The article addresses the probatory problem of challenging the admissibility of the defendant’s statement based on lack of voluntariness within the Chilean legal system. Its objective is to present operational solutions that overcome the existing difficulties in establishing which intervening party must prove the conditions under which the statement was obtained. Firstly, it...
A constitutional crisis is a scenario in which the norms stated in the constitution are present in the text but absent in context (constitution with semantic value), indicating an amputation of the impartiality of the Constitutional Court and disobedience to its decisions. Functionally, the Constitutional Court has the highest authority in maintaining the dignity of the...
This paper deals with the procedural defects and the problems generated by the fact that its examination is conducted through the action of inapplicability. The article identifies how the inapplicability action, conceived as a concrete control of constitutionality, is altered when the Constitutional Court performs its review of the inapplicability of the procedural defects. A...
Chilean legal scholars have generally endorsed the possibility of mitigating or exempting criminal responsibility in cases of theft committed as means to overcome a situation of necessity, such as being hungry, cold or sick. The main legal doctrines to solve these cases are the justification of necessity or the excuse of duress of circumstances, regulated on Article 10 of the...
:Keywords : Interest of the defendant; procedural legal relationship; judicial discussion stage; procedural good faith; statement of defense.
The purpose of this paper is to define the concept of discrimination currently applicable under Chilean labor law and to clarify which are the functions that discrimination grounds perform. Following the legal and theoretical developments, administrative decisions, and some judicial cases I argue that discrimination grounds perform, at least, two functions in employment...
EDITORIALSOBRE LAS RECENSIONES O RESEÑAS BIBLIOGRÁFICASÁLVARO PAÚL* *Director de la Revista Chilena de Derecho, Pontificia Universidad Católica de Chile Chile Nuestros editoriales buscan referirse a hechos jurídicos de importancia nacional o a cuestiones de relevancia sobre la Revista Chilena de Derecho. Dentro de estas últimas materias, varios editoriales han clarificado...
RESENCIONESRESENCIÓNRaúl Madrid Ramírez* * Pontificia Universidad Católica de ChileConozco al Profesor Martín Rocha desde hace años. Tuve el honor de darle clases de Fundamentos filosóficos del Derecho, y he tenido además la posibilidad de presenciar de cerca su evolución y desarrollo intelectual. Actualmente, se desempeña como profesor del Departamento de Ciencias Jurídicas y...
RECENSIONESLOUGHLIN, MARTIN (2022): AGAINST CONSTITUTIONALISM (CAMBRIDGE MASSACHUSETTS AND LONDON, ENGLAND: HARVARD UNIVERSITY PRESS) 258 PP.ANDRÉS VODANOVIC ESCUDERO*Pontificia Universidad Católica de ChileA primera vista, el constitucionalismo aparece como un concepto universalmente alabado. En un sentido canónico, dicha noción alude al movimiento intelectual y político surgido...
RESENCIONESRESENCIÓNPatricio I. Carvajal* * Pontificia Universidad Católica de Chile.1. La buena fe de los contratos consensuales que los romanos nos legaron como piedra angular de nuestro sistema negocial, fue explicada por ellos mismos indicando que en tales contratos “se obliga el uno para con el otro”, recíprocamente, “respecto de lo que uno a otro debe prestar según lo bueno...
The objective of this article is to describe two possible interpretations/constructions of the constitutional provisions related to ‘basic freedoms’ and ‘equality before the law’. With this objective, in the first place, the structures that make it possible to fulfill the function of constitutionalism to limit the power of the State, based on two models of constitution that we...
The purpose of this paper is to demonstrate that article 1569 of the Civil Code enshrines two diverse rules, although closely related: the identity of the payment and the identity of the due thing. To achieve this objective, three ideas in particular are developed. First, that ordinarily, both in doctrine and in jurisprudence, the identity of the payment is confused with the...
In this study, we analyze the main interpretative difficulties associated with the crime “private-to-private corruption” in Chile. These challenge are related to the actus reus requirements of the criminal offense, that restrict the behavior to the bribery of employees or agents so that in their work they favor the contracting of one bidder over another. To achieve the goals of...
This research aims to identify Western doctrinal opinions on the law of war with which South American jurists interacted to respond to the challenge of justifying or delegitimizing Chilean expansion in the context of the War of the Pacific (1879-1884). The reconstruction of the international normative frame of reference can contribute to translate the local meaning that the law...
The paper seeks to assess the impact of online technology on traditional mediation as an alternative dispute resolution mechanism. In particular, it seeks to analyze to what extent online environments do or not alter the effectiveness of mediation according to its natural spirit and purpose.Keywords : Mediation; e-mediation; online mediation; alternative dispute resolution...
This research analyzes the jurisprudential work in the determination of the validity conditions for the exercise of the unilateral faculty of geographic mobility in the Peruvian legal system. Despite the lack of specific regulation on the modification of substantial working conditions; and, based on the generic regulation of the limits of management power, the ius variandi...
EDITORIALDELITO Y CASTIGO: A PROPÓSITO DE LA AGENDA LEGISLATIVA EN SEGURIDADÁLVARO PAÚL*Director de la Revista Chilena de Derecho, Pontificia Universidad Católica de Chile.En estos meses la preocupación más significativa de los chilenos ha sido la seguridad, en atención al aumento de delitos graves1 y a los recientes asesinatos de carabineros2. Incluso, la Corte de Apelaciones de...
A judgment of the Court of Appeals of Santiago that poses important problems for legal traffic is commented. The Court, exceeding the scope of the recurso de queja, disfigured the “business closing” contract and decided without clear reasoning. This ruling is an expression of judicial decisionism, which shows how this tendency can have pernicious effects. It is argued that...
The Spanish Supreme Court, in its Ruling 814/2020 of 5 May, deals, for the first time, with the judicial assessment of neuroimaging in the context of criminal proceedings. In this judgement, these are described as “accurate” and “indisputable”, regarding the determination of the volitional and cognitive capacity of the defendant. In this paper, a critical analysis of the judicial...
Dependency is an increasingly common phenomenon due to the increase in life expectancy and, therefore, in the age population group that includes the elderly. The risk of its occurrence is borne by the communities in which people in a situation of dependency are inserted, which gives it a social character. Dependency insurance, in this sense, emerges as an alternative to guarantee...
Taking into view various compared dogmatic developments that justify the generalization of the fairness control of non-negotiated terms, the subjective scope of application of the referred control in Chilean Law is examined, reviewing both the provisions that expressly refer to it as well as the rules and principles of civil law that would allow its generalization. It is argued...
The article proposes a theoretical analysis of the way of understanding the interpretation of tax exemptions aimed at clarifying the jurisprudential and doctrinal vacillations on the matter. In the first place, we discuss what tax experts usually understand by restrictive interpretation and tax exemptions. In the second place, we offer a concept of tax exemption that is sustain...
Taking the Djokovic case as a reference, the text questions the legitimacy of vaccination against COVID-19 as a legal measure for border control. As the circumstances that would justify the mandatory nature of a vaccine are only partially given here, the human right not to receive involuntary medical treatment should prevail. While the pandemic continues it is reasonable for...
This paper presents the historical arguments that shaped the concept of academic freedom in the American context. The first cases on academic freedom are studied, whose main characteristic is that they were not presented before a court, but rather, they promoted academic debates. These arguments addressed the very notion of academic freedom, as well as the role played by...
Artificial intelligence (AI) represents a complex phenomenon whose dimensions are difficult to understand in the legal field. The main thesis developed in this article is to know the regulatory modalities to create a solid normative block of multilevel regulation, where diverse regulatory instruments are combined. The general objective is to create a taxonomic proposal of the...