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Algunas dificultades y riesgos derivados de la aplicación de las nuevas tecnologías en el proceso judicial colombiano
(Pontificia Universidad Católica del Perú, 2024-09-05) Guayacán Ortiz, Juan Carlos
The application of new technologies in the judicial process is a practice that became more common after the 2020 pandemic. This article analyzes 3 of the main vicissitudes that the use of these technologies has generated in Colombian judicial processes: as the sending of memorials through data messages, in relation to the so-called automatic notice of service, and about the vicissitudes that are occurring in virtual or digital hearings.
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Causalidad e imputación en la responsabilidad civil médica por infracción al deber de información en intervenciones médicas riesgosas
(Pontificia Universidad Católica del Perú, 2024-09-06) Ugarte Mostajo, Daniel
This paper addresses the problem of determining causation between a doctor’s breach of his duty to inform and injuries suffered by the patient as a consequence of the occurrence of uninformed risks. The paper criticizes the application of “hypothetical causality” as an explanatory figure for the causal link and also criticizes the idea of ‘hypothetical informed consent’ as a mechanism to exempt the liability of the defaulting doctor. Finally, the paper argues that the real problem in such case scenarios is not strictly a causation one, yet it has a normative and prudential nature. Accordingly, the solution does not require to establish a patient’s supposed a consent, but to correctly apply objective and subjective attribution criteria.
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El control de los sesgos cognitivos en el contexto jurídico procesal: medidas preventivas y correctivas y deberes de responsabilidad epistémica
(Pontificia Universidad Católica del Perú, 2024-09-05) Bustamante Requena, José Francisco
This work aims to critically reflect on the problematic relationship between cognitive biases and the procedural legal context, as well as the need to adopt measures to avoid their serious repercussions on judicial decisions. For this purpose, focuses on generality of the studies on the part of previous attempts at improvement are found to be problematic, which are mainly oriented towards the identification of possible actions that should be adopted on a case-by-case basis, in many cases their reasonableness and, above all, being discussed. Its relevance in the task of mitigating or reducing cognitive biases.To overcome these obstacles, two aspects are taken into consideration: the procedures and practices of judicial processes and the preservation of the guarantee and duty of impartiality and how the design of the processes and their dynamics —not always oriented to maximizing impartiality—allow the obtaining decisions compatible with said guarantee.Finally, an intervention scheme is outlined that brings together, on the one hand, the analysis of legal norms and rules (and their impact) on the modification and correction of some legal procedures and practices and, on the other, is complemented by a structured set of duties of epistemic responsibility.
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Distributive Justice and Richard Susskind’s Online Courts in the Brazilian Judicial System: an analysis of the Justice 4.0 Program
(Pontificia Universidad Católica del Perú, 2024-09-05) Santos Divino, Sthéfano Bruno
Richard Susskind’s Online Court is no longer just an ideal, but a policy for implementing and developing the judiciary alongside technology. Its application in the Brazilian legal system has been proposed, applied, improved, and constantly refined by the National Council of Justice. The aim is to understand the structuring legal concept of the Virtual Court, created by Richard Susskind, to identify its premises, foundations, and pretensions. It then shows how Susskind’s Virtual Court has been applied in the Brazilian legal system through the Justice 4.0 program. Finally, the current policies are briefly analyzed to verify their compatibility with due process of law. Thus, the research problem that guides this article and the proposed objectives can be expressed by the following question: has the Justice 4.0 Program complied with the foundations and fundamental precepts of Richard Susskind’s Virtual Courts, as well the Distributive Justice? The conclusion is that despite technological and legal advances, the Justice 4.0 Program is still precarious in terms of accessibility, transparency, and proportionality of justice. The method used is integrated research combined with bibliographical research.
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Evidências científicas sobre a participação de mulheres no setor brasileiro de óleo e gás (O&G): políticas, práticas e ações recomendadas
(Pontificia Universidad Católica del Perú, 2024-09-05) Serratine Grubba, Leilane
The objective is to understand Brazilian women participation in oil and gas (O&G) jobs and the existence of gender biases. What Brazilian scientific literature, legislation and organizations presents as understandings regarding women participation in O&G jobs? We performed a systematic review (Cochrane Collaboration) in the SciELO and Capes periodical databases. We evaluated the selected studies references, checking their inclusion relevance, and searched for Brazilian O&G organizations, agencies, institutes or associations to verify the journalistic articles or studies on the topic. Finally, we analyzed Brazilian legislation and its provisions, policies and actions. We used data analysis technique. There is a gap in research sources on the topic. We concluded that women participation in O&G is low because of the lack of mobility in the career, gender pay gap, discrimination and harassment, and the offshore isolation regime. The study contributes to the field, offering solutions based on the bottlenecks. Some suggestions are: predictability of scheduling, structuring flexible schedules and making career plans more flexible, objective criteria for promotion and independent reporting channels. The inclusion of diversity involves the participation of women in the sector in a broad sense (recruitment and retention).
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El fragmentado reconocimiento de la terminación unilateral en los contratos de consumo en el Derecho de Consumo chileno
(Pontificia Universidad Católica del Perú, 2024-09-06) Isler Soto, Erika
The article analyzed the regulation of the unilateral termination of the contract in Chilean Consumer Law, reaching the conclusion that its treatment is fragmentary and inorganic. However, unilateral termination is regulated whether it is based on the law or based on the contract. In the first case, it is granted solely and imperatively to the consumer, as a weak subject of the consumer relationship, under the figures of retract and withdrawal. There are, however, important differences between one and the other, linked to the eventual validity of an expiration period, the way in which it operates and its scope of application. The unilateral withdrawal enshrined by the pact is considered illicit if it is established exclusively in favor of the entrepreneur and lawful if its beneficiary is the consumer. When the power is conferred on both parties of the consumer relationship, its legality will have to be judged according to whether or not it generates a significant imbalance for the parties and whether it complies with the standards of good faith.
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La ilegalidad no formulada: Vivencias de estudiantes de derecho en su contacto con el mundo profesional
(Pontificia Universidad Católica del Perú, 2024-09-06) Del Mastro Puccio, Fernando; Quispe Valencia, Cindy
In their first contact with the professional world, law students experience diverse situations in which the law that regulates their internships is violated. In this research, we seek to understand how law students formulate those experiences, that is, the way in which they give them a particular meaning. Drawing from hermeneutical approaches to psychoanalysis, we start by recognizing that the way in which people formulate their experiences is not neutral: between different possible meanings, people elude those that show an intolerable image of themselves and their context. In this paper, we argue that law students don’t formulate the situations they experience, in which regulation and their rights are violated, as illegalities and violations of professional ethics standards. On the contrary, in different manners, they justify what happens, adapting to the events with fatalistic views of the professions’ environment, which is presented as not regulated. This occurs in an institutional context (that of law schools) where these problematic situations are not recognized and are not pedagogically addressed, which makes it more difficult for law students to formulate them differently. By gaining consciousness on how they formulate their experiences and trying different formulations, law students’ might develop and increase their agency, in order to deal with situations in which regulation is infringed in the professional context.
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El juez activo del código de procesos cubano en el estreno de la tutela judicial efectiva constitucional
(Pontificia Universidad Católica del Perú, 2024-09-05) Mendoza Díaz, Juan
The work develops the scenario that is generated in Cuba from 2019, when a new Constitution is approved, which abrogates the one in force since 1976. The new text regulates, for the first time, the effective judicial protection and due process within the chapter dedicated to the Guarantees of Rights and orders the ordinary legislator to dictate new rules of development in the different procedural areas, in charge of regulating the catalog of the new rights recognized in the Constitution. Derived from the constitutional mandate, Law No. 141, of October 28, 2021, “Procedural Code”, was enacted to regulate the processing of civil, family, commercial, labor and social security matters. The new Code, which breaks with the regulatory system of the preceding law, introduces a broad catalog of ordering and investigative powers, which are attributed to a model of judge described as “active”, whose powers are deployed throughout the new regulatory text and cover all procedural actions.
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Justicia Híbrida: La tecnología disruptiva al servicio del proceso
(Pontificia Universidad Católica del Perú, 2024-09-05) Martín Diz, Fernando
The change in the justice model is a reality. This change is totally determined by the emergence of new disruptive technologies and, mainly, by the possible integration of artificial intelligence solutions in the judicial process in functions of assistance to the judiciary. We are probably facing a new justice: hybrid justice. A procedural justice in which, from the non-negotiable supervision by a human (judge), technological applications will have an increasing role in the procedural activity, with the demands of legality and respect for fundamental rights as axes that enable their use with all the guarantees.
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Legitimación en la ejecución, título ejecutivo y escisión societaria: una crítica a la “teoría de la afirmación”
(Pontificia Universidad Católica del Perú, 2024-09-05) Valenzuela, Gabriella; Cavani, Renzo
This article aims to criticize the so-called “assertion theory” of civil procedure standing to sue, accepted by a significant part of the Peruvian jurisprudence, and consecrated by the Peruvian Civil Procedure Code. The paper seeks to show that this theory should be discarded since it has several conceptual problems, furthermore, it is not capable of giving an account of actual judicial practice when analyzing and deciding on the presence or absence of standing to sue. This becomes more noticeable in the field of judicial enforcement, and, to that extent, an example of corporate spin-off will be given to show that proving the existence of standing to sue concerning enforcement title can be complex, but that is essential for the judge to carry out this analysis.
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No todo es cautelar: hacia una tipificación de figuras distintas en perspectiva comparada
(Pontificia Universidad Católica del Perú, 2024-09-05) Valentin, Gabriel
This article presents and distinguishes measures that were traditionally all located within the precautionary genre, but that in recent years have attempted to be identified with greater precision. The distinction between these measures is relevant, among other reasons because their requirements are not identical, not all of them are admitted in the same cases and the procedure to adopt them must be different, for clearly justified reasons. The topic is approached in an exploratory manner, based on the selection of the Peruvian and Uruguayan systems.
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El paradigma constitucional del proceso civil. Bases teóricas
(Pontificia Universidad Católica del Perú, 2024-09-05) Delgado Suárez, Christian
This essay offers a feasible and verifiable theoretical basis for affirming what is called the fourth procedural paradigm, corresponding to the constitutional perspective of the civil procedure or the constitutionalization of it, as an overcoming of its previous classical and instrumentalist stages. To this end, through the interdisciplinary method, the research uses constitutional law, legal interpretation and procedural law to reshape the theoretical bases of the civil process and give it a constitutionalized value through the recognition of fundamental procedural rights as directly applicable norms containing optimization mandates. If it is a question of constitutionalizing the civil procedure, the essay, then, does not only seek the safe passage through the account of the so-called procedural guarantees. On the contrary, the functional or utility method applied to the same imposes that the contribution is to recognize the judge of the Constitutional State the duty of judicial protection even of the same fundamental procedural rights in the face of the defect or absence of rules that should implement and densify the principle of effective jurisdictional protection. This will make it possible to deconstruct and reconstruct concepts such as the fundamental right to effective judicial protection and the right of action, removing from them the slogan of mere guarantees that allow access to jurisdiction, to give them the character of optimization mandates directly executed by judges. It is, then, about the protection of the procedure, within the procedure, by the judge.
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El proceso de reparación colectiva de las grandes catástrofes
(Pontificia Universidad Católica del Perú, 2024-09-05) Vitorelli, Edilson
This paper analyzes the case of the Brumadinho disaster, occurred in Brazil in 2019, which caused the death of 272 people, in addition to serious environmental damage. The Brazilian collective process system, formed predominantly by public institutions, responds with the prompt prosecution of collective actions, which resulted, in a period of two years, in three collective agreements. This article analyzes, through bibliographical research and primary data, the elements of the Brazilian collective litigation model that contributed to the success of the case and how they could serve as inspiration for other countries.
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Prueba informática: el problema de su fiabilidad
(Pontificia Universidad Católica del Perú, 2024-09-05) Alfaro Valverde, Luis
The data contained in computer and technological devices are increasingly used as evidence in judicial processes, being decisive in the final decisions of judges. This is the so-called computer test. These are often valued uncritically as mere documentary evidence, without considering, among other things, their vulnerable and complex nature. Among the different problems that exist about this test, this study focuses specifically on those related to its reliability. Firstly, the aspects related to the nature of the computer test are examined, as well as its rational assessment. Then, the central question of its reliability is reviewed, related to the risk of its manipulation and its impact on it. Finally, some instruments are analyzed that allow their reliability to be adequately managed, such as expertise, the electronic signature and the intermediation of the notary in the certification of digital evidence.
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La valoración judicial de la prueba producida anticipadamente en el derecho brasileño
(Pontificia Universidad Católica del Perú, 2024-09-05) Zufelato, Camilo; Oliveira, Fernando Antônio; Dantas de Maio Martinez, Victor
The Brazilian law, through the 2015 Code of Civil Procedure, introduced several changes regarding the early production of evidence. By expanding and flexibilizing the situations in which anticipatory proof is possible, the new legislation eliminates the exclusive precautionary nature of this procedure, thus giving rise to a new autonomous evidentiary action. This fact redefines the concept of evidence in Brazilian law, and this article aims to specifically analyze some aspects of the innovations introduced by the new Code, seeking to draw comparisons with the system of early production of evidence in Peru.