Traditionally, contract law is considered uniformly based on individualism. This normative support asserts the difference between one’s interests and those of others, advocating the predominance of self-interest. Nevertheless, recent events that have affected the contractual relationships, beckon a critical appraisal of whether there is only one common normative foundation. In...
EDITORIALSOBRE LA EVALUACIÓN DE PARESÁLVARO PAÚL1 *Director de la Revista Chilena de Derecho, Pontificia Universidad Católica de Chile.Chile.Desde el último editorial, han ocurrido en Chile muchos eventos con implicancias jurídicas. Entre tantas novedades y hechos en desarrollo, optamos por escribir un editorial que nos saque de estas vicisitudes y se refiera a una cuestión de...
This work explores the question about the normative foundation or the moral obligatoriness of contract. Faced with this question, two points of view are presented. The first understands that contract realizes a value itself, the foundations of which derive from the principle of autonomy (intrinsic justification); the second, that the justification of the contract depends on the...
Finance has become increasingly enabled by innovations and technologies after the global financial crisis, calling for profound reforms regarding the regulatory regime. Regulation has lifted requirements to deal with systemic risk in the post-crisis era, but being slow to address the rise of FinTech activities. Such a mismatch requires more accommodative regulatory treatments...
This paper reflects on two fundamental questions in relation to Litis pendentia: its basis and its initial time. It is intended to demonstrate, on the one hand, that the rationale of Litis pendentia has constitutional protection and, on the other hand, that neither the positive nor the dogmatic grounds that have been invoked to justify the initial time of the lis pendens serve to...
ABSTRACT: Determining the governing law of corporations-the lex societatis-is relevant today due to the increase of the international activity of corporations. This law is determined in each State by national conflict rules. In Chile, there are no such rules; however, foreign corporations are recognized and have legal capacity in the country. An extensive interpretation of...
The purpose of this study is to vindicate the figure of the real right of inheritance that the Chilean Civil Code has regulated taking into account Roman law and the doctrine of French and Spanish authors. It is argued that understanding the real right of inheritance as a real right in its own thing, this allows to give coherence and reasonableness to the system of assets and...
ABSTRACT: The paper analyzes close corporation involuntary dissolution, and places it in the context of two other shareholders remedies: appraisal rights and damages. It is argued that dissolution is oriented to a renegotiation between the majority and the minority shareholder, recreating the initial conditions of the investment-with several limits. Based on this analysis...
This study aims to unravel the legal meaning of the human right to migrate, through a critical review of the political philosophy, the jurisprudence of the international human rights system and its materialization in the internal regulations of 19 Latin American countries. The analysis carried out allows us to maintain that non-nationals do not have a right to enter the country...
ABSTRACT: From a critical perspective of elements that integrate immigrants’ legal status in Chile, we analyze its legal foundation from the configuration of the rights and freedoms generated by the freedom of transit contained in article 19 Nº 7 a), of the Constitution. A study of the doctrinal constructions and the guarantees of a constitutional nature to protect this freedom...
EDITORIALANÁLISIS DE LA PROPUESTA DE NUEVA CONSTITUCIÓN A LA LUZ DE PRINCIPIOS DEL CONSTITUCIONALISMOALEJANDRA OVALLE1 Comisión de profesores de Derecho Constitucional UC para el análisis de la propuesta de nueva Constitución*Pontificia Universidad Católica de Chile. ChilePRESENTACIÓNLos autores del presente documento, todos profesores de Derecho Constitucional de la Pontificia...
The right to be forgotten has become a matter of capital importance due to the absence of spatial and temporal borders on the Internet. In order to understand everything related to this emerging right, it is necessary to analyze its real origin before the digital era. The primary purpose of carrying out this background is to have more in-depth and exhaustive knowledge of its...
This paper argues that the decision by the Constitutional Tribunal in Ugarteche was in accordance with the current Peruvian Constitution and Peru’s international obligations. Of special interest are the arguments of the Court that it is not up to a constitutional adjudicator to redefine the institution of marriage because that attribution rests with the legislator or with the...
: This paper makes some comments on the Chilean Constitutional Court’s ruling related to the new regulation presented by article 119 of the Health Code. This modification allows the homicide of the unborn beyond sate of necessity. The aim is to show that, in opposition to what the Constitutional Court’s prevention indicates, the problem of the new article 119 is in an axiological...
The decision to dismiss an employee on disciplinary grounds, following his reckless behaviour that exposed his workmates to the COVID-19 virus, is ruled as lawful by the analysed judgment which overturned the lower’s Tribunal decision for this purpose. The case details and its decisions are addressed in this comment, concluding it complies with the law, the opinion of the experts...
: This paper endorses the claim that, within the Colombian legal order, there is no constitutional right to block public ways during a protest. Furthermore, there is no human right with such content in the Inter-American Human Rights System. Instead, authorities have a power, and in many cases, a duty, to unblock public ways, when this disproportionately interferes with other...
RECENSIONESThe Trouble with Foreign Investor ProtectionCarlos Miranda Arrau* * Instituto Nacional de Derechos HumanosGus Van Harten es uno de los más influyentes críticos de los tratados de inversión (TI). Existe una abundante literatura sobre las injusticias y otros inconvenientes de los TI. Gus Van Harten, sin embargo, da un paso más allá, sintetizando dichos problemas...
RECENSIONESCONSTITUTIONAL RIGHTS AND CONSTITUTIONAL DESIGN. MORAL AND EMPIRICAL REASONING IN JUDICIAL REVIEWCRISTIÁN VILLALONGA TORRIJO* *Pontificia Universidad Católica de ChileSin duda, la creciente relevancia de los tribunales en la vida pública a través de la revisión de la constitucionalidad de las leyes es uno de los fenómenos jurídicos de mayor importancia en las últimas...
The paper analyzes the most important theories that have been proposed to justify the so-called crimes of implicit danger; that is, the criminalization of behaviors that, in general, unleash a risk of harm to indeterminate interests, although there may be particular circumstances in which this kind of conduct does not provoke such a risk. After a critical review of different...
: The thesis of this paper is that sub-participation is a partnership. Most scholars argue that partnerships necessarily constitute legal entities and, therefore, sub-participation cannot be a partnership. This narrow definition of partnership, in our opinion, does not fit with the regulation of partnerships contained in the Civil Code, which expressly qualifies sub-participation...
The purpose of this paper is to analyze the legality of the rental of furnished real estate through digital platforms. It develops, fundamentally, four factors that lead to conclude its illegality: (i) infringement of the property rights of other co-owners, (ii) commercial exploitation of real estate for residential use, (iii) conduct constituting unfair competition, and (iv...
: This article aims to propose a control of suitability of intended parents, the elimination of anonymity in the donation of gametes and the determination of maternity by the fact of childbirth as paradigms of reconciliation between the best interests of the child and the intention of one or more adults to procreate. The proposal reacts to an assessment of the legal effects of...
: In the face of the COVID-19 pandemic, several countries implemented the use of digital health applications in order to ensure the care and monitoring of people, contact tracing to help reduce the transmission of the virus and thus be able to provide a response to society in the face of the spread of the virus. Argentina was no exception and developed and implemented the Cuidar...
: Statistics show the unequal position in property ownership that women have in Chile. Law can have a positive or negative impact on the access to real properties by women. The examination of some cases considered by Chilean law allows the analysis of the way in which the law constitutes an important tool that enables relevant changes in the ownership of property of women in our...