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Eficacia de los derechos laborales establecidos en el Tratado de Libre Comercio entre Perú y Estados Unidos
(Pontificia Universidad Católica del Perú, 2011-09-23)
1
PONTIFICIA UNIVERSIDAD CATÓLICA DEL PERÚ
FACULTAD DE DERECHO
EFICACIA DE LOS DERECHOS LABORALES
ESTABLECIDOS EN EL TRATADO DE LIBRE
COMERCIO ENTRE PERÚ Y ESTADOS UNIDOS
Tesis...
presentada por: CECILIA AZERRAD URRUTIA Para optar el título profesional de: ABOGADA Lima, 2007 2 Eficacia de los Derechos Laborales Establecidos en el Tratado de Libre Comercio entre Perú y Estados Unidos Cecilia Azerrad Urrutia...
presentada por: CECILIA AZERRAD URRUTIA Para optar el título profesional de: ABOGADA Lima, 2007 2 Eficacia de los Derechos Laborales Establecidos en el Tratado de Libre Comercio entre Perú y Estados Unidos Cecilia Azerrad Urrutia...
Informe jurídico sobre la Sentencia Nº 00943-2016-PA/TC
(Pontificia Universidad Católica del Perú, 2021-08-21)
de
información reservada de la empresa), tras haber el empleador accedido a una
conversación de Facebook entre el demandante y una compañera de trabajo. El trabajador
alegó la vulneración de su derecho al secreto y a la inviolabilidad de las...
The new information and communication technologies have influenced the way we communicate, as well as work relationships. In other words, the employer provides the digital tools necessary for the worker to carry out their work; however, they would be being used, at the same time, for personal purposes. This professional report analyzes the constitutional complaint filed by a worker who was fired for the alleged commission of a serious misconduct (use of confidential company information), after the employer accessed a Facebook conversation between the plaintiff and a colleague of work. The worker alleged the violation of his right to secrecy and inviolability of communications, while the employer relied on the exercise of its powers of inspection and sanction. In this regard, our jurisprudence holds that all information obtained from the intervention of virtual chat or institutional and private emails, without a reasoned order from the judge, is unconstitutional and lacks legal effects. Therefore, it would be necessary to differentiate between the technological means owned by the worker and those owned by the employer, the latter being the object of control for the purpose for which they are delivered. Therefore, in this report, it is intended to analyze the main legal controversies identified, present a position on what was resolved by the Tribunal Constitucional and provide some recommendations, resorting, for this, to doctrine, legislation, jurisprudence, technicallegal documents and the fundamentals of the minority position of the plenary session....
The new information and communication technologies have influenced the way we communicate, as well as work relationships. In other words, the employer provides the digital tools necessary for the worker to carry out their work; however, they would be being used, at the same time, for personal purposes. This professional report analyzes the constitutional complaint filed by a worker who was fired for the alleged commission of a serious misconduct (use of confidential company information), after the employer accessed a Facebook conversation between the plaintiff and a colleague of work. The worker alleged the violation of his right to secrecy and inviolability of communications, while the employer relied on the exercise of its powers of inspection and sanction. In this regard, our jurisprudence holds that all information obtained from the intervention of virtual chat or institutional and private emails, without a reasoned order from the judge, is unconstitutional and lacks legal effects. Therefore, it would be necessary to differentiate between the technological means owned by the worker and those owned by the employer, the latter being the object of control for the purpose for which they are delivered. Therefore, in this report, it is intended to analyze the main legal controversies identified, present a position on what was resolved by the Tribunal Constitucional and provide some recommendations, resorting, for this, to doctrine, legislation, jurisprudence, technicallegal documents and the fundamentals of the minority position of the plenary session....
Informe recaído en la Resolución Nº 006-2013-OEFA/TFA
(Pontificia Universidad Católica del Perú, 2022-08-15)
base normativa empleada al momento de ocurridos los
hechos (años del 2009 al 2013) y la normativa vigente; así como jurisprudencia del Tribunal
Constitucional peruano; y doctrina peruana y comparada. El empleo de estas fuentes del
derecho será...
This legal report analyses Resolution N° 006-2013-OEFA/TFA, which confirms the sanction resolution issued by the "Dirección de Fiscalización, Sanción y Aplicación de Incentivos" (DFSAI) of the OEFA against the company Pluspetrol Norte S.A. for non-compliance with the commitments assumed in the Environmental Management Instrument. In this regard, both the "Tribunal de Fiscalización Ambiental" (TFA) and the DFSAI concluded that the company did not complete the soil and lagoon remediation activities at the Yanayacu field within the timeframe established in the schedule of the Complementary Environmental Plan (PAC) for Lot 8. This oilfield is located within the Pacaya Samiria National Reserve, department of Loreto. In the present administrative sanctioning procedure, it is noted that both instances do not adequately develop relevant legal figures that justify their decision. Such is the case of the application of objective responsibility, the legal nature of the opinion issued by Sernanp and the application of the principles of reasonableness and due motivation when calculating the fine. In this sense, the objective of the report is to address and explain the legal problems that arise in the case, based on the normative basis used at the time of the events (years from 2009 to 2013) and the current regulations; as well as jurisprudence of the peruvian Constitutional Court; and peruvian and foreign doctrine. The use of these sources of law will be essential to provide a coherent and solid position on the OEFA decision....
This legal report analyses Resolution N° 006-2013-OEFA/TFA, which confirms the sanction resolution issued by the "Dirección de Fiscalización, Sanción y Aplicación de Incentivos" (DFSAI) of the OEFA against the company Pluspetrol Norte S.A. for non-compliance with the commitments assumed in the Environmental Management Instrument. In this regard, both the "Tribunal de Fiscalización Ambiental" (TFA) and the DFSAI concluded that the company did not complete the soil and lagoon remediation activities at the Yanayacu field within the timeframe established in the schedule of the Complementary Environmental Plan (PAC) for Lot 8. This oilfield is located within the Pacaya Samiria National Reserve, department of Loreto. In the present administrative sanctioning procedure, it is noted that both instances do not adequately develop relevant legal figures that justify their decision. Such is the case of the application of objective responsibility, the legal nature of the opinion issued by Sernanp and the application of the principles of reasonableness and due motivation when calculating the fine. In this sense, the objective of the report is to address and explain the legal problems that arise in the case, based on the normative basis used at the time of the events (years from 2009 to 2013) and the current regulations; as well as jurisprudence of the peruvian Constitutional Court; and peruvian and foreign doctrine. The use of these sources of law will be essential to provide a coherent and solid position on the OEFA decision....
Informe Jurídico sobre la Resolución del Tribunal Fiscal No. 03701-9-2020
(Pontificia Universidad Católica del Perú, 2022-08-19)
especiales propios del Derecho Tributario...
The objective of this report is to identify and criticize the interpretations carried out regarding compliance with the formal requirement referred to in Supreme Decree No. 090-2008-EF in order to be able to apply the benefits contemplated in the Double Taxation Treaty (hereinafter, "DTT"). This will be carried attending to the legal arguments raised by the Tax Court in Resolution No. 03701-9-2020, whose mandatory enforcement finally establishes a unified criterion regarding the problem under analysis pronouncing on the second paragraph of article 76 of the Income Tax Law (hereinafter, "ITL") which establishes that, at the time of accounting for the expense or cost, in order to apply a DTT, it is not required to exhibit the respective Certificate of Residence. However, this work finds its justification in the legal consequences generated by the conclusions reached by the Tax Court insofar as these will directly affect the taxpayers in the following points: (i) the companies must have the certificate of residence on the date of payment for the service rendered by the non-domiciled subject; (ii) the certificate of residence must accredit the residence of the non-domiciled subject corresponding to the period in which the service was rendered; and, (ii) regardless of their date of issue, the certificates of residence refer to a period prior to the date of the application. Therefore, to the extent that these will directly affect taxpayers who choose to apply a DTT, the purpose is to analyze the legal problems arising from such interpretation, taking into account the characteristics of Tax law....
The objective of this report is to identify and criticize the interpretations carried out regarding compliance with the formal requirement referred to in Supreme Decree No. 090-2008-EF in order to be able to apply the benefits contemplated in the Double Taxation Treaty (hereinafter, "DTT"). This will be carried attending to the legal arguments raised by the Tax Court in Resolution No. 03701-9-2020, whose mandatory enforcement finally establishes a unified criterion regarding the problem under analysis pronouncing on the second paragraph of article 76 of the Income Tax Law (hereinafter, "ITL") which establishes that, at the time of accounting for the expense or cost, in order to apply a DTT, it is not required to exhibit the respective Certificate of Residence. However, this work finds its justification in the legal consequences generated by the conclusions reached by the Tax Court insofar as these will directly affect the taxpayers in the following points: (i) the companies must have the certificate of residence on the date of payment for the service rendered by the non-domiciled subject; (ii) the certificate of residence must accredit the residence of the non-domiciled subject corresponding to the period in which the service was rendered; and, (ii) regardless of their date of issue, the certificates of residence refer to a period prior to the date of the application. Therefore, to the extent that these will directly affect taxpayers who choose to apply a DTT, the purpose is to analyze the legal problems arising from such interpretation, taking into account the characteristics of Tax law....
La actualidad de la inspección del trabajo y la irrupción de la tecnología: algunas propuestas normativas y de gestión para mejorar su proceso de modernización
(Pontificia Universidad Católica del Perú, 2022-10-31)
trabajo a través
de la tecnología de la información y una adecuada gestión permitirá asegurar la
vigencia de los derechos laborales, y sobre todo el acceso al trabajo en condiciones
dignas....
This research analyzes the impact of the emergence of information technology tools in labor inspection, specifically in the investigation stage, both in its planning and operational phases. In this way, we have been able to observe that this phenomenon, accelerated by the special circumstances caused by the spread of COVID-19, offering new opportunities to improve the distribution of resources in labor inspection; However, it has also generated some difficulties both in the development of the inspection proceedings and in their normative understanding because it was conceived in the understanding of an inspection on-site. To carry out a holistic analysis of this phenomenon, we developed a dogmatic investigation and, also, a qualitative methodology was included through interviews with a sample of inspectors from Metropolitan Lima, all of which has allowed us to have a better approach to the problem of our research and, thus, to be able to propose realistic and efficient proposals for the labor inspection system. Finally, we consider that the strengthening of labor inspection using information technology tools and a proper management will ensure the validity of labor rights, and especially the access to decent work....
This research analyzes the impact of the emergence of information technology tools in labor inspection, specifically in the investigation stage, both in its planning and operational phases. In this way, we have been able to observe that this phenomenon, accelerated by the special circumstances caused by the spread of COVID-19, offering new opportunities to improve the distribution of resources in labor inspection; However, it has also generated some difficulties both in the development of the inspection proceedings and in their normative understanding because it was conceived in the understanding of an inspection on-site. To carry out a holistic analysis of this phenomenon, we developed a dogmatic investigation and, also, a qualitative methodology was included through interviews with a sample of inspectors from Metropolitan Lima, all of which has allowed us to have a better approach to the problem of our research and, thus, to be able to propose realistic and efficient proposals for the labor inspection system. Finally, we consider that the strengthening of labor inspection using information technology tools and a proper management will ensure the validity of labor rights, and especially the access to decent work....
La Enajenación de Secciones de Propiedad Exclusiva por parte de la Junta de Propietarios: a propósito de la Resolución N° 2574- 2018-SUNARP-TR-L que exige una mayoría calificada
(Pontificia Universidad Católica del Perú, 2022-08-01)
comunes para que se
puedan vender bienes de propiedad exclusiva bajo la titularidad de la Junta. Para ello,
primero se examina la naturaleza jurídica de la Junta, a lo que sostengo que se trata de un
sujeto de derecho con subjetividad jurídica relativa, y...
This legal report analyzes Resolution No. 2574-2018-SUNARP-TR-L, in relation to the transfer of sections of exclusive property of the Board of Owners in the Exclusive Property and Common Property Regime, and the approval, by the owners, for the alienation of these assets, extreme in which I question the position of the Registry Court that requires the manifestation of will of owners representing two thirds of the shares over the common property in order to be able to sell exclusive property assets under the ownership of the Board. To this end, first the legal nature of the Board is examined, to which I argue that it is a subject of law with relative legal subjectivity, and that, therefore, it can acquire and dispose of property in its own name, which does not detract from the exclusive nature of the property acquired. Subsequently, I point out that, if the purpose of the acquisition of the exclusive property by the Meeting is the alienation, there is no reason to require a qualified majority, but only an absolute majority, since there has already been a previous agreement in the Meeting to sell; in this way, the third party in good faith will be protected if it reviews said purpose, which is recorded in the minutes of the meeting of the Owners' Meeting. Then, I explain the representation that the Board must have for the transfer of the goods of exclusive domain, to which I affirm that the president represents the Board (and not the owners) in the transaction, whose formality is the Public Deed. Finally, I come to the conclusion that, for the acts of disposition of the exclusive sections under the ownership of the Board, only the votes of the absolute majority are required, and not qualified, which deserves an amendment to Law No. 27157 and its Regulations....
This legal report analyzes Resolution No. 2574-2018-SUNARP-TR-L, in relation to the transfer of sections of exclusive property of the Board of Owners in the Exclusive Property and Common Property Regime, and the approval, by the owners, for the alienation of these assets, extreme in which I question the position of the Registry Court that requires the manifestation of will of owners representing two thirds of the shares over the common property in order to be able to sell exclusive property assets under the ownership of the Board. To this end, first the legal nature of the Board is examined, to which I argue that it is a subject of law with relative legal subjectivity, and that, therefore, it can acquire and dispose of property in its own name, which does not detract from the exclusive nature of the property acquired. Subsequently, I point out that, if the purpose of the acquisition of the exclusive property by the Meeting is the alienation, there is no reason to require a qualified majority, but only an absolute majority, since there has already been a previous agreement in the Meeting to sell; in this way, the third party in good faith will be protected if it reviews said purpose, which is recorded in the minutes of the meeting of the Owners' Meeting. Then, I explain the representation that the Board must have for the transfer of the goods of exclusive domain, to which I affirm that the president represents the Board (and not the owners) in the transaction, whose formality is the Public Deed. Finally, I come to the conclusion that, for the acts of disposition of the exclusive sections under the ownership of the Board, only the votes of the absolute majority are required, and not qualified, which deserves an amendment to Law No. 27157 and its Regulations....
Informe Jurídico sobre la resolución contenida en el Expediente 00023-2009-PI/TC
(Pontificia Universidad Católica del Perú, 2023-08-03)
socio – jurídica que
cuestiona una gestión pública que desconoce las obligaciones asumidas por el
Estado y que redunda en la transgresión de derechos, afirmando la necesidad
de consolidar el rol de la administración ambiental en defensa de las Áreas...
On multiple occasions, socio-environmental conflicts in Peru have been a panoramic example of the institutional roots of a clearly anthropocentric vision that, very often, tends to ignore the significance of nature itself, invalidating the original peoples' vindicatory proposals and generating conditions of evident rejection of their ethnic and cultural identity, fragmenting the country and weakening the role of public administration. Aware of this, we intend to analyze the constitutional validity of Legislative Decree 1079, which was issued precisely in a context agitated by socio-environmental conflicts as a result of the accession of our country to the Trade Promotion Agreement signed with the United States (hereinafter FTA). In this sense, it is proposed to historically approach the context in which the Decree is developed, in order to identify the main problematic points of its issuance, and to confront them in the face of casuistry, doctrine and national and international regulation. Thus, it is necessary to promote an academic discussion on the implications and consequences of the position adopted by the Constitutional Court; therefore, I propose a socio-legal evaluation that questions a public management that ignores the obligations assumed by the State and that results in the transgression of rights, affirming the need to consolidate the role of the environmental administration in defense of the Natural Protected Areas (hereinafter NPA's), but with a cross-cultural approach....
On multiple occasions, socio-environmental conflicts in Peru have been a panoramic example of the institutional roots of a clearly anthropocentric vision that, very often, tends to ignore the significance of nature itself, invalidating the original peoples' vindicatory proposals and generating conditions of evident rejection of their ethnic and cultural identity, fragmenting the country and weakening the role of public administration. Aware of this, we intend to analyze the constitutional validity of Legislative Decree 1079, which was issued precisely in a context agitated by socio-environmental conflicts as a result of the accession of our country to the Trade Promotion Agreement signed with the United States (hereinafter FTA). In this sense, it is proposed to historically approach the context in which the Decree is developed, in order to identify the main problematic points of its issuance, and to confront them in the face of casuistry, doctrine and national and international regulation. Thus, it is necessary to promote an academic discussion on the implications and consequences of the position adopted by the Constitutional Court; therefore, I propose a socio-legal evaluation that questions a public management that ignores the obligations assumed by the State and that results in the transgression of rights, affirming the need to consolidate the role of the environmental administration in defense of the Natural Protected Areas (hereinafter NPA's), but with a cross-cultural approach....
Informe jurídico sobre la resolución número veintiuno del expediente 209- 2011-0 sobre anulación del laudo arbitral
(Pontificia Universidad Católica del Perú, 2023-07-31)
probatorios vulnera el derecho a la valoración de pruebas. En el presente estudio
usaremos el método de investigación dogmático jurídico (o documental), puesto
que recogeremos lo que ya se ha expuesto en la doctrina y en la judicatura
respecto a la temática...
The objective of this legal report is to analyze Resolution number 21 of file 209- 2011-0 (the “Judgment”), which deals with the annulment of the award. The Judgment deals with a situation regarding infringement of impartiality in light of the conduct and links displayed in the specific case (aggressive conduct). Likewise, taking this as a starting point, we will establish assumptions regarding the duty of impartiality and whether or not it is affected by (i) the aggressive conduct of an arbitrator; and (ii) the relationship of the arbitrator with the arbitral secretary or with a member of the council. Second, the analysis will focus on the aspect of motivation and the evaluation of evidence, having as a central axis if the non-consideration of certain means of evidence violates the right to the evaluation of evidence. In the present study we will use the legal dogmatic (or documentary) research method, since we will collect what has already been exposed in the doctrine and in the judiciary regarding the subject. We will conclude that impartiality is a relevant concept, since it should guide the actions of the arbitrators during the development of their tasks; however, it is not exempt from controversy, so it deserves to be even more clarified. In the field of motivation, we will conclude that the principle of unity of the evidence should guide its evaluation and that the motivation should not contain a mention and analysis of all the tests, but of those that are relevant to the process...
The objective of this legal report is to analyze Resolution number 21 of file 209- 2011-0 (the “Judgment”), which deals with the annulment of the award. The Judgment deals with a situation regarding infringement of impartiality in light of the conduct and links displayed in the specific case (aggressive conduct). Likewise, taking this as a starting point, we will establish assumptions regarding the duty of impartiality and whether or not it is affected by (i) the aggressive conduct of an arbitrator; and (ii) the relationship of the arbitrator with the arbitral secretary or with a member of the council. Second, the analysis will focus on the aspect of motivation and the evaluation of evidence, having as a central axis if the non-consideration of certain means of evidence violates the right to the evaluation of evidence. In the present study we will use the legal dogmatic (or documentary) research method, since we will collect what has already been exposed in the doctrine and in the judiciary regarding the subject. We will conclude that impartiality is a relevant concept, since it should guide the actions of the arbitrators during the development of their tasks; however, it is not exempt from controversy, so it deserves to be even more clarified. In the field of motivation, we will conclude that the principle of unity of the evidence should guide its evaluation and that the motivation should not contain a mention and analysis of all the tests, but of those that are relevant to the process...
Informe Jurídico sobre Resolución N.° 28 de fecha 27 de febrero de 2019, expedida por la Sala Civil de la Corte Superior de Justicia de Madre de Dios
(Pontificia Universidad Católica del Perú, 2023-08-08)
el proceso de amparo es la
vía idónea para solicitar y declarar la nulidad de los actos administrativos
otorgados en favor de terceros ajenos a la comunidad indígena. Asimismo, se
aborda el derecho a la consulta previa y si constituye fundamento para...
This report is a procedural and substantive analysis of Resolution No. 28 of February 27, 2019, issued by the Civil Chamber of the Superior Court of Justice of Madre Dios. This resolution declared the nullity of a series of administrative acts issued in favor of third parties, related to mining concessions, water use licenses and agricultural lands, located within the land of the Native Community Tres Islas. First, in the procedural field, we analyze whether the amparo process is the appropriate way to request and declare the nullity of the administrative acts granted in favor of third parties unrelated to the indigenous community. We also address the right to prior consultation and whether it constitutes a basis for declaring the nullity of mining concessions, water use licenses and agricultural lands. We consider that, in this controversy, the amparo process is not the appropriate way to analyze the nullity of the administrative acts subject to the claim and that it should have been declared inadmissible. Additionally, on the merits, we do agree with the ruling, insofar as it declares the nullity of the administrative acts that gave rise to the mining concessions and water use licenses; but not those related to the allocation of agricultural lands....
This report is a procedural and substantive analysis of Resolution No. 28 of February 27, 2019, issued by the Civil Chamber of the Superior Court of Justice of Madre Dios. This resolution declared the nullity of a series of administrative acts issued in favor of third parties, related to mining concessions, water use licenses and agricultural lands, located within the land of the Native Community Tres Islas. First, in the procedural field, we analyze whether the amparo process is the appropriate way to request and declare the nullity of the administrative acts granted in favor of third parties unrelated to the indigenous community. We also address the right to prior consultation and whether it constitutes a basis for declaring the nullity of mining concessions, water use licenses and agricultural lands. We consider that, in this controversy, the amparo process is not the appropriate way to analyze the nullity of the administrative acts subject to the claim and that it should have been declared inadmissible. Additionally, on the merits, we do agree with the ruling, insofar as it declares the nullity of the administrative acts that gave rise to the mining concessions and water use licenses; but not those related to the allocation of agricultural lands....
Informe jurídico sobre la Sentencia del Pleno del Tribunal Constitucional recaída en el Expediente N° 00001-2022- PI/TC, caso de la regulación del referéndum
(Pontificia Universidad Católica del Perú, 2023-08-08)
en vicios
de inconstitucionalidad material, debido a que vulnera el contenido
constitucionalmente protegido del derecho a la participación política mediante
referéndum y los principios de soberanía popular y democrático. Finalmente,
debido a la...
This report analyzes whether or not the unconstitutionality claim filed by the Executive Branch against the sole article of Law No. 31399 should be declared founded by the Constitutional Court. For this, national and international jurisprudence is used, as well as doctrine on the matter to determine the existence of vices of unconstitutionality. In this sense, it is concluded that the claim must be declared admissible as long as it meets the requirements established by the New Constitutional Procedure Code. However, in the substantive analysis, it is identified that the challenged norm, in effect, completely and directly contravenes the 1993 Constitution. Likewise, it is observed that the law incurs defects of material unconstitutionality since violates the constitutionally protected content of the right to political participation through referendum and the principles of popular and democratic sovereignty. Finally, due to the nature of the matter that is intended to be regulated, the norm also incurs a formal unconstitutionality defect when it is issued following the regulated procedure for an ordinary law when, on the contrary, its incorporation into the legal system corresponds via constitutional reform (that is, through article 206 of the Constitution). For all these reasons, it is stated that the claim of unconstitutionality must be declared founded and, consequently, Law N° 31399, expelled from the legal system....
This report analyzes whether or not the unconstitutionality claim filed by the Executive Branch against the sole article of Law No. 31399 should be declared founded by the Constitutional Court. For this, national and international jurisprudence is used, as well as doctrine on the matter to determine the existence of vices of unconstitutionality. In this sense, it is concluded that the claim must be declared admissible as long as it meets the requirements established by the New Constitutional Procedure Code. However, in the substantive analysis, it is identified that the challenged norm, in effect, completely and directly contravenes the 1993 Constitution. Likewise, it is observed that the law incurs defects of material unconstitutionality since violates the constitutionally protected content of the right to political participation through referendum and the principles of popular and democratic sovereignty. Finally, due to the nature of the matter that is intended to be regulated, the norm also incurs a formal unconstitutionality defect when it is issued following the regulated procedure for an ordinary law when, on the contrary, its incorporation into the legal system corresponds via constitutional reform (that is, through article 206 of the Constitution). For all these reasons, it is stated that the claim of unconstitutionality must be declared founded and, consequently, Law N° 31399, expelled from the legal system....