The origin, definition, differentiating elements and legal nature of the conservation right are presented here, in light of the contrast between two visions that faced each other in the legislative process; explaining the reasons why the law finally adopted the 'post-modern' vision, thus giving rise to a new affirmative real right different from the conservation easements or real...
RecensionesPuga Vial, J. E. (2021). La sociedad de responsabilidad limitada, la sociedad colectiva y la sociedad en comandita simple en el derecho chileno y comparado. Jurídica de Chile.Pablo Manterola1 http://orcid.org/0000-0003-0998-63821Universidad de Los Andes, Santiago, Chile. Profesor de Asistente. Abogado. Doctor en Derecho, Universidad de Los Andes, Chile. E.mail...
The Chilean Constitutional Court declared unconstitutional a constitutional amendment bill that allowed, by means of a transitory constitutional provision, the withdrawal of 10% of individual pension funds. The commentary points out the grounds on which this declaration was based, determines the type of argumentation presented by the Court, reconstructs the constitutional theory...
This commentary deals with a judgment issued by the Court of Appeals of Santiago on January 23, 2019, and confirmed by the Supreme Court in November 2020. In it, the expiration of a mining concession was declared on the grounds of article 127 of the Mining Code of 1932, which used to establish a rule of automatic or ipso iure expiration. It is concluded that the Court fails its...
The judgment under discussion deals with the problem of the legal value of a registration and its relationship with the possession and, in fact, with the discordance between the Real Estate Registry and the extra-registral reality. The inaccuracy of the registration in this case refers to the disagreement that, with regards to the apparently registered rights of the plaintiff and...
The crime of judicial misconduct for misapplication of the law can be considered as a proper mechanism to ensure the legal behavior of judges and of those who perform “analog functions”. However, the specific legal features of this crime have been scarcely developed in both national courts and doctrine. Therefore, we seek to contribute to the specific discussion on the...
Inapplicability has several configurational shortcomings. The deficient regulation of some of its essential aspects, such as its requirements, the opportunity to file it and the effects of its judgments, has frustrated the goals pursued with its filing on many occasions. Thus, it is possible, even achieving the declaration of unconstitutionality of a legal precept for the...
The State as an entity of public power exercises administrative functions aimed at providing the growing social needs. To do so, these functions are performed by the Public Administration, which is then in charge of offering the corresponding public services to the public. The recipients of these become active consumers through contractual relationships and, thus, public service...
The recent ratification of the State of Chile to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP-CEDAW) invites us to reflect on how Chile has related to individual communications procedures of the Universal Human Rights System. This article describes and analyzes individual communications of the Universal Human Rights...
A twofold analysis is carried out as, on the one hand, the directors' liability arising from bankruptcy is addressed. For this purpose, both damage and intention are examined (including the criticisms about the latter by the specialized literature) as typical features of this regime, whose peculiarities and conditions are described. On the other hand, the directors' liability is...
An analysis is conducted on the plurality of legal sources regarding the matrimonial regime, especially considering the lack of regulation for an agreed-upon regime within Cuban family law. This is due to the fact that Cuban legislation only provides for a mandatory matrimonial regime, leaving no room for the spouses’ freedom of choice with regards to the legal framework of their...
An attempt is made to establish the place of sociological analysis within the scheme of Kelsen’s pure theory. In this respect, it is argued that the proposal of an exclusively normative approach to law rests on a set of empirical conditions, on the verification of which the very possibility of assuming the Grundnorm of a system depends. Thus, when it comes to identifying...
The analysis of moral damages must lead us to reflect upon the boundaries of such a concept, either from a subjective or an objective standpoint. In the case of the first approach, the specialized literature has understood moral damages, in general, under the idea of non-pecuniary disturbances on goods, things or rights. While, in the case of the second, efforts have been focused...
With the entry into force of Law N° 21.000, which created the Financial Market Commission, the called "leniency system" was incorporated as a mechanism for detecting and prosecuting illicit activities in the securities market. This is a tool that allows for improved detection and punishment of illicit activities, while promoting the implementation of self-disciplinary mechanisms...
Some necessary guidelines are outlined concerning the proper application of Law No. 19.496 to small and medium-sized companies, while at the same time, certain provisions of this regime and its judicial application are critically assessed. To conclude, some (de lege lata) guidance is offered which may be useful to legal practitioners at the time of applying these rules.Keywords...
The criminal penalties that Chilean and Spanish criminal legislation refer to as combined sentences and alternative sentences are addressed. First, in order to describe their legal framework and, then, to present the criticisms raised against them by the criminal law literature. On the basis of a dogmatic study of them and a legal-logical analysis of their configuration, the...
It is argued that the writ of inapplicability due to unconstitutionality is an apt and effective means to enable the legal standing, in order to sue compensation for non-pecuniary damages caused by slanderous allegations against a person’s credit or honor. This is a relevant debate in view of the different interpretations that have been given to Article 2331 of the Civil Code, as...
The mining easement is essentially temporary. It is delimited by virtue of the use made of the dominant property, so it is necessary that at the time of its constitution the useful life of the mining operation projected by the mining concessionary be determined in advance, thus allowing the identification of the temporary extension of the lien that is sought to be imposed on the...
Publicity of the Civil Registry is not absolute. In a general sense, respect for the honor and privacy of people represents its main limit based on the recognition that both the Spanish and Cuban Constitution make of these rights. In this context, it is, therefore, notorious that Law No.51 (1985), of July 15th, on the Civil Status Registry in Cuba, does not have a protected data...
The unification of labor jurisprudence remedy entered into force in Chile in the year 2008. Its aim was to generate a uniform jurisprudence (judicial precedent). This article analyzes whether this purpose was accomplished from an internal point of view. This is to say, if the Supreme Court of Chile consistently followed its own interpretation of law. Whit that goal, this study...
It is proposed to analyze the figure of the assignment and transmission of litigious rights from a completely new point of view: investigating the reasons that justify the regulation that the Chilean legislation has imposed on this institute.Therefore, three aspects of this figure are specially attended. First, the moment since the right in dispute, acquires the character of...
ArticlesCabanas Trejo, R. (2020). Conflictos entre socios en la disolución y liquidación de sociedades. Cuestiones problemáticas en la práctica judicial y registral reciente. Aferre.Pablo Manterola1 http://orcid.org/0000-0003-0998-63821Universidad Católica del Norte, Escuela de Derecho, Antofagasta, Chile. Profesor de Asistente. Abogado. Doctor en Derecho, Universidad de Los...
RecensionesMorales Ortiz; M. E. (Dir.) y Mendoza Alonzo. P. (Coord.). (2019). Derecho de consumo: Ley, doctrina y jurisprudencia. Der.Cristian Aedo Barrena1 http://orcid.org/0000-0003-0556-06321Universidad Católica de la Santísima Concepción, Facultad de Derecho, Concepción, Chile. Profesor de Derecho Civil. Abogado. Doctor en Derecho, Universidad de Deusto, Bilbao, España. E...
The impact of a Supreme Court ruling of the year 2020 is analyzed, with regards to the contracts of promise to purchase and sale and of 99-year lease involving indigenous lands. In it, the Court introduces a new interpretation of the regime applicable to the 99-year lease contract, after the entry into force of Act No. 19.253. A decision that implies a departure from the classic...
Two sentences handed down by the Supreme Court are evaluated on the occasion of the knowledge of two appeals for unification of jurisprudence. The purpose of those latters was to determine whether or not stipends paid for overtime should be considered within the basis of calculation of the last remuneration accrued, for the purposes of payment of compensation for termination of...