Derecho PUCP. Núm. 88 (2022)
URI permanente para esta colecciónhttp://54.81.141.168/handle/123456789/186395
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Ítem Texto completo enlazado Conceptualizando la violencia y la violencia física: un análisis comparado de las legislaciones de Perú y Chile(Pontificia Universidad Católica del Perú, 2022-05-26) Fernández Ruiz, José ManuelThis research seeks to contribute to identifying the central elements of the phenomenon of violence by conceptualizing physical violence. In this way, by identifying the elements for the concept of physical violence, it also identifies the elements for a more general conception of violence and its various manifestations. While it seems intuitively obvious what constitutes physical violence, several ambiguities appear under a more detailed examination. A simple question can illustrate this: are all homicides acts of physical violence? While an intentional homicide caused by a gunshot is an act of violence, is it also a death caused in a traffic accident? There is no obvious answer to this second question. In order to develop an answer, it is necessary first to conceptualize physical violence, but there is no specific research that clarifies its meaning. The research contributes to fill this gap in the literature, identifying elements to conceptualize what physical violence is through philosophical and comparative analysis, concluding that these elements, duly modified and particularized, can be used to understand different forms of violence.Ítem Texto completo enlazado El delito de financiamiento prohibido de organizaciones políticas(Pontificia Universidad Católica del Perú, 2022-05-26) Sandoval, Juan CarlosThis article is a first approach to the study of criminal figures related to the corrupt financing of political parties in Peru. To this end, the text focuses on the analysis of the basic modality of the crime of prohibited financing of political organizations (CP, art. 359-A), which was created by virtue of Law 30997, of August 5, 2019, and that punishes, in short, those who request, accept, deliver or receive financial resources from prohibited sources to benefit a political organization. The incrimination of this conduct is not an isolated case in comparative law, so the work begins with a review of the international anti-corruption policy to determine the state of the art in the fight against the phenomenon of corruption in economic and financial functioning of political parties. Next, some critical considerations are formulated on the treatment provided by both the Constitution and Law 28094, on political organizations, of November 1, 2003, to the problem of the economic support of political parties. The previous topics provide the conceptual and normative bases that allow a better understanding of the elements of the object type and the subjective type of the crime typified in the article 359-A of the Penal Code. This contribution ends with the exposition of the main conclusions that have been reached.Ítem Texto completo enlazado Equilibrios epistémicos frente a la crisis ambiental: un estudio a partir del Caso del Atún Rojo del Sur del Tribunal del Mar en la antesala de sus cuarenta años de creación(Pontificia Universidad Católica del Perú, 2022-05-26) Villarreal, Julio FranciscoThis paper attempts to demonstrate that the solution rendered by the International Tribunal for the Law of the Sea in the Southern Bluefin Tuna Case, although epistemically superior to the one that would have involved only considering the experts advising of each of the opposing parties dicta, would, in any case, prove to be sub-optimal. Indeed, such a forum, despite the provisions to that effect of the United Nations Convention on the Law of the Sea 289 article, would refrain from consulting and discussing with the experts the merits of the question submitted to its consideration. As a direct implication of such decision, the International Tribunal for the Law of the Sea could not have contributed to the knowledge, by the opposing parties, of the merits of their claims in a transcendental manner to the terms in which those parties raised, initially, their own claims. As a straight consequence of such a decision, the International Tribunal for the Law of the Sea deprived itself of any possibility of providing a truly consistent contribution to such dispute resolution, regardless of the following Arbitral Tribunal’s decision merits. In this sense, this paper attempts to prove the strict causal relationship between failing to consider the otherness dictum and making epistemically deficient decisions by means of the International Tribunal for the Law of the Sea ruling in the Southern Bluefin Tuna Case.Ítem Texto completo enlazado Una «estrategia restaurativa» en el ámbito de la responsabilidad penal de personas jurídicas: una aproximación teórica(Pontificia Universidad Católica del Perú, 2022-05-26) Artaza, OsvaldoThis article analyzes the possible political-criminal benefits associated with the admission of a restorative strategy in the area of corporate criminal liability. To this end, certain shortcomings detected by the specialized literature are addressed, which would be associated with a strategy of reaction to corporate criminality that focuses exclusively on the imposition of disabling sanctions for corporations. In this respect, we will delve into the problem of the lack of knowledge of fundamental interests for the resolution of the conflict, especially that of the stakeholders, and the problem of the possible ineffectiveness of such a strategy in terms of reducing this form of criminality. Then, possible solutions to face the detected problems will be studied, distinguishing between a “reparative” and a “restorative” strategy to determine why the latter could be particularly beneficial for the achievement of the objectives commonly associated with criminal liability of corporations.Ítem Texto completo enlazado Museos virtuales y la necesidad de un nuevo límite o excepción al derecho patrimonial de autor(Pontificia Universidad Católica del Perú, 2022-05-26) Solórzano Solórzano, Raúl; Rejanovinschi Talledo, MoisésThrough this research, first a review of the definition of a museum is made, as well as its legal classification. Subsequently, the legislation on copyright applicable to museums is analyzed in order to determine the current possibilities of virtualization of the works that they have in on-site exhibition. Upon verifying the existing problems, the need for a new limitation or exception to the economic rights of author is raised to encourage the reproduction and public communication of works by museums and private collections to promote access to culture.Ítem Texto completo enlazado El pedestal y la jaula: movilización feminista por la igualdad y la disputa por los significados constitucionales en los Estados Unidos de América en las décadas de 1960 y 1970(Pontificia Universidad Católica del Perú, 2022-05-26) Zara, Nicolás DanielThis article aims to propose a reframing of certain aspects of feminist mobilization for equality in the United States of America in the decades of 1960 and 1970, considering some elements of social movements theory and democratic constitutionalism. It analyzes the ways in which the feminist movement’s narrative succeeded in permeating in the constitutional culture of the United States, changing through it the meaning of the U.S. Constitution. In doing so, it focuses on the strategies used by legal feminism in constitutional litigation, on the efforts for the sanction of the Equal Rights Amendment (ERA), and on the interactions between both processes. It addresses the recent revival of the ERA, as well as its text’s shortcomings. Finally, based on the analysis carried out in previous sections, it provides some arguments in support of a new alternative to the old ERA.Ítem Texto completo enlazado La política contenciosa y la contramovilización legal conservadora del aborto en Colombia(Pontificia Universidad Católica del Perú, 2022-05-26) Beltrán y Puga, Alma; Bohórquez Monsalve, VivianaThis essay analyzes the legal mobilization of conservative activists against abortion in Colombia from 2006 to 2020. In the first part, it examines in depth the nullities presented before the Constitutional Court and the State Council by conservative lawyers against reproductive rights of women. In the second part, it studies the demands of unconstitutionality presented before the Constitutional Court to protect life from the moment of conception. All these legal strategies consolidated a legal counter-mobilization to prevent or deny access to abortion. Based in the literature of social movements and their use of law, the article seeks to understand the dynamics of contentious politics where social movements dabble, dividing them in two cycles depending on the legal strategies used and the actors involved. In this context, an explanation is given of why the judicial forum is privileged over the legislative to promote gender backlash with the intention of limiting reproductive rights of women by Catholic activists in Colombia. Their legal strategies are, thus, theoretically understood as a legal counter-mobilization.Ítem Texto completo enlazado El problema del mal moral y del consentimiento en la violación sexual: un análisis filosófico(Pontificia Universidad Católica del Perú, 2022-05-26) Sotomayor Trelles, José EnriqueThis article addresses the problem of the moral wrong present in rape. To do so, it undertakes an analysis of John Gardner's proposal on the subject. Then, identifying what Gardner calls a pure case of rape, it explores the nature and characteristics of consent as a normative transformer. To this end, it addresses the discussion, within the philosophy of action, on what is the ontology of consent. Finally, and as a consequence of holding that consent is a mental state, some problems related to the knowledge of other people’s mental states, traditionally addressed as the problem of other minds in the philosophy of mind, are raised. Some consequences for the evidentiary analysis in cases of rape crimes are drawn from this analysis.Ítem Texto completo enlazado Sistematicidad y técnica legislativa en materia penal: un estudio a partir de los delitos nucleares de la Ley de Tránsito chilena(Pontificia Universidad Católica del Perú, 2022-05-26) Mayer Lux, Laura; Vera Vega, JaimeThe objective of this paper is to examine the principle of systematicity as a criterion of an adequate legislative technique in criminal matters, regarding the norms that regulate nuclear crimes of vehicular traffic in Chile. The analysis focuses on the rule that establishes the effective enforcement of the custodial sentences imposed on some of these crimes, which breaks with the system of crimes regulated in Chile, that is generally based on another class of criminal reactions. The study uses fundamentally a dogmatic methodology and a recourse to legal, jurisprudential and doctrinal sources. Among its results, the article highlights the relevance that the principle of systematicity has for the creation of criminal laws, either as such or in relation to other principles of law, like equality before the law, proportionality or certainty. It also concludes that the violation of the principle of systematicity affects both formal and substantive aspects, that is, relative to the instruments that serve as a source for criminal norms and their content.