The purpose of this article is to provide sufficient justification for the objection to the current thesis that postulates assisted reproductive techniques (ART) as part of reproductive rights. It will be disputed that the prohibition of ART represents a violation of the right to reproductive health and autonomy; that the right to freely access ART derives from the right to found...
The purpose of this article is to discuss the scope of the horizontal effectiveness of fundamental rights or Drittwirkung in legal-labor relations. It places special emphasis on the necessary delimitation of these rights, according to the main characteristics of the employment relationship: steering power and the principle of labor good faith, applying this to the analysis of the...
Although other people’s assets cannot be part of the bankruptcy estate, there has been a tendency to solely redirect this issue to the exercise of the “actio reivindicatoria”. It is argued that this is a wrong interpretation of the law, or at least a partial one, where the claim is better resolved by a declaratory action, parallel to a third-party ownership claim, based on...
Both in International Law and in different domestic legal systems, the territorial rights of indigenous peoples have been interpreted following an “eco-cultural” understanding. This understanding bases the recognition of territorial rights primarily on the need to protect the material and spiritual link of these peoples with their territories. In this article, I will argue that...
EDITORIALARTURO YRARRÁZAVAL COVARRUBIAS (1946-2024), QUE EN PAZ DESCANSEÁlvaro Paúl* *Directorde la Revista Chilena de Derecho, Pontificia Universidad Católica de ChileEl 28 de enero de este año nos dejó don Arturo, el querido exdecano de la Facultad de Derecho de la Pontificia Universidad Católica de Chile, y miembro del Comité Editorial de la Revista Chilena de Derecho. Su...
The dispute over the status and use of the waters of the Silala is the second case that Bolivia and Chile have had before the International Court of Justice. Unlike the dispute over the obligation to negotiate access to the Pacific Ocean, however, in this case the Court did not to resolve the conflict in favour of any of the litigants and concluded that the controversy...
RECENSIONESCosmopolitanism, State Sovereignty and International Law and Politics: A TheoryGabriel Encinas* http://orcid.org/0000-0002-4338-9146* PhD in Human Rights and Global Politics por la Scuola Superiore Sant’Anna, Pisa, Italia; investigador postdoctoral en la Universidad de Erlangen-Núremberg, Alemania; Schillerstraße 1, 91054, Erlangen, Baviera, Alemania; gabriel.alejandro...
This research endeavors to ascertain the extension of restrictions governing the employment of foreign individuals, in the context of the Law No. 21,325 and its National Policy on Migration. Employing a meticulous examination of both migratory and labor regulations, complemented by an assessment of their practical implementation, this study reveals that these regulations have not...
This paper critically analyzes the current understanding that tax avoidance contained in the Chilean general anti-avoidance rule is qualified solely based on objective criteria, without regard to an intention consideration to avoid by the taxpayer. It is postulated that it is not possible to understand avoidance without a subjective dimension, in such a way that the subjective...
In November 2022, the third chamber of the Supreme Court of Chile issued three rulings in different writs of mandamus, with effects regarding all contributors to the private health system (Isapre). This work aims to contribute to the discussion that these decisions have motivated from the science of procedural law, reviewing in general terms the nature of the writ of mandamus...
This paper studies various aspects of the review of final judgments in civil matters, beginning with the defects and grounds that authorize the invalidation of a final judgment. It then addresses the question of whether substantive rules can be applied to a judicial proceeding, considering that the review of final judgments defects are substantial or substantive, and that the...
The objective of this study is to analyze the origin and evolution of the right to integral reparation in the national non-jurisdictional system for the protection of human rights in Mexico. To this end, recommendations are first presented as the main source of legitimacy of the system, reviewing their characteristics related to publicity and non-binding nature. Regarding the...
In the Chilean legal system there is no organized and coherent regulation of what is known as “urban planning discipline”, namely, rules that enforce urban planning. This article seeks to ascertain the mechanisms that citizens and public bodies can wield in order to protect urban planning. These consist of preventive measures, legal reestablishment methods and sanctions. All of...
EDITORIALLA REVISTA CHILENA DE DERECHO EN SU QUINCUAGÉSIMO ANIVERSARIOGabriel Bocksang Hola1 *Decano de la Facultad de Derecho, Pontificia Universidad Católica de ChileUna revista consolidada, internacionalmente reconocida, de proyección mundial, de altísima calidad editorial y de gran impacto en el mundo intelectual. Así es como podría sintetizarse la envergadura de la Revista...
In this paper we comment on the second conviction in Argentina on trafficking in persons and child pornography. We will highlight that the tribunal emphasizes on the modality of exploitation, the conditions of the crime and the specific damages to the victims. However, we will critically evaluate the last part of the ruling. While the court explains that the exploitation for the...
The ruling in the “Isapres case”, which extends a specific solution to a broad range of cases, has generated legal and political controversy. Juridical criticism has been focused on the failure to comply with general maxims, but it seems important to analyze the reasoning of the verdict on its own terms. Once its argumentative framework is identified and compared with a model...
On a comparative level, the law of succession provides for different means of mandatory family protection. However, on the one hand, the mechanisms of forced heirship and compulsory portion lack flexibility; on the other, highly flexible systems lead to too much judicial discretion and lack of certainty. The least disruptive mechanism to achieve that protection is to prevent...
RECENCIONESLos pactos de accionistasMaría Agnes Salah Abusleme* * Facultad de Derecho, Universidad de Chile. Chile El libro del profesor Osvaldo Lagos Villarreal titulado “Los pactos de accionistas” se refiere de manera profunda e integral a este tipo de acuerdos o, como se aprende tempranamente en el trabajo, a los llamados pactos parasociales (pp. 3-4). En efecto, esta obra...
This article identifies and critically analyzes the arguments given by the Civil Chamber of the Chilean Supreme Court when justifying its overwhelming rejection of claims of infringement of the rules governing evidence in tort cases, when deciding recursos de casación en el fondo (cassation appeals on the merits) between 1995 and 2023. To this end, the article addresses some...
Licensing has experienced significant growth considering its ability to integrate the intellectual property into the production and commercialization of goods and services. Certainly, IP Owners should remain in a similar condition after conceding a license. Nonetheless, under certain circumstances, contractual remedies are not suitable for protecting IP property from the licensee...
The purpose of this article is to contribute to the study of “unfair advantage” at the national level. The contribution operates in two different ways. In the first place we present the figure in a way that has not been exposed in our doctrine. Secondly, we give an account of the limitations that, in our opinion, suffer from certain dogmatic attempts that, more or less directly...
In some large transactions in the Chilean market, in which the existence of a conflict of interest situation for the controller of a publicly traded company is apparent, it has been discussed whether or not that transaction is a related party transaction. The answer has not been unanimous, neither from the market, nor from academia, nor between the financial authority and the...
EDITORIALCIERRE DE LA AVENTURA CONSTITUCIONALÁLVARO PAÚL1 *Director de la Revista Chilena de Derecho, Pontificia Universidad Católica De Chile. Chile.Los últimos años han sido de importantes acontecimientos, tales como el llamado Estallido de 2019, el primer proceso de cambio constitucional (con los necesarios plebiscitos y elecciones), la Pandemia, el comienzo de la denominada...
In this paper, after a brief explanation about the origin of the agreements that the judge, the prosecutor and the accused can adopt in the German criminal process for the rapid completion of the procedure with a conviction that reduces the sentence that could be imposed (“Verständigungen”), a detailed analysis is carried out of those agreements, examining their scope of...
This work evaluates, from a rule of law perspective, the doctrine of the Inter-American standards of human rights. By developing this doctrine, both the Commission and the Inter-American Court of Human Rights have imposed standards of conduct on States which are not expressly recognized by conventional instruments. This paper argues that the controversy existing around the...