Derecho PUCP
Permanent URI for this communityhttp://54.81.141.168/handle/123456789/179977
ISSN: 0251-3420
e-ISSN: 2305-2546
La revista Derecho PUCP, fundada en 1944, publica artículos de investigación jurídica o interdisciplinaria inéditos y originales, los cuales son revisados por pares externos que han publicado investigaciones similares previamente. Las evaluaciones se realizan de forma anónima (sistema doble ciego) y versan sobre la calidad y validez de los argumentos expresados en los artículos. Cuenta con tres secciones: (i) Sección Principal, (ii) Miscelánea e (iii) Interdisciplinaria.
La periodicidad de Derecho PUCP es semestral, apareciendo, tanto en su soporte físico como en su versión digital, en el primer día del periodo de publicación. El primer número de la revista abarca el periodo de junio a noviembre, y el segundo, de diciembre a mayo.
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Item Metadata only Litigantes propensos al riesgo: manifestaciones de su participación en el proceso civil(Pontificia Universidad Católica del Perú, 2024-05-29) Carrasco Delgado, NicolásThis article develops a theoretical framework on the propensity for risk applied to litigation. From this theoretical framework, it follows that the risk prone will initiate legal proceedings more than those averse to it; that when the risk prone are sued, their propensity to risk does not decrease in the face of low variability chance of loss in comparison with previous chances of loss of greater variability; and that furthermore, they generate greater legal expenses than people of other risk profiles. The aforementioned causes greater social losses on increasing the negative externalities of litigation due to the greater divergence between its private and social benefits. The latter shall be examined regarding the issues of permanent courts and the possibility of reaching agreements.Item Metadata only Discusiones en torno a la presunción de la inocencia en el ámbito jurídico angloamericano(Pontificia Universidad Católica del Perú, 2024-05-29) Díaz, Ernesto MatíasThis paper systematizes and compares, based on the reasoning of the U.S. Supreme Court and its decisions, four pairings of concepts that arise from discussions on the operability of the presumption of innocence in the Anglo-American legal system. The article illustrates that the partial conclusions in each of these comparisons must be reached by arguments consistent with the normative foundation of the presumption of innocence principle in order to find the defining characteristics of said principle. Ultimately, the paper sets forth a definition of the presumption of innocence that encompasses each of the partial conclusions thus reached.Item Metadata only Autores y partícipes: un estudio comparado entre el Código Penal alemán y el Código Penal Modelo de los Estados Unidos(Pontificia Universidad Católica del Perú, 2024-05-29) Cordini, Nicolás SantiagoFor more than a hundred years, the study of the parties involved in a crime has been extensively researched, becoming a crucial topic in the field of criminal law. Although there is a considerable amount of research on this issue in the common law and civil law systems, there has been a notable lack of interest in comparative law studies between the two systems. This paper presents a comparative law study between the aforementioned models, offering a parallel and analytical analysis to understand their application and the challenges associated with the implementation of these categories. These categories are increasingly universal in Western criminal thought and policy, which makes this analysis systematic, complex and articulated. The analysis will focus on the German Criminal Code interpreted in the light of the theory of the act dominion and the Model Penal Code, serving as a harmonizing instrument for various criminal codes prevailing in the U.S. The need for comparative studies on U.S. criminal law and the German Criminal Code will be highlighted. With the internationalization of criminal law, comparative studies are becoming indispensable, as it is in this area that the clash of legal cultures occurs. A comparative study between the two models aims to determine the extent to which each system has similarities and differences. This study seeks to provide a deeper understanding of the similarities and differences between the systems of the Model Penal Code (common law) and the German Penal Code (civil law) with the aim of exposing the extent to which they differ and, thus, to improve the application of criminal categories in a context of internationalization.Item Metadata only Respuestas adaptativas, derecho a la salud y el límite del criterio de satisfacción: una reflexión y puesta en evidencia desde el sistema de salud peruano(Pontificia Universidad Católica del Perú, 2024-05-29) Cornejo Amoretti, LeandroSome utilitarian readings present in bioethics emphasize the importance of satisfying people’s preferences as a significant criterion of justice. One of its recurring applications in the healthcare sector is through measuring the satisfaction of healthcare service users. However, little has been discussed in the healthcare and bioethics field regarding objections that this criterion has faced from the philosophy of law and political philosophy. One of these, known as the problem of adaptive responses, asserts that individuals, whether consciously or not, adjust their satisfaction based on what they can attain. Therefore, a cautious view of this criterion is recommended, especially when measuring the satisfaction of individuals facing deprivations. Greater caution should be exercised when it is applied to services that guarantee fundamental rights, such as the right to health. This article aims to discuss this issue and highlight its presence in the healthcare services of Peru. Specifically, after tentatively and briefly conceptualizing what an inappropriately adaptive response would be, this problem will be analyzed and evaluated based on certain components of the National Survey of User Satisfaction of Universal Health Assurance (Ensusalud) of 2014, 2015 and 2016, which are the only three surveys of this kind conducted in Peru to date and on a national scale. In more detail, the aim is to determine whether significant differences in satisfaction with their health insurance exist among users based on their income levels, considering the same degree of impact on their right to health. The processing and analysis of the database lead to the conclusion that these differences do indeed exist. Faced with a infringement on this right (for example, not receiving any medication at the pharmacy, taking more than ninety minutes to reach the facility, etc.), severe economically deprived users express higher levels of satisfaction with their insurance compared to users without economic deprivations. This provides indications to suspect that, in relation to the first group of users, there might indeed be a case of adaptive responses.Item Metadata only Implicancias jurídicas del modelo social de discapacidad en la imputabilidad penal(Pontificia Universidad Católica del Perú, 2024-05-29) Torres Flor, Analucía; Bedoya Perales, Percy VladimiroThe entry into force of Legislative Decree No. 1384 meant that Peru incorporated into its legislation on legal capacity the paradigm of the Social Model of Disability contained in the Convention on the Rights of Persons with Disabilities (2006). This has meant a resounding change in the understanding of the notion of capacity and the existing interaction between the legal system and any person who presents psychosocial, intellectual and/or cognitive deficiencies, since now what was initially an impediment to the exercise of their rights and obligations is no longer an impediment and it is assumed that every person enjoys full legal capacity to deploy their legal sphere. Now, considering that the Law is presented as a normative system that responds to criteria of logic and internal coherence and that its considerations are based on a common factor such as the person and his behavior, the following question arises: what are the implications that this change causes in the legal treatment of the capacity to be subject to criminal charges? From this perspective, we analyze how this new conception of capacity would operate in the field of criminal law, mainly that referring to the notions of imputability and culpability. This responds to the fact that these categories are also structured on the notion of capacity as aptitude to be motivated in accordance with the norm or to infringe it and, thus, be considered responsible for the typical wrongdoing and deserving of punishment. In this line, we consider that the Social Model of Disability would imply that the bases of the sanction in the criminal field, contained in the mentioned categories, are also reformulated, since the notion of capacity is a unanimous element to the legal reasoning that is based on the logic of the duty that every person has to adapt his conduct to the Law, which cannot be considered in an abstract way by the legal system, as the legislation inspired by the mentioned model would do.Item Metadata only ¿Qué es convivir en pareja? Los supuestos espaciales de la Corte Suprema colombiana en casos de pensión de sobrevivientes(Pontificia Universidad Católica del Perú, 2024-05-29) Rodríguez Morales, AndrésIn this article I use legal geography to analyze the way in which the jurisprudence of the Labor Cassation Chamber of the Colombian Supreme Court of Justice assumes spatial imaginaries on the evidentiary standard of cohabitation as a couple. The factual pattern chosen is the study of the possible recognition of the survivor’s pension for the partner of the deceased; therefore, I present two arguments. First, that the spatial assumptions on which the concept of cohabitation as a couple is built are contradictory. Secondly, that when it comes to the existence of sexual relations within the framework of the couple’s relationship, the Supreme Court uses the public/private binary, traditionally used to oppress women, to emancipate them.Item Metadata only Cuando la comunidad «dice» el derecho: las asambleas de justicia indígena en Oaxaca(Pontificia Universidad Católica del Perú, 2024-05-29) Vázquez Hernández, IránAssemblies represent an essential element in the indigenous justice of the communities in Oaxaca. In these types of gatherings, the community becomes a collective judicial body in order to address a violation of its normative system. What is their nature? How do they function? What notable elements do they incorporate in their development? This study aims to provide an approach to these questions through the tools of discourse analysis and studies on orality. To achieve its goal, it is divided into four sections: the first analyzes the typology, nature and status of indigenous justice assemblies; while the following sections focus on examining their procedural, discursive and oral dynamics.Item Metadata only Ordenamiento territorial y concesiones mineras en el Perú: bases para un sistema integrado y armónico con el desarrollo sostenible(Pontificia Universidad Católica del Perú, 2024-05-29) Chinchay Tuesta, Ady; Scurrah, MartinMining and other economic activities are carried out on a particular territory and, thus, affect the natural and human environment in which they operate. As a consequence and in order to avoid future and eventual socio-environmental conflicts, it is essential to guarantee that these human activities are conducted in a manner that respects both environment and society. One of the most powerful tools to achieve this balance between human activities and sustainable development is Land-Use Planning (LUP), understood as the institution charged with organizing human activities to achieve that balance. Bearing this in mind, the present article has three objectives: a) complement the literature on LUP by explaining the interconnection between LUP and the mining concessions regime, b) identify and analyze the main problems with the procedures for granting mining concessions in Peru, and c) propose the foundations for a future integrated system of mining concessions and LUP based on common principles and participatory mechanisms to reconcile tensions between the interests and values of all stakeholders, in addition to providing alternative solutions to the current problems with the mining concessions regime. To analyze the mining concessions regime and LUP a qualitative methodology is adopted, combining documentary analysis, review of official reports, and semi-structured interviews with key actors. Taking into consideration the stated objectives, this research concludes that: a) to achieve sustainable development and prevent the future emergence of conflicts, mining concessions must be granted based on territorial planning that the State (at the national, regional and local levels) should undertake prior to and in conjunction with civil society; b) the mining concession procedure lacks mechanisms of good governance, environmental sustainability and social justice; and c) as an alternative solution to these issues, this research suggests the creation of an integrated system of LUP and mining concessions, one that is binding, efficient, gradual, investor-friendly and intercultural.Item Metadata only Calistenia constitucional: una futura integración del Acuerdo de Escazú con el derecho constitucional peruano(Pontificia Universidad Católica del Perú, 2024-05-29) Gamboa Balbín, CésarThis article analyzes the constitutional implications of the future validity of the Escazú Agreement (Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean) in the legal Peruvian system. Second, this article analyzes whether there is consistency between the content of this regional treaty on environmental procedural rights and what is prescribed by the Constitution of Peru. This implies analyzing a series of constitutional principles associated with the Ecological Constitution, the principle of sustainability, the fundamental right to enjoy a healthy environment and the constitutional design of state environmental tasks. Through a documentary analysis of normative, jurisprudential and doctrinal sources on environmental matters, environmental procedural rights are described and their consistency at the level of constitutional regulation with other constitutional goods, such as economic freedoms, is analyzed. Finally, Peru faces various political challenges to improve the public management of its natural resources and thereby define its own model of environmental democracy. In this sense, the Escazú Agreement represents a challenge as well as an opportunity to give greater legitimacy to the planning of public decisions on ecosystems and the use of natural resources, and thereby avoid a possible impact on the fundamental right to a healthy environment.Item Metadata only La protección penal internacional del medio ambiente: hacia el delito de ecocidio(Pontificia Universidad Católica del Perú, 2024-05-29) Martín Aragón, María del MarThis study focuses on three fundamental aspects related to the international protection of the environment. Thus, after a brief overview of the environmental situation concerning the climate emergency we face, the issue of the environment as a human right is addressed. Subsequently, the historical development of ecocide in the context of the United Nations is examined. Finally, there is an in-depth analysis of the proposed definition of ecocide and the modifications suggested for the Rome Statute, highlighting the work of the Stop Ecocide Foundation and other similar proposals. This approach aims to contribute to the development of international environmental criminal protection by exploring these three central axes.