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Waldron y la dignidad: el problema del fundamento de los derechos humanos
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Chávez-Fernández Postigo, José Carlos
Since no more than ten years Jeremy Waldron has been working on a legal and philosophical conception of dignity that conceives it mainly as «rank» or «status», and that understands it —not exclusively, but significantly— as the basis of human rights. This approach is proposed as an alternative to the rival conceptions of dignity that are currently found in legal scholarship and in the rulings of high courts, such like the Kantian, the Roman-Catholic and the Dworkinian. This work will try to prove that, despite its great hints, the Waldron’s thesis about dignity has at least three relevant problems which arise from the insufficient clarification of what he calls the «underlying idea» of human dignity, which I will classify as: that of «weakness», that of «harmonization-determination», and that of «secularity». The goal will be to show that it is possible to test a conception of Waldron’s «underlying idea» of human dignity that, resorting to an Aristotelian notion of human nature and without renouncing to the positive features of Waldron’s approach, overcomes successfully the problems mentioned.
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Compliance, empresas y corrupción: una mirada internacional
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Sanclemente-Arciniegas, Javier
This paper raises a reflection on the legal notion of compliance and the way in which it involves companies in the fight against corruption. That is a new global regulatory trend that provides useful tools to address different legal fields, hence some authors consider it a new branch of law. The notion is articulated around a new conception of companies that tends to effectively engage them with the protection of legally relevant values. These postulates are especially relevant in the fight against corruption. In this area, the tendency to establish private economic power as an agent in the service of the protection of the general interest is clearly manifested. For this, on one hand, the common legislative movement at the international level is analyzed, identifying norms that have been adopted by different states in the world in order to involve companies in the fight against corruption. On the other hand, we analyze the normative and institutional devices that companies have adopted in order to meeting those obligations. There we highlight the way in which companies are transformed from entities dedicated to obtaining particular benefits to actors that serve interests of the whole society, when addressing the risk of regulatory non-compliance.
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La inocuidad: principio informante y de adecuación de deberes preventivos y buenas prácticas en la atención remota y presencial del consumidor durante el contexto de la pandemia de COVID-19
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Isler Soto, Erika
As the principle of safety is an informing guideline in the Consumer Protection Law, this text reviews its concretization in the rights, duties and good practices that take place with regard to consumer care in the context of the COVID-19 pandemic. With that objective, it begins with an approach to the pandemic and its main characteristics. Subsequently, the safety principle is explained in relation to three aspects: The consumer’s personal and patrimonial integrity, and its main characteristics; its scope in the Chilean consumer protection system; and the notion of vulnerable consumer as an adequacy criterion. This topic is then explained in a general way and with regard to remote and face-to-face market. In that sense, this study postulates that, in all these dimensions, the behavior of suppliers and consumers must be adjusted to the safety imperatives that prevent risk for the consumer and the rest of the country. That is derived from the character of public order that has the protection of the personal and patrimonial integrity of the consumer.
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Régimen constitucional de la moneda y estabilidad del nivel general de precios en Perú
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Rodríguez Cairo, Vladimir
The constitutional regime of currency is one of the most relevant economic institutions in a country because it institutes an order, model, or monetary system aimed to preserve price stability and, thereby, to generate confidence, security, and certainty in the economy. Thus, this research established the implication of the constitutional monetary regime in the general level of prices and individual wellbeing. The study design was nonexperimental because the variables were not manipulated, retrospective because it was based on secondary data, analytical because it was a bivariate analysis and cross-sectional because the data was obtained at a single moment. Likewise, the scope was correlational because of the degree of relationship between the study variables and explanatory since it was determined by the causality that was established between these variables. The currency was founded as a spontaneous order (merchandise money) and a constructed order (fiduciary money), as well as the legal and economic content of the currency’s constitutional regime. The main result was that monetary stability, in addition to being a fundamental right, is a constitutive commitment that fosters the creation of basic values in society, and its preservation has allowed the purchasing power of the currency to be stable for the last twenty seven years, thus contributing to the well-being of the population. Therefore, price stability has been the most relevant achievement of the current monetary regime.
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¿Real malicia? Descifrando un estándar foráneo de protección del derecho a la libertad de expresión para su aplicación en Ecuador
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Ortiz Custodio, Jose David
Decision N° 282-13-JP/19, issued by the Constitutional Court of Ecuador. introduced the actual malice standard originated in the New York Times Co. vs. Sullivan case to analyze possible limitations to the right offreedom of speech. This standard applies in cases of publication of false and defamatory statement of facts on issues of public interest. The Constitutional Court ruled that persons involved in matters of public interest have at their disposal the mechanisms of reply and rectification to defend their reputation against the publication of information that they consider false, inaccurate or offensive; and, only if these mechanisms prove to be insufficient, they may file a civil complaint for defamation to claim compensation if they satisfy the actual malice standard. This article analyzes the origin of the actual malice standard in the New York Times Co. vs. Sullivan case to identify its nature and purposes as a stringent scrutiny to protect the right of freedom of speech and the principle that debate on public issues should be uninhibited, robust and wide-open. To do this, it examines the precedents of the United States Supreme Court to determine when the actual malice standard applies and how its configurative elements should be understood, and also outlines the main criticisms of the standard and the practical problems associated with its application. Finally, based on these findings, it examines how the standard of actual malice will be applied in Ecuador, in perspective of Decision N° 282-13-JP/19, issued by the Constitutional Court of Ecuador. In this way, the article makes a comparative analysis of the scope and the configurative elements of this foreign standard, according to the Ecuadorian legal framework.
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Delegación de competencias y compliance penal: un estudio sobre la transferencia y transformación de los deberes (de vigilancia) en el derecho penal económico
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Gómez Martín, Víctor
Delegation is usually defined as that technique through which the delegate is discharged of initial functions and competences, transferring them to the delegate and thereby producing a transformation of the individual responsibility spheres of both the first and second. In the delegation, the position of guarantor of the delegate would correspond to the responsibility for authorship regarding the unavoidable result, while the responsibility of thedelegate would be that of criminal participation. The businessman, therefore, would not extinguish his position as guarantor, but would modify it, so that the duties of control and avoidance of harmful events would become duties of supervision and monitoring of the delegate’s work.
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Análisis de la Directiva Europea de whistleblowing y principales retos de la nueva regulación. El caso de España
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Torrent I Santamaria, Josep Maria; Pérez Gil de Gómez, Laura
With the approval of the European Directive 1937/2019 on October 23rd, that the countries of the European Union are required to transpose no later than two years after its entry into force, all companies, as well as public entities with more than fifty workers, must enable a whistleblower channel. The purpose of this article is to synthesize the main novelties that this norm introduces, highlighting the importance of initially reaching an agreement on the very definition of the informant. In Spain, the lack of regulation of this figure so far has led the doctrine to search for solutions in the general theory of crime, as well as in other disciplines of law, in order to solve the difficulties that have arisen with the use of reporting channels by companies that chosed to incorporate a compliance program. Finally, we will point out some of the problems arising from the transposition of the Directive from the perspective of its compatibility with the system of rights and guarantees that rule the criminal process. Along these lines, a harmonization of the newly released whistleblower’s apparent exemption from liability with the current Penal Code is proposed, also focused on the need to provide guarantees to internal investigations to preserve the validity of the evidence that may be obtained by them.
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El principio de responsabilidad proactiva: una oportunidad para un mejor cumplimiento de la normativa en materia de protección de datos de carácter personal en el ámbito latinoamericano
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Santamaría Ramos, Francisco José
This study tries to determine whether the principle of proactive liability, established in the European General Data Protection Regulation, can be easily transferred to the Latin American sphere despite the fact that Latin American regulations are excessively fragmented and, in any case, it does not include the principle of proactive responsibility as one to be taken into account in the protection of personal data. This investigation is of a bibliographic type and it approaches to the knowledge of the subject to identify what is known and what not about the object of study. Therefore, the objective is to carry out a synopsis that brings together different investigations, reports and articles that account for the current state of the phenomenon under study; however, such a review also implies making a critical assessment of the research and articles. In this sense, understanding each case examined provides invaluable insights and explanations for understanding the topic of the object of study, and allows proposing strategies to improve the problem, which helps to put the topic in its respective context. The bibliography has been selected both for its usefulness in the present field of study and for itstopicality, seeking to review the most important and current bibliographic material as possible.
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Pautas y recomendaciones técnico-jurídicas para la configuración de un canal de denuncias eficaz en organizaciones públicas y privadas. La perspectiva española
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) Ballesteros Sánchez, Julio
This paper starts from a basic premise: During the last years, there have been multiple corruption cases that affected public administrations credibility, but also the one of the private sectors of the economy. Areas such as urban planning or public contracting have been prolix regarding the occurrence of criminal activities that undermine the proper functioning of the Public Administration and business activity based on ethics and mechanisms to improve organizations (public and private ones) by prematurely discovering illicit conduct and, in turn, identifying the individuals responsible for such acts. In the same way, for some companies, the verification of the effectiveness of the complaint channels in court contributes to corporate defenses and in achieving exemption from criminal responsibility. Therefore, from a technical perspective, guidelines and recommendations are offered from different regulations point of view to increase the effectiveness of these channels and to reduce the legal uncertainty that occurs in Spain, given the limited drafting of the Penal Code. Likewise, anonymity, paid denunciation and the protection of the complainant against retaliation are addressed.legality. Consequently, it is very important to implement internal complaint
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En defensa de la justicia: explicando la improbable inaplicación judicial del indulto y derecho de gracia del condenado por graves violaciones a los derechos humanos Alberto Fujimori
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2020-11-26) de Belaunde de Cárdenas, Javier Alonso
Alberto Fujimori, Peruvian ex-president and perpetrator of human rights violations, was released from prison due to a presidential pardon in 2017. He was also granted immunity from prosecution. Although the political branches and the majority of the population supported these measures, as shown by public opinion polls, within months domestic courts overturned them completely, relying on standards set by the Inter-American Court of Human Rights. This is the most unlikely result, comparatively. The article examines what could explain this pro human rights accountability behaviour in the judiciary. It argues that the outcome could be the product of two processes initialised during the Peruvian transition: Judicial empowerment (independence and power gains) and legal culture shift from positivism to neo-constitutionalism. Both are defined and analysed with reference to transitional justice and socio-legal studies scholarship. The article further seeks to identify the conditions under which Inter-American conventionality control doctrine could have a strong domestic impact.

Derecho PUCP. Núm. 85 (2020)

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