleviate both the monopoly and dominant position’s effects of the Colombian Stock Exchange. For the relevant purposes, this article was developed by using the dogmatic-legal investigation, jurisprudential, and legal analysis method, and through the use of methodological, descriptive, comparative and propositional tools.
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La caracterización del feminicidio de la pareja o expareja y los delitos de odio discriminatorio
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Pérez Manzano, Mercedes
This article aims to specify a coherent and useful interpretation of feminicide behavior (or as preferred by the author “femicide”), which is included, in a non -uniform manner- in several criminal definitions in Latin American legislations. Indeed, the author asserts the need for an individualized criminal protection of women against gender violence, and confirms the praiseworthy work it is being done in Latin America, yet femicide as a criminal offense in the region is not defined accurately. Thus, the author concludes this is the reflection of a criminal policy that suffers from inaccuracies, duplicities and, in some cases, excessive punitiveness. The author questions the criminal definition of femicide as the death of a “woman because of her condition as such” or other similar definitions that include the murder of a woman because of the mere fact of being a woman. When referring to the death of a woman committed by her partner or former partner, the author characterizes feminicide as a form of violence which constitutes an instrument of discriminatory domination, in other words, violence against women with the purpose of maintaining or re-establishing unequal power relationships or simply to reaffirm the discriminatory sense of his act, denying the victim his right to equality. From this perspective, the author discusses considering partner or former partner femicide as a hate crime, since the characteristic of this criminal definition is its collective dimension (the implicit threat to the collective) and the parallel fungible condition of the victim. In the opinion of the author, in partner or former-partner femicide the woman’s death is related to both the bias that exists towards women, how they should behaved (machismo), and what was expected of the victim (as herself). It is an individual phenomenon, of only one dimension. Under all these considerations the text culminates analyzing the Peruvian criminal type of femicide, acknowledging some successes but also reiterating their mistakes.
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Convergencias y divergencias del derecho de incumplimiento del Código Civil alemán con los Principios de Derecho Europeo de los Contratos y otros textos internacionales
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Barcia Lehmann, Rodrigo; Rivera Restrepo, José Maximiliano
The aim of the proposed investigation is to revise critically the German reform of the obligations (2002), establishing its main implications and relevance within the process of unification of European Law obligations and contracts, and especially of the so-called soft law.
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El deber de gestión del riesgo de corrupción en la empresa emanado de la ley 20393 de Chile: especial referencia a las exigencias de identificación y evaluación de riesgo
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Artaza, Osvaldo; Galleguillos, Sebastián
This article analyzes the criteria to determine when a company has failed to meet it is duty to manage the risks of bribery that arise over the course of it is economic activity. Special emphasis has been placed on the establishment of requirements for identifying such risks with the purpose of being able to adopt measures to counteract them later. The article analyzes comparative experience, both in relation to the technical guidelines that come from compliance studies, as well as the studies of criminology of corporate crime. Those experiences are explored to identify a series of structural and cultural variables that would predict the commission of crimes and, therefore, require their identification by the company.
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El decomiso de bienes relacionados con el delito en la legislación penal peruana
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) García Cavero, Percy
This article deals with the figure of forfeiture of assets related to crime. The point of reference is Peruvian criminal legislation. Although the analysis focuses on the substantive norms, some procedural considerations are also made.
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La dependencia: un nuevo riesgo de la seguridad social chilena
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Arellano Ortiz, Pablo
The protection of old age has become a constant concern in recent years. Within this, the protection of dependent adults is presented as a new social risk for social security. This approach is the one addressed in this work, for which the French model of dependency protection is used. It is argued that Chilean security can follow this approach. It is considered necessary to be able to identify and analyze the elements of dependency benefits of the French legislation that allow sustaining that the dependency can be protected by the Chilean social security system. The elements presented will allow the development of a more informed debate about the protection of an increasing group in Chile.
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Dogmática funcionalista y política criminal: una propuesta fundada en los derechos humanos
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Zúñiga Rodríguez, Laura
In this paper I intend to reflect on the inability of functionalist dogmatic currents to contain the ius puniendi of the State. I will also point out what are the reasons of the penal system itself that have led to give the legislator a carte blanche, which has led to an unbridled punitiveness, and what fundamentals are proposed to build a more rational criminal response. By reviewing the current situation of criminal dogmatics, the questions of the method and the object of study of this branch of knowledge, we come to the conclusion of an improper relativism of a knowledge that is intended to be scientific. The rational proposal against this relativism is a criminal policy based on human rights.
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Dominio sobre la vulnerabilidad del bien jurídico o infracción del deber en los delitos especiales
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Schünemann, Bernd
What is the basis of the crimes perpetrated by State officials (special delicts)? The answer to this question was not always important in the history of the penal doctrine, because only from the work of Claus Roxin was renewed the debate on this type of crimes. The different positions in discussion take their arguments back to the very same concept of a punishable act, whether it is understood as the injury of an interest or as the injury to the validity of the rule. Peru has not been a scenario alien to this debate, since the arguments of the various Supreme Court rulings in the proceedings against Fujimori give proof of this. In this article, it is argued that most special delicts should be understood as special guarantor crimes, because their authors, far from violating a duty, actually have control over the vulnerability of an interest, or over the supervision of a source of danger. This position, which starts from understanding crime as the injury of a legal right, considers that the margin of crimes of duty infringement is very reduced and, most of the times, it does not receive a criminal response. In this way, the position led by Günther Jakobs, which understands crime as an injury to the validity of the rule and, therefore, to special delicts, such as those based on the violation of a special institutional duty, suffers from two conceptual vacuums. On the one hand, it has not been able to outline a necessary differentiation between internal and external duties of an institution. On the other hand, it has not been able to explain why or how the individual injury of an institutional duty could harm the institution as a whole. Finally, we analyze the consequences of these approaches for the dogmatics of authorship and participation, the advantages and disadvantages of the reception of these perspective in the Peruvian and German legal systems; as well as, the validity of functionalism and the problem of private participant.
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Dos tesis de H.L.A. Hart sobre responsabilidad y castigo: 50 años después
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Figueroa Rubio, Sebastián; Torres Ortega, Ilsse Carolina
In this paper we make a critical assessment of some claims made by H.L.A. Hart in his book Punishment and Responsibility. Particularly, two specific theses on responsibility and punishment are addressed: the primacy of liability thesis and the mixed character of the justification of punishment thesis. We introduce both theses and we analyze their explanatory potential through scrutiny of criticisms they have faced.
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Prevención de riesgos laborales y derecho penal
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Oré Sosa, Eduardo
The huge amount of work accidents in Peru has not produced the implementation of policies aimed at reducing occupational accidents rates. Not only that, there is a certain passivity with informal business and persons who break the law, even when it creates risks to workers’ lives. Criminal Law is the best example, because criminal rules do not apply in fact. We have a symbolic norm; that means a situation that counteracts the preventive effect of Criminal Law. In other words, the legislator has weakened non-criminal instances excluding punishment even for the most serious behaviors in which workers’ lives are endangered. In this context, compliance programs play a big role in labor risk prevention and, therefore, in the reduction of criminal rates.
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La regla de oferta final en el panel eléctrico chileno
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Carrasco Delgado, Nicolás Ignacio Ariel
Efficient solutions are difficult to adopt, as they comprehend a large amount of information and require identifying an optimum point, which weighs up the benefits and costs involved. One means of simplifying this task arises with the final offer rule (the judge accepts the position of one or the other part, in a complete way). The Chilean electricity system provides for a rule of this nature to rule on disputes, which come before the so-called «electrical panel». This article will discuss the rule’s considerations of efficiency and the complexities, which the final offer presents for traditional procedural principles. A rule acclaimed by economists for taking decisions could cause lawyers to reconsider the mechanisms for resolving certain disputes.
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La tutela cautelar en el contencioso-administrativo de Nicaragua
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Arríen Somarriba, Juan Bautista
The system of precautionary measures in both Nicaraguan constitutional and administrative justice has been based on the traditional suspension of the administrative act, without taking into account that, for example, in administrative inactivity there is no act to suspend, but it has not been regulated as part of effective judicial protection, approved in the recent constitutional reforms, proper to due process and minimum procedural guarantees. This closed system has lagged behind in relation to the open nature of numerus apertus, of unnamed measures, foreseen in Spanish, Colombian comparative law, among others, above all in the regulation of the concurrence of causes of the danger of legal harm by the delay of the final judgment (periculum in arrears) and the fumus bonis iuris or appearance of the good right. In this context, before the approval of a new Nicaraguan administrative litigation regulation, we have the opportunity to influence the development of this matter, offering lege ferenda proposals.
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El uso de drones en España: el ámbito espacial de la ley penal
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Ruiz-Morales, Manuel Luis
The present article analyses various aspects which should be restated because of the widespread usage of drones in the current society, thus as the criminal consequences due to the use of these gadgets. Accordingly, the aim of this writing will be to give possible solutions to the problematic related to commission of crimes because of the use of a drone, paying attention to classical arguments about the criminal law, which is possible to implement. Therefore, a system is collapsible in which it will be preponderated a specific law above another, whereby it always will exist a criminal law applicable to avoid the impunity of the crime committed by a drone.
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Venga a nosotros tu reino: la justicia como fuerza anímica ausente en la enseñanza del derecho
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2018-11-28) Del Mastro Puccio, Fernando
This paper proposes an approach to justice as a driving force which moves people towards rectitude, balance and harmony. The hybris is presented as the opposite force, one that animates the subject towards perversion, domination and discord. Drawing on that perspective, we describe diverse aspects of legal education that elicit the hybris. Particularly, we argue that, through hidden curriculum channels, legal education fuels perversion, domination and discord within the inner world of law students. This effort seeks to contribute to legal education’s critical studies by providing a framework through which criticisms —usually unarticulated— on this matter can be integrated around the idea of justice as a driving force. Furthermore, it presents issues and experiences that are usually not recognized as problematic in the reflections about legal education. Finally, this is a highly relevant effort given the current social context in Peru, where the practice of law —both private and public— is going through a serious ethical crisis. This demands law schools to ask themselves, with genuine self-critical attitude, which role they are playing in this crisis.