THĒMIS-Revista de Derecho. Núm. 80 (2021)
URI permanente para esta colecciónhttps://hdl.handle.net/20.500.14657/187279
Tabla de Contenido
Derecho público y emergencia sanitaria
Derecho y contextos urbanos
Perú: legislación pendiente
Artículos ganadores: concurso generación del bicentenario
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Ítem Texto completo enlazado Análisis de las condiciones de competencia en el mercado de producción del oxígeno medicinal peruano en el contexto de la emergencia sanitaria y políticas públicas pendientes(Pontificia Universidad Católica del Perú, 2021-09-28) Huamán Pérez, Rocío; Antayhua López, OscarThe Political Constitution of Peru in its article 61 regulates the duty of the State to facilitate and monitor free competition, combating those practices that limit it and the abusive exercise of monopolistic or dominant positions. However, not all markets present conditions of perfect competition, as in the case of the medical oxygen production market in Peru, which is characterized by being oligopolistic, specifically a duopoly. This situation leads us to reflect on the role of State in economic matters. In this article, the authors analyze the characteristics of the oxygen market in Peru, with special emphasis on oxygen production, existing suppliers and barriers to market entry; Likewise, the relevance and necessity of the policies arranged by the State in order to face the health crisis and allow a distribution of medicinal oxygen that can satisfy the population's demand is evaluated.Ítem Texto completo enlazado Aproximaciones a la viabilidad jurídica y económica de la aplicación del consentimiento presunto como política pública de fomento y promoción de la donación de órganos y tejidos en el Perú(Pontificia Universidad Católica del Perú, 2021-09-28) Paredes Aranda, Braylyn; Rojas Morán, Beremiz; Valverde Encarnación, GianpierreIn this article, the authors address the problem related to the low number of organ and tissue donations in Peru. A statistical review shows that the rate of organ and tissue donations is lower than in other countries in the region, while patient demand is higher than the number of organs available. In this sense, from a constitutional and economic point of view, the authors develop the feasibility of implementing a public policy that postulates the substitution of informed consent for presumed tacit consent. To this end, first, they study the legal categories involved, their legal treatments, etc. Secondly, they analyze the current context of organ donation in the country, its operational shortcomings, lack of regulation, etc. Finally, they analyze the need and legal feasibility of formulating and implementing a change in the paradigm of the regulation of donations with the adoption of presumed consent as a central axis.Ítem Texto completo enlazado La colaboración entre las entidades y los proveedores en las contrataciones del Estado: una necesidad puesta en evidencia por la pandemia del COVID-19(Pontificia Universidad Católica del Perú, 2021-09-28) Medina Flores, Juan CarlosThe COVID-19 pandemic has highlighted the serious problem of lack of collaboration between the parties in a public contract. The parties faced unpredictable situations and the need to make agile decisions to mitigate or reduce the impacts of the pandemic; notwithstanding, in many cases they showed conflictive behavior rather than a collaborative one that prioritizes the efficient in the contract management to achieve the attention of the emergency, the dynamism of the economy, the generation of jobs, the investment in public spending, among others. Therefore, it is important to analyze the collaboration mechanisms in public contracts that are currently available in the law, as well as those that can be implemented, without losing sight of the fact that building trust among the actors in the public procurement system is essential to align the interests of the parties and generate effective cooperative management. The article will analyze the main concepts about contract collaboration and the different tools that can foster it.Ítem Texto completo enlazado COVID-19 y libertad de culto de Chile: la jurisprudencia de la Corte Suprema(Pontificia Universidad Católica del Perú, 2021-09-28) Poyanco Bugueño, Rodrigo AndrésThe pandemic has brought different challenges to the jurisdictional authorities, among them, solving controversies about the health measures adopted by the different Governments. The author focuses on the fundamental right to freedom of worship and how it was affected by the measures adopted by the Chilean Government as a result of COVID-19. To approach the problem, recent jurisprudence is used, both from the Court of appeals and, mainly, from the Supreme Court of Chile. Through the jurisprudential analysis, the change of position of the Supreme Court is denoted, from a vision according to the restrictive measures dictated by the government, towards a position of defense of the fundamental right to freedom of worship, based both on the Political Constitution of Chile as in international human rights treaties.Ítem Texto completo enlazado Deconstruyendo el derecho al agua potable en el Perú: nuevos retos a nuestros doscientos años como República(Pontificia Universidad Católica del Perú, 2021-09-28) Matayoshi Collazos, Andres; Mejia Briones, Janneth; Chuquitapa Guzman, JoséIn 2017, the right of potable water was incorporated in our Constitution. This research seeks to identify the problem of the realization of the right to potable water in the peruvian reality and the normative impact from its incorporation in the Constitution, with an emphasis on the current situation in the context of the pandemic caused by COVID-19. An analysis will be made of the role of rights in the model of Constitutional State Governed by Rule of Law, as well as of international standards and comparative experience at both the normative and jurisprudential levels. Finally, public policies and the normative and jurisprudential development of the right to potable water in Peru will be developed, culminating in the proposal to establish a constitutionally protected minimum of the right to potable water as a formula for its realization.Ítem Texto completo enlazado El ‘derecho a la ciudad’ y su reconocimiento dentro del ordenamiento jurídico peruano(Pontificia Universidad Católica del Perú, 2021-09-28) Rioja García, Luis Fernando; Segura Martel, Ximena Nicole; Vílchez Vargas, Ximena Alejandra; Ortiz Sánchez, Iván; Lau Gastelo, Erick; Fernández Salas, José Carlos; Ramírez Corzo Nicolini, Daniel; Devoto Ykeho, AndrésThe following article evidences the importance of considering the concept and the components of the right to the city in the Peruvian legislation. For that purpose, it considers the growing recognition of the importance of cities under the ‘New Urban Agenda’ and the search for assurance of decent life quality for the inhabitants of a city. Moreover, the authors propose to overcome the conception of the city as a physical space where its sole purpose is to produce individual wealth and benefits, for its recognition as a space of interaction and citizen development as a collectivity. Based on this definition, the right to the city implies a guiding principle that seeks to generate spaces for community participation, a fair distribution of urban charges and benefits, and the promotion of active citizenship.Ítem Texto completo enlazado Derecho a la salud y pandemia: análisis a la constitucionalidad del pasaporte sanitario(Pontificia Universidad Católica del Perú, 2021-09-28) Díaz Giunta, RenzoThe pandemic caused by COVID-19 has been a devastating period for humanity and its human rights. In particular, considering that it has triggered various events that have had a negative, concrete and direct impact on the rights of citizens. Therefore, in this article, the author develops the right to health, its importance, and the obligation of all States to guarantee and protect this right. More specifically, the author analyzes the implications that the pandemic has had on the right to health of the population worldwide. In addition, he explores the cases of Chile, France, Spain, and Peru in the implementation of the health passport. Following the previous line, it analyzes the recent sentences of the Constitutional Council of France and the Supreme Court of Spain, where they evaluate the constitutionality of the sanitary passport. Finally, from the perspective of the general standards of constitutional law shared by the legal systems, the author analyzes the constitutionality of the health passport.Ítem Texto completo enlazado El desarrollo urbano sostenible en el bicentenario del Perú independiente: un asunto prioritario en la agenda política 2021-2026(Pontificia Universidad Católica del Perú, 2021-09-28) Villalobos Villalobos, Vicente BrayanThe disorderly and spontaneous grow of cities and population centers is a characteristic of the Peruvian urbanism that is impossible to deny. In this regard, the housing deficit and the informal occupation of land, the impairment of the environment, and the deterioration of the cultural heritage of the nation are problematics that require priority attention. In this article, the author aims to expose the inefficient planning of the Peruvian State in urban development based on the three problematic axes mentioned above. Along the same lines he argues that a key factor in these problems has been regulatory inconsistency; therefore, it develops the main historical antecedents of Peruvian urban planning legislation, in order to demonstrate that state disarticulation in the management of land use is a characteristic of national urbanism. Lastly, he addresses the reasons why he considers that the enactment of the recent Law on Sustainable Urban Development, is the beginning of a serious urban planning in Peru.Ítem Texto completo enlazado La documentación en el contrato de transporte aéreo de personas y de mercancías(Pontificia Universidad Católica del Perú, 2021-09-28) Marco Arcalá, Luis AlbertoThe need of documentation is evident in all different aspects and activities inside of air carriage of passengers and goods, including, of course, the contracts for the provision of this kind of services. However, it is also true that the most relevant documentary instruments in these contracts not only have their own peculiar features, but are also immersed in a process of evolution marked by various phenomena. In this article, the author analyzes the main documentary in the contracts of air carriage of passengers and goods, with special focus on its legal character, functions, composition, way of working, among others. In the same way, he addresses the phenomenon of documental digitization and the effects the COVID-19 pandemic on the different aspects of air carriage. Lastly, he formulates a critical assessment in concerning with the future prospects of this field.Ítem Texto completo enlazado La implementación de las políticas públicas adoptadas por el Estado peruano frente al impacto del COVID-19 en la violencia contra las mujeres e intrafamiliar(Pontificia Universidad Católica del Perú, 2021-09-28) Huaita Alegre, Marcela; Hancco Rodríguez, NorelyIn this article, the authors analyze the response of the Peruvian State through the implementation of public policies with the aim of counteracting violence against women and members of the family group, triggered by the context of the COVID-19 pandemic. Initially, the authors study the measures taken immediately by the Peruvian State during the start of the pandemic and place them in the Latin American context through a comparative perspective. Secondly, these measures are analyzed in detail in order to evaluate the limits and success in the effective implementation of said policies during the first year of the pandemic.Ítem Texto completo enlazado Perú: elecciones 2021 en el contexto de la pandemia de COVID-19(Pontificia Universidad Católica del Perú, 2021-09-28) Acevedo Rojas, Elba Sissi; Huaman Porras, Diego Alejandro; Hurtado Ormeño, José Danid; Tintaya Quispe, Ramiro GustavoThe holding of the parliamentary and presidential elections in Peru during the pandemic caused by COVID-19 was a controversial issue, to the point that its suspension or postponement was put into debate, especially if we take into account the effects that could have generated both in the right to vote as in the right to health. In this context, various constitutionalists, academics and international organizations pointed out that it was necessary to strengthen democratic institutions by exercising the citizen's right to vote, but it was necessary to have biosafety protocols to avoid further contagion. From an international perspective, there were successful cases in the implementation of the electoral process in 2020, South Korea being one of them as it used electronic voting, verifying, with subsequent tests, the low rate of contagion. The authors point out that this solution, in Peru, has been incorporated since 2010. However, it has not yet become widespread, which is why it could not be applied in the first and second electoral rounds in 2021. For this reason, in this article, the authors analyze the actions taken by the State in order to carry out the elections from the perspective of fundamental rights.Ítem Texto completo enlazado Presentación. THEMIS Revista de Derecho; Núm. 80 (2021): Derecho, Políticas Públicas y Covid-19(Pontificia Universidad Católica del Perú, 2021-09-27) Consejo EjecutivoPresentación del nuevo número por parte del Consejo Ejecutivo mayo de 2022.Ítem Texto completo enlazado La reforma pendiente de energía: generación distribuida(Pontificia Universidad Católica del Perú, 2021-09-28) Gamio, PedroEnergy is an essential input to meet the various basic needs, which is why it’s fundamental for a country’s development. Furthermore, within this area, the use of renewable energies has been on the rise as their developments continues to progress. In that way, it is now possible to resort to renewable energies in distributed manner to boost the energy sector. In this article, the author focuses on analyzing the problems faced by distributed generation in Peru. In this way, he analyzes the key actors, delves into the regulatory framework in place and addresses the existing barriers for the implementation of distributed energy. Finally, he proposes a matrix of solutions to drive towards a decentralized, distributed and accessible for all Peruvians.Ítem Texto completo enlazado Régimen municipal y gestión local: análisis de las capacidades de los gobiernos del conurbano bonaerense en el contexto de la pandemia de COVID-19(Pontificia Universidad Católica del Perú, 2021-09-28) Amaya, Paula; Aranda, FedericoThree decades ago, following a constitutional reform, municipalities in Argentina went from being administrative delegations to enjoying full autonomy. With the passage of time, the lack of modernization at the local level and the arrival of the pandemic caused by COVID-19 have led to the emergence of new demands and social expectations. In this scenario, the analysis of the management and restructuring of municipal government priorities is of vital importance. In this article, the authors analyze, on the basis of a field research carried out during the second semester of 2020 and the first semester of 2021, the management of four municipalities in the south of the Buenos Aires conurbation. To this end, they base their analysis, among other criteria, on the planning and evaluation of results; the design of organizational structures; and the definition of priorities, sectoral objectives and tasks in terms of public employment. In addition, they reflect on possible alternatives to improve the institutional capacity of these governments and question the structural limits that operate as a barrier to such improvement.Ítem Texto completo enlazado Talentos y virtudes: la necesidad de profesionalización del servicio civil en el Perú(Pontificia Universidad Católica del Perú, 2021-09-28) Rastrollo Suárez, Juan JoséThe professionalization of the civil service in Peru has had a remarkable development in the last decades. This process guarantees the proper functioning of the state apparatus, the fight against corruption and the institutional reinforcement. Nevertheless, there are historical conditions that inhibit the development of this necessary process, such as political instability, lack of independence, lack of legal cohesion and inequality. In this article, the author examines the process of the formation of public bureaucracy in Peru, in its historical context since the country's declaration of independence. Then, he studies the development of public management since the Constitution of 1993, focusing on specific legal norms such as Legislative Decree 728 of 1997, which began the process of ‘laboralization’ of the civil service, or Statute Law 30057 of 2013, which gave birth to the corps of public managers and regulated many competences of the National Authority of the Civil Service. Finally, based on the study of legislation and jurisprudence, the author revises certain key elements for a future reform of public employment in a context of crisis.Ítem Texto completo enlazado Vacuna contra el COVID-19: ¿el ordenamiento jurídico peruano permite su aplicación obligatoria?(Pontificia Universidad Católica del Perú, 2021-09-28) Valero Quispe, Christian DennisThe health sector was not the only one affected by the COVID-19 pandemic, the rapid spread of this virus had an impact on education, the economy, work, tourism, among other sectors. This situation led various pharmaceutical laboratories around the world to initiate research to develop a vaccine. As a result of these international investigations, in the middle of 2020, a vaccination process was carried out; meanwhile, in Peru this process began at the beginning of 2021. In this article, the author studies whether the Peruvian legal system allows the mandatory application of the COVID-19 vaccine. In order to achieve that, a balancing of rights was made between the individual freedom of those who do not wish to be vaccinated and public health. Additionally, he maintains that a measure such as restricting access to closed spaces must consider the principles of reasonableness and proportionality. In this way, it is concluded that it is not possible to coerce a person to take a medical treatment when they have not expressed their consent. However, it is possible to impose restrictions such as prohibiting access to means of transportation or admission to universities for people who are not vaccinated.