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546,196 artículos

Año: 2022
ISSN: 2305-2546, 0251-3420
Mayer Lux, Laura; Vera Vega, Jaime
Pontificia Universidad Católica del Perú
The objective of this paper is to examine the principle of systematicity as a criterion of an adequate legislative technique in criminal matters, regarding the norms that regulate nuclear crimes of vehicular traffic in Chile. The analysis focuses on the rule that establishes the effective enforcement of the custodial sentences imposed on some of these crimes, which breaks with the system of crimes regulated in Chile, that is generally based on another class of criminal reactions. The study uses fundamentally a dogmatic methodology and a recourse to legal, jurisprudential and doctrinal sources. Among its results, the article highlights the relevance that the principle of systematicity has for the creation of criminal laws, either as such or in relation to other principles of law, like equality before the law, proportionality or certainty. It also concludes that the violation of the principle of systematicity affects both formal and substantive aspects, that is, relative to the instruments that serve as a source for criminal norms and their content.
Año: 2022
ISSN: 2305-2546, 0251-3420
Contreras Chaimovich, Lautaro Camilo; Castro Morales, Álvaro
Pontificia Universidad Católica del Perú
In Chilean law, difficulties arise when it comes to ascribing criminal responsibility to corporate management bodies that give orders to their subordinates to commit intentional crimes of domination, which is explained by a variety of reasons, both dogmatic and of positive law. According to the “individual ascription of legal responsibility model”, the direct perpetrator of a crime is the person who carries out both the actus rea and means rea of an offence, without grounds for justificatory or excusatory defenses of guilt. Due to the existing division between making decisions and taking action in the corporate sphere, management bodies do not typically carry out the respective criminal conduct and, consequently, cannot be perceived as principal perpetrators. Moreover, they will often avoid making co-perpetration contributions, as described in article 15, Nos 1 and 3 of the Chilean Criminal Code. On the other hand, it is uncommon for them to use instruments that are not fully responsible for the perpetration of a crime, and thus cannot be considered as principal perpetrators by proxy. Therefore, corporate management bodies may only be held liable as instigators. Furthermore, the approach of German jurisprudence, according to which it is possible to extend the concept of organizational control to the corporate field, and thus punish the superior bodies that issue unlawful instructions as perpetrators by proxy, cannot be accepted in Chilean law; nor can the doctrinal proposal to make managers who order their subordinates to commit crimes liable as co-perpetrators be accepted.
Año: 2022
ISSN: 2305-2546, 0251-3420
Zara, Nicolás Daniel
Pontificia Universidad Católica del Perú
This article aims to propose a reframing of certain aspects of feminist mobilization for equality in the United States of America in the decades of 1960 and 1970, considering some elements of social movements theory and democratic constitutionalism. It analyzes the ways in which the feminist movement’s narrative succeeded in permeating in the constitutional culture of the United States, changing through it the meaning of the U.S. Constitution. In doing so, it focuses on the strategies used by legal feminism in constitutional litigation, on the efforts for the sanction of the Equal Rights Amendment (ERA), and on the interactions between both processes. It addresses the recent revival of the ERA, as well as its text’s shortcomings. Finally, based on the analysis carried out in previous sections, it provides some arguments in support of a new alternative to the old ERA.
Año: 2022
ISSN: 2305-2546, 0251-3420
Hernández Martínez, Camila; Vilanova Becker, Patricia
Pontificia Universidad Católica del Perú
From the fields of gender studies and anthropology, this interdisciplinary study analyzes the racist experiences lived by immigrant Latin American women in Spain, which influence the adherence of the subjects to cultural assimilation techniques. Assimilation is an acculturation strategy where individuals reject the culture of origin in an attempt to fully incorporate themselves into the culture of the host society. Rejecting the Latin American culture through practices and discourses is a way of protecting oneself against the systematic racism experienced in the European territory, as well as a way of getting closer to the white privilege of natives. The methodology used has been qualitative through an intersectional analysis with a gender perspective of semi-structured individual interviews carried out with ten Latin American women immigrants in Spain. In conclusion, on one hand, it is verified that the integration discourses produced by the European institutions have been incorporated by the immigrant subjects, often being interpreted as a duty of assimilation or adaptation that would imply the rejection of the culture of origin. On the other hand, it is also recognized that, simultaneously, women put into action multiple processes of agency and empowerment during their migration journeys.
Año: 2022
ISSN: 2305-2546, 0251-3420
Cociña-Cholaky, Martina
Pontificia Universidad Católica del Perú
Under the slogan of “putting the house in order”, the government of Sebastián Piñera, since his presidential inauguration in 2018, has imposed various requirements on human mobility, which have hindered the entry and regular stay of groups such as Haitians and Venezuelans. These measures have been accompanied by a commitment to the militarization of the northern border and the mediatization of expulsions, along with a rhetoric that dichotomizes displacements into positive/negative, according to their administrative situation, thus conditioning the rights of migrants. This paper examines, from the paradigm of migration governance and through a documentary analysis, the Chilean migration policy from 2018 to 2022, investigating from a qualitative and exploratory approach the main measures implemented and the rhetoric used. It is concluded that in this presidential period a policy has been intensified that, through a human rights narrative, restricts certain flows, increasing irregularity and the precariousness of the crossings, consequences that contradict the premise of “orderly, safe and regular migration” on which the government administration is based. This dynamic has been strongly expressed in the Tarapacá Region, a territory that has become the epicenter of the migratory situation.
Año: 2022
ISSN: 2305-2546, 0251-3420
Beltrán y Puga, Alma; Bohórquez Monsalve, Viviana
Pontificia Universidad Católica del Perú
This essay analyzes the legal mobilization of conservative activists against abortion in Colombia from 2006 to 2020. In the first part, it examines in depth the nullities presented before the Constitutional Court and the State Council by conservative lawyers against reproductive rights of women. In the second part, it studies the demands of unconstitutionality presented before the Constitutional Court to protect life from the moment of conception. All these legal strategies consolidated a legal counter-mobilization to prevent or deny access to abortion. Based in the literature of social movements and their use of law, the article seeks to understand the dynamics of contentious politics where social movements dabble, dividing them in two cycles depending on the legal strategies used and the actors involved. In this context, an explanation is given of why the judicial forum is privileged over the legislative to promote gender backlash with the intention of limiting reproductive rights of women by Catholic activists in Colombia. Their legal strategies are, thus, theoretically understood as a legal counter-mobilization.
Año: 2022
ISSN: 2305-2546, 0251-3420
Artaza, Osvaldo
Pontificia Universidad Católica del Perú
This article analyzes the possible political-criminal benefits associated with the admission of a restorative strategy in the area of corporate criminal liability. To this end, certain shortcomings detected by the specialized literature are addressed, which would be associated with a strategy of reaction to corporate criminality that focuses exclusively on the imposition of disabling sanctions for corporations. In this respect, we will delve into the problem of the lack of knowledge of fundamental interests for the resolution of the conflict, especially that of the stakeholders, and the problem of the possible ineffectiveness of such a strategy in terms of reducing this form of criminality. Then, possible solutions to face the detected problems will be studied, distinguishing between a “reparative” and a “restorative” strategy to determine why the latter could be particularly beneficial for the achievement of the objectives commonly associated with criminal liability of corporations.
Año: 2022
ISSN: 2305-2546, 0251-3420
Harris Moya, Pedro
Pontificia Universidad Católica del Perú
The entry into force of the Law No. 21325 in Chile in 2021 has not only reformed judicial review in matters of migration and foreigners, it has also introduced significant modifications to administrative appeal, under the application of basic administrative laws. Apparently, this law has increased the effectiveness of such claims if they are exercised against nonexpulsive acts (having established their compatibility with other appeals and, likewise, the suspension of the effects of the contested acts) and excluded the application of administrative appeals against an expulsion measure. However, this first interpretation can admit other interpretations. The administrative appeal against non-expulsive acts may impose restrictions on the rights of the claimant, in line with certain interpretative criteria developed by the case law in Chile. Likewise, the ineffectiveness of such claims against expulsive acts may be corrected, in accordance with the constitutional guarantees regarding the exercise of these mechanisms.
Año: 2022
ISSN: 2305-2546, 0251-3420
Sotomayor Trelles, José Enrique
Pontificia Universidad Católica del Perú
This article addresses the problem of the moral wrong present in rape. To do so, it undertakes an analysis of John Gardner's proposal on the subject. Then, identifying what Gardner calls a pure case of rape, it explores the nature and characteristics of consent as a normative transformer. To this end, it addresses the discussion, within the philosophy of action, on what is the ontology of consent. Finally, and as a consequence of holding that consent is a mental state, some problems related to the knowledge of other people’s mental states, traditionally addressed as the problem of other minds in the philosophy of mind, are raised. Some consequences for the evidentiary analysis in cases of rape crimes are drawn from this analysis.
Año: 2022
ISSN: 2305-2546, 0251-3420
Liberona Concha, Nanette; Romero Quezada, Mileska; Salinas, Sius-geng; Veloso, Karen
Pontificia Universidad Católica del Perú
This article seeks to account for the link between Chilean migration policies and the production of migrant smuggling on the country’s northern borders, in a context of global migration regime. Likewise, it reflects on the consequences of migratory illegalization caused by migrant smuggling and by the elaboration and legitimization of categories such as illicit, crime and irregular. To this end, a review of the literature referring to illegalized migration is made, taking some elements of the autonomy of migrations. It is evident that citizenship is exercised if social rights are assured, which is not the case with this population, that experiences a hyper vulnerability of its life, but that at the same time puts into practice a series of clandestine and public, individual and collective resistance that allows them to exercise a migrant citizenship. Methodologically, an ethnography of migrant smuggling was carried out at the border crossing to Chile between 2018 and 2021, which was complemented with a press review through the categorization of news from 2016 to 2021; and interviews with institutional informants were also conducted. It is concluded that migrant smuggling plays an important role in the illegalization of the migrant population, however, the conditions in which it occurs should be considered in judicial processes, since it would be aggravated trafficking. Considering it this way, it should lead to the regularization of migrants; nevertheless, they are criminalized instead, treated as “illegal” and have been subject to collective expulsions that, paradoxically, were analyzed as illegal.

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