Revista de Derecho

Administrative Procedure and the Inter-American Human Rights System. Zulima Sánchez Sánchez

Diego Enrique Méndez Vásquez — Wed, 04 Dec 2024 00:00:00 -0500

The study of the procedure as a true legal institution is still under construction and Professor Sánchez's book is added to this purpose. This work consolidates, systematises and abstracts the bases of the jurisprudence of the Inter-American Human Rights System in relation to administrative procedure as a tool for controlling the actions of the public administration.

The Fundamental of Ethics, en: A. Masferrer, "Criminal Law and Morality in the Age of Consent". Interdisciplinary Perspectives, pp. 171-189

Francisco Carpintero Benítez — Wed, 04 Dec 2024 00:00:00 -0500

A doctrine concerning the foundations of ethics must be regarded as a reflection upon Natural Law. It is indeed possible to discuss principles or values deemed to hold particular significance, often referred to as superior or democratic values. Nonetheless, such values do not constitute a solid foundation, as it is well established that numerous values of this nature have experienced a decline in relevance in recent years. For instance, the United Nations (UN) has recently urged States to adopt measures ensuring that religious denominations comply with LGTBI legislation.

The doctrinal basis of Natural Law was formulated during the 13th and 14th centuries, initially by Thomas Aquinas and subsequently by John Duns Scotus. Nominalist philosophers, such as Scotus, conceived realities akin to contemporary values, asserting that the moral principles that should inform the law are mental constructs inherently present in human reason. Francisco Suárez, adhering to nominalist principles, introduced this theory into the Modern Era in the early 17th century.

The explanation proffered by Thomas Aquinas did not achieve widespread acceptance, possibly due to a deficiency in comprehensive study, and eventually fell into obscurity. In the culmination of this historical process, the notion of Natural Law as an eternal and immutable ordinance prevailed, on the basis that, as Suárez elucidated, "God cannot contradict Himself." Shortly thereafter, adherents emphasized, albeit with limited nuance, the strictly metaphysical foundation of Natural Law.

Administrative act, nullity of full nullity and crime: An analysis of art. 10.4 of the LPAG

Alberto Picón Arranz — Wed, 04 Dec 2024 00:00:00 -0500

After a brief exposition of the status quaestionis of the theory of the invalidity of administrative acts in the LPAG, the main objective of this paper is to carry out a detailed study of the cause of full nullity concerning administrative acts constituting a crime or dictated as a consequence of it, set out in art. 10.4 LPAG. On the one hand, it studies the material requirements that must be met by the act and, on the other hand, it examines the role that criminal jurisdiction can play, as well as its limits, when declaring the full nullity of the administrative act on this ground.

A jurisprudential approach to human dignity based on the ontological theory and the theory of the autonomy of will.

Erman Tejeda Barbarito — Wed, 04 Dec 2024 00:00:00 -0500

The purpose of this article is to provide an analysis of human dignity based on the jurisprudence of the Supreme Court of Justice of the Argentine Nation. It will be observed that there are at least two theories that attempt to define it, with distinct consequences in their application: the theory of ontological dignity and the theory of phenomenological or ethical dignity. It will become apparent that the effects sought in determining rights vary depending on which conception is adhered to. This differentiation in its use suggests that human dignity emerges as a concept of discretionary application due to its lack of foundation by the judges. To carry out this analysis, a series of judicial rulings related to the health sector will be considered, as they involve fundamental rights that allow for an in-depth examination of the concept in question.

Suspension of the procedure for the elimination of bureaucratic barriers when legal proceedings are in progress

Milagros Maraví Sumar, Sheyla Llacza Romero — Wed, 04 Dec 2024 00:00:00 -0500

The authors analyze the suspension of the procedure for the elimination of bureaucratic barriers when a judicial process is pending, taking as a reference the administrative procedure through which the prohibition of using outsourcing for activities that make up the "core business" is questioned. In this regard, they explain the reasons why it is considered that the mere existence of a pending judicial process should not justify the suspension of the administrative procedure, provided that the administrative authority has elements that allow it to prove that, regardless of what is resolved in judicial proceeding, an illegal and/or unreasonable bureaucratic barrier has been established that must be disapplied in favor of citizens and economic agents in the country.

Simple ‘delays’ vs. ‘administrative inactivity’: Notes for the conceptual study of the maximum time limits of administrative procedures and their non-compliance

Ernesto José Saavedra Bazán — Wed, 04 Dec 2024 00:00:00 -0500

The author addresses key ideas for a conceptual study of the 'legal term' and the 'reasonable term' in prior-evaluation administrative proceedings, to associate them with the concepts of mere ‘delays’ and ‘administrative inactivity’. A series of opportunities for legislative improvements to the national general administrative regulations as well as for a shift of paradigms regarding the administrative proceeding itself are identified.

Presentation

Mateo Gomez Matos, Maricela Gonzales Pérez de Castro, Patricia Lescano Feria — Wed, 04 Dec 2024 00:00:00 -0500

This year marks the 40th anniversary of the Peruvian Civil Code, enacted in 1984, which has regulated legal relations in the country, promoting respect for fundamental rights and contributing to a fairer society. Throughout these four decades, the Code has been fundamental in the construction of Civil Law institutions, adapting to social changes and responding to new needs.
In this context, the Faculty of Law of the University of Piura organised the First Legal Essay Competition with the aim of encouraging research and reflection on the impact of the Civil Code on today's society. The essays address technical and normative aspects of the Code, its relationship with other branches of law and its adaptation to contemporary social and technological realities, including proposals for reform.

The elephant in the room in the Peruvian Civil Code: a necessary approach to the proof of moral damage

Carlos Adrián Daza Lozada — Wed, 04 Dec 2024 00:00:00 -0500

Legal institutions often receive an endogenous treatment that manifests on two levels. On one hand, legal institutions are frequently conceptualized from within the law itself and by legal practitioners, without considering other fields of knowledge that could offer more specific insights into the subject matter. On the other hand, within the legal field, institutions are often developed in isolation: substantive legal institutions are studied without considering the procedural and evidentiary implications that arise from defining them in one way or another. The institution of moral damage in the Peruvian Civil Code is certainly not immune to these issues. This essay, therefore, aims firstly to highlight the unsatisfactory way in which moral damages have been addressed, as the definitions and approaches to this institution have often been disconnected from its evidentiary aspects and its relationship to other sciences, such as psychology. Secondly, it seeks to present several starting points for a more comprehensive conceptualization of moral damages, taking into account evidentiary factors, which are crucial to making this institution effective for compensatory purposes.

Civil liability for damages caused by children and adolescents: problems and proposed solutions in the Peruvian legal context

Frank Carlos Caballero Zavala — Wed, 04 Dec 2024 00:00:00 -0500

The article examines civil liability for damages caused by minors and adolescents in Peru, an issue that has intensified following the repeal of Article 1975 of the Civil Code by Legislative Decree 1384. The repealed article established the joint and several liabilities of parents or legal representatives. Currently, under Article 458 of the Civil Code, both minors and adolescents are civilly liable for the damages they cause, provided they act with discernment. However, the lack of patrimonial resources of minors and adolescents complicates the enforceability of reparations, leaving victims unprotected. The objectives of this study are to clarify who should bear civil liability for reparations and to explore the implications of the repeal. The methodology includes a historical and normative analysis of Peruvian legislation showing that the liability of parents and representatives has been recognized in all civil codifications since 1852. Thus, the study proposes the reintroduction of Article 1975, which would restore the joint and several liabilities of parents or representatives, thereby facilitating both the enforceability of reparations and certainty for victims.

The challenges of the Peruvian Civil Code in the metaverse

María Celeste Vásquez Palacios — Wed, 04 Dec 2024 00:00:00 -0500

The main objective of this essay is to analyse the challenges faced by the Peruvian Civil Code in the face of the advance of cyberspace and, in particular, the metaverse. It aims to identify how this body of law must evolve in order to respond to the new technological realities and to ensure adequate protection of rights in the digital environment. The research is carried out from a positivist approach and employs a documentary methodology, based on doctrinal, jurisprudential and normative analysis.

The essay contains a brief explanation of the history of the normative body, jurisprudential and doctrinal development, providing a historical and legal context for the understanding of current problems. Then, for a better understanding, some figures that make this type of technology possible will be identified, as well as the repercussions on various legal institutions together with proposals for amendments. Concluding with the planning of critical questions on the challenge that the metaverse represents for the Peruvian Civil Code and invites reflection on the need to update and adapt current regulations to maintain the coherence and effectiveness of the Law in constant progress.

Implications of including an acknowledgement of parentage clause in the will of parentage clause in the testamentary act

Ingrid Dayhanna Nuñez Seminario — Wed, 04 Dec 2024 00:00:00 -0500

This paper examines the implications of a testator including a testamentary clause that acknowledges parentage. The issue arises due to the fundamentally revocable nature of wills contrasted with the irrevocable character of an acknowledgment of parentage. Key questions include whether such a clause can be revoked as part of a revocable document and when the acknowledgment takes effect—whether upon declaration or only after the testator’s death. The analysis focuses on relevant provisions of the Civil Code, aiming to provide a solution consistent with legal principles and regulatory frameworks.

If the Code needs to change, let's talk about property and leases

Carlos Andrés Arbulú Mansilla — Wed, 04 Dec 2024 00:00:00 -0500

Within the framework of the commemoration of the forty years of the Peruvian Civil Code, this essay analyses the legal institutions of property, acquisitive prescription and leasing contracts to demonstrate the need for a systematic interpretation of the code, evidencing the need for certain reforms and amendments in this body of law, proposing a series of changes in four articles.

Authenticity and integrity in civil electronic contracting: Analysis of its problems and proposal de lege ferenda for its incorporation into the Peruvian Civil Code.

Liliana Katherine Cordero Mendoza — Wed, 04 Dec 2024 00:00:00 -0500

The author examines the issue of authenticity and integrity in electronic communication and its impact on civil contracts. Among the solutions proposed by Peruvian law regarding the treatment of electronic contracts, the contribution provided by the second paragraph of Article 51 of the Commercial Code stands out. This Article, understood in a broad and general sense, can be applied to current electronic contracts. Additionally, the author proposes incorporating a similar provision into the Peruvian Civil Code to ensure the reliability of informal civil contracts.