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La profesión jurídica ante las reformas estructurales: una aproximación ecológica a la tarea de eliminar barreras burocráticas
(Pontificia Universidad Católica del Perú, 2022-10-28)
Barreras Burocráticas ha venido cumpliendo con su misión de “eliminar”
trabas burocráticas, desde una ubicación que los pone entre las fronteras de una rama
tradicional como el derecho administrativo y otra novedosa como el derecho de la
competencia, bajo...
Informe jurídico sobre la Sentencia Interlocutoria emitida por el Tribunal Constitucional en el Expediente N° 4565-2019-PA/TC
(Pontificia Universidad Católica del Perú, 2022-08-19)
existencia de procesos ordinarios específicos e igualmente satisfactorios, para la tutela del derecho constitucional cuya vulneración o amenaza de vulneración se alega.
El análisis del alcance de dichos criterios tendrá como punto de partida la Sentencia...
The main objective of this legal report is to delimit the scope and content of the criteria used by judges when declaring amparo suits inadmissible, basing their decision on the cause referred to the existence of specific and equally satisfactory ordinary proceedings for the protection of the constitutional right whose violation or threat of violation is alleged. The analysis of the scope of such criteria will have as a starting point the Interlocutory Judgment issued in Case No. 4565-2019-PA/TC. In said Judgment, the Constitutional Court (hereinafter "Constitutional Court or TC") dismissed the constitutional grievance appeal (hereinafter "RAC") filed by the plaintiff, inasmuch as the question of law invoked would have contravened the rules established as binding precedent in the "Elgo Rios Nuñez" case. Thus, in this study we will employ a dogmatic legal (or documentary) research method, since we will analyze what has already been said in doctrine and national jurisprudence regarding the issue at hand. From this, we will conclude that the criteria used by the constitutional judiciary to declare the inadmissibility of an amparo claim on the basis of the cause referring to the existence of specific and equally satisfactory processes to the amparo process, established in the "Elgo Rios Nuñez" case, contain general, indeterminate and abstract concepts, there is a need for such criteria to be endowed with at least sufficient content, so that they may be used by the judiciary in a reasonable, adequate and justified manner, thus avoiding the violation of the right of access to justice....
The main objective of this legal report is to delimit the scope and content of the criteria used by judges when declaring amparo suits inadmissible, basing their decision on the cause referred to the existence of specific and equally satisfactory ordinary proceedings for the protection of the constitutional right whose violation or threat of violation is alleged. The analysis of the scope of such criteria will have as a starting point the Interlocutory Judgment issued in Case No. 4565-2019-PA/TC. In said Judgment, the Constitutional Court (hereinafter "Constitutional Court or TC") dismissed the constitutional grievance appeal (hereinafter "RAC") filed by the plaintiff, inasmuch as the question of law invoked would have contravened the rules established as binding precedent in the "Elgo Rios Nuñez" case. Thus, in this study we will employ a dogmatic legal (or documentary) research method, since we will analyze what has already been said in doctrine and national jurisprudence regarding the issue at hand. From this, we will conclude that the criteria used by the constitutional judiciary to declare the inadmissibility of an amparo claim on the basis of the cause referring to the existence of specific and equally satisfactory processes to the amparo process, established in the "Elgo Rios Nuñez" case, contain general, indeterminate and abstract concepts, there is a need for such criteria to be endowed with at least sufficient content, so that they may be used by the judiciary in a reasonable, adequate and justified manner, thus avoiding the violation of the right of access to justice....
Sentencia N° 265/2021 del Expediente 00001-2020-PI/TC “Caso de la sanción y prevención de la pesca ilegal”
(Pontificia Universidad Católica del Perú, 2023-08-02)
relacionados a las infracciones constitucionales y
examinaremos su afectación a los derechos fundamentales para poder asegurar
o no que el Decreto Legislativo N° 1393 es constitucional o deviene en
inconstitucional. En ese sentido, se propone como objetivos i...
This report analyzes the legal problems found in Judgment No. 265/2021 of File 00001-2020-PI/TC. Regarding the unconstitutionality claim by 5135 citizens against Legislative Decree No. 1393, issued as a result of Authoritative Law No. 30823; this with the objective of regulating the interdiction of illegal fishing activities. To analyze the constitutional validity of the Legislative Decree, we will analyze the content of the articles related to constitutional infractions and we will examine their affectation on fundamental rights in order to ensure or not that Legislative Decree No. 1393 is constitutional or becomes unconstitutional. In this sense, it is proposed as objectives i) to demonstrate that Legislative Decree No. 1393 has no defects of formal unconstitutionality, because they are within the confines of the matter delegated by Law No. 30823, ii) to show that article 3 of DL No. 1393, does not violate the right to property based on doctrine and jurisprudence, iii) demonstrate that article 6 of DL No. 1393, when providing for interdiction actions against illegal fishing, does not violate free private initiative, iv ) demonstrate that the Sole Transitory Complementary Provision violates the effective procedural protection, v) verify if the interdiction measures of the Third Final Complementary Provision of Legislative Decree No. 1393 violate the right of petition, vi) determine if the Second Final Complementary Provision is an excessive measure of the public function....
This report analyzes the legal problems found in Judgment No. 265/2021 of File 00001-2020-PI/TC. Regarding the unconstitutionality claim by 5135 citizens against Legislative Decree No. 1393, issued as a result of Authoritative Law No. 30823; this with the objective of regulating the interdiction of illegal fishing activities. To analyze the constitutional validity of the Legislative Decree, we will analyze the content of the articles related to constitutional infractions and we will examine their affectation on fundamental rights in order to ensure or not that Legislative Decree No. 1393 is constitutional or becomes unconstitutional. In this sense, it is proposed as objectives i) to demonstrate that Legislative Decree No. 1393 has no defects of formal unconstitutionality, because they are within the confines of the matter delegated by Law No. 30823, ii) to show that article 3 of DL No. 1393, does not violate the right to property based on doctrine and jurisprudence, iii) demonstrate that article 6 of DL No. 1393, when providing for interdiction actions against illegal fishing, does not violate free private initiative, iv ) demonstrate that the Sole Transitory Complementary Provision violates the effective procedural protection, v) verify if the interdiction measures of the Third Final Complementary Provision of Legislative Decree No. 1393 violate the right of petition, vi) determine if the Second Final Complementary Provision is an excessive measure of the public function....
CCXXVII Pleno del Tribunal Registral, Análisis del debate sobre el sistema de apoyos y salvaguardias
(Pontificia Universidad Católica del Perú, 2023-08-01)
salvaguardias, incluso cuando quien
es designado como apoyo a nivel judicial pueda contar con facultades de
representación, es insuficiente para proteger ciertos derechos de este grupo de
personas, como lo son estos derechos patrimoniales, y por ello surge la...
This paper refers to the debate held in the CCXXVII Plenary of the Registry Court, with the purpose of carrying out a comparative analysis between the current national regulations and those prior to the year 2018 regarding people with severe neurological disabilities diagnosed at birth; and on the other hand, an analysis of the requirements that are applicable to them for the disposition and affectation of assets in Peru in the patrimonial field. The objective is to demonstrate how the current figure of supports and safeguards, even when whoever is designated as support from a judge may have powers of representation, is insufficient to protect certain rights of this group of people, such as these patrimonial rights. For this reason, there is an urgent need to grant legal representation to the supports and to establish procedural facilities that allow a person with a severe neurological disability diagnosed at birth to have the possibility and necessary assistance to dispose of and/or affect their assets in order to safeguard their well-being and specific needs. Finally, the reason for the aforementioned modification, which derives from the social model of disability, will also be evaluated, relying on the national and international relevant doctrine, to later establish the formalities to dispose of and affect assets in Peru and the difficulties and consequences for this group of people and their environment when it comes to safeguarding their rights and their integral well-being...
This paper refers to the debate held in the CCXXVII Plenary of the Registry Court, with the purpose of carrying out a comparative analysis between the current national regulations and those prior to the year 2018 regarding people with severe neurological disabilities diagnosed at birth; and on the other hand, an analysis of the requirements that are applicable to them for the disposition and affectation of assets in Peru in the patrimonial field. The objective is to demonstrate how the current figure of supports and safeguards, even when whoever is designated as support from a judge may have powers of representation, is insufficient to protect certain rights of this group of people, such as these patrimonial rights. For this reason, there is an urgent need to grant legal representation to the supports and to establish procedural facilities that allow a person with a severe neurological disability diagnosed at birth to have the possibility and necessary assistance to dispose of and/or affect their assets in order to safeguard their well-being and specific needs. Finally, the reason for the aforementioned modification, which derives from the social model of disability, will also be evaluated, relying on the national and international relevant doctrine, to later establish the formalities to dispose of and affect assets in Peru and the difficulties and consequences for this group of people and their environment when it comes to safeguarding their rights and their integral well-being...
Informe Académico sobre la Resolución N.º 2758-2019/SPC-INDECOPI
(Pontificia Universidad Católica del Perú, 2023-07-31)
cartas diferenciadas como estrategia comercial de fidelización. Al
respecto, la evaluación a realizarse se enfoca en torno a los derechos
presuntamente afectados de las comensales del restaurante como el derecho a
la igualdad, vinculado a la dignidad y...
This report seeks to analyze Resolution N.º 2758-2019/SPC-INDECOPI, regarding the development made by the authority on the determination of the legal figure of "discrimination in consumption" with respect to the use of differentiated menus as a commercial strategy of loyalty. In this regard, the evaluation to be carried out focuses on the allegedly affected rights of the restaurant's diners, such as the right to equality, linked to dignity and prohibition of discrimination, and the right to relevant information, therefore, it is questioned whether the access to knowledge of prices was really impossible for the diners, since within the scenario of responsible consumption, the existence of other ways or means for their access is demonstrated and, even, such situation could be corrected under a diligent action; likewise, the particularity of the consumption experience provided by the restaurant as well as its notoriety in the sector is highlighted, which is why, in view of the current commercial dynamics, the existence of a reasonable presumption of prior knowledge about a price standard regarding the services and products provided by the restaurant is raised. Likewise, the appropriateness and reasonableness of the fine imposed, as well as the corrective measures ordered, are evaluated. Therefore, by virtue of the foregoing, it will be possible to verify whether the conduct is in violation of the aforementioned regulations and, therefore, whether the development of the Tribunal was duly grounded....
This report seeks to analyze Resolution N.º 2758-2019/SPC-INDECOPI, regarding the development made by the authority on the determination of the legal figure of "discrimination in consumption" with respect to the use of differentiated menus as a commercial strategy of loyalty. In this regard, the evaluation to be carried out focuses on the allegedly affected rights of the restaurant's diners, such as the right to equality, linked to dignity and prohibition of discrimination, and the right to relevant information, therefore, it is questioned whether the access to knowledge of prices was really impossible for the diners, since within the scenario of responsible consumption, the existence of other ways or means for their access is demonstrated and, even, such situation could be corrected under a diligent action; likewise, the particularity of the consumption experience provided by the restaurant as well as its notoriety in the sector is highlighted, which is why, in view of the current commercial dynamics, the existence of a reasonable presumption of prior knowledge about a price standard regarding the services and products provided by the restaurant is raised. Likewise, the appropriateness and reasonableness of the fine imposed, as well as the corrective measures ordered, are evaluated. Therefore, by virtue of the foregoing, it will be possible to verify whether the conduct is in violation of the aforementioned regulations and, therefore, whether the development of the Tribunal was duly grounded....
Informe sobre Expediente de relevancia jurídica Nº00662-2012-0-1801-JR-CI-42, Indemnización de daños y perjuicios por responsabilidad civil extracontractual por acto de competencia desleal
(Pontificia Universidad Católica del Perú, 2024-03-04)
al ejercicio regular de su derecho a la información. A
su turno, y en grado de apelación, la Tercera Sala Civil decidió revocar la
Sentencia de Vista, tras aplicar al proceso el Decreto Legislativo N° 1044,
decreto que aprueba la Ley de Represión de...
The purpose of this report is to conduct an analysis of Case No. 00662-2012-0- 1801-JR-CI-42, which pertains to the controversial matter of compensation for Extracontractual Civil Liability. In the civil proceeding, at the first instance, the Thirty-First Civil Court dismissed the lawsuit on the grounds that the element of unlawfulness had not been established, as it considered that the defendant's conduct constituted a lawful act of publicity that was a response to the regular exercise of his right to information. In turn, in the appeal process, the Third Civil Chamber decided to overturn the Appellate Judgment, after applying Legislative Decree No. 1044, which approves the Law on Unfair Competition, and determining that the defendant's conduct constituted an act of unfair competition, in the form of acts of undue exploitation of another's reputation, which caused damage to the plaintiff. In this context, this report focuses on analyzing which was the preponderant element of civil liability that led, on the one hand, the Court to dismiss the lawsuit and, on the other hand, the Chamber, to revoke said decision. Likewise, the other concurrent elements of Extracontractual Civil Liability will be analyzed, and their application to the specific case will be examined in order to determine whether we are indeed dealing with a case in which compensation should be granted and the amount of such compensation. Similarly, a normative, doctrinal and jurisprudential analysis will be carried out of the legal concepts involved in the process, such as the right to information, advertising law and the repression of unfair competition....
The purpose of this report is to conduct an analysis of Case No. 00662-2012-0- 1801-JR-CI-42, which pertains to the controversial matter of compensation for Extracontractual Civil Liability. In the civil proceeding, at the first instance, the Thirty-First Civil Court dismissed the lawsuit on the grounds that the element of unlawfulness had not been established, as it considered that the defendant's conduct constituted a lawful act of publicity that was a response to the regular exercise of his right to information. In turn, in the appeal process, the Third Civil Chamber decided to overturn the Appellate Judgment, after applying Legislative Decree No. 1044, which approves the Law on Unfair Competition, and determining that the defendant's conduct constituted an act of unfair competition, in the form of acts of undue exploitation of another's reputation, which caused damage to the plaintiff. In this context, this report focuses on analyzing which was the preponderant element of civil liability that led, on the one hand, the Court to dismiss the lawsuit and, on the other hand, the Chamber, to revoke said decision. Likewise, the other concurrent elements of Extracontractual Civil Liability will be analyzed, and their application to the specific case will be examined in order to determine whether we are indeed dealing with a case in which compensation should be granted and the amount of such compensation. Similarly, a normative, doctrinal and jurisprudential analysis will be carried out of the legal concepts involved in the process, such as the right to information, advertising law and the repression of unfair competition....
Informe jurídico sobre la Casación N.° 1532-2017-Huánuco respecto a los motivos justificados para la procedencia del cambio de nombre en el Perú
(Pontificia Universidad Católica del Perú, 2024-05-13)
El presente informe analiza la institución del cambio de nombre en el ordenamiento
jurídico peruano, bajo la luz de la Casación N.° 1532-2017/Huánuco. Vamos a examinar
si es que la afectación psicológica o vulneración al derecho a la identidad...
In this report we will analyze the legal institution of name change in the Peruvian legal system, regarding the Casación N.º1532-2017/Huánuco. Specifically, we are going to examine if it is correct to interpret in accordance with article 29 of the Peruvian Civil Code, that psychological affectation or violation of the right of identity constitute justified reasons for a judicial name change to proceed. We consider that the Specialized Chamber of the Supreme Court of Justice of the Republic was correct to abandon the restrictive interpretation of Casación N.º3906-2012/Huánuco, by declaring that name changes do proceed when it has been proven that the plaintiff has suffered clear psychological damage by being the victim of ridicule, jokes and insults, given that it is essential to protect the right to identity and dignity of individuals. However, we consider that this ruling made a mistake when it discarded as irrelevant all the cases where the justification of the name change is linked to the absurd or offensive definition of the same name in isolation from the specific circumstances. Furthermore, this ruling also made a mistake when it established as a binding precedent that a list of background information must be attached for the admission of name change plaints, given that this would be discriminatory and not be necessary. Despite these criticisms, in general, this ruling is a progress regarding the protection of the right to a name and the contemporary necessity to deregulate the criteria of immutability....
In this report we will analyze the legal institution of name change in the Peruvian legal system, regarding the Casación N.º1532-2017/Huánuco. Specifically, we are going to examine if it is correct to interpret in accordance with article 29 of the Peruvian Civil Code, that psychological affectation or violation of the right of identity constitute justified reasons for a judicial name change to proceed. We consider that the Specialized Chamber of the Supreme Court of Justice of the Republic was correct to abandon the restrictive interpretation of Casación N.º3906-2012/Huánuco, by declaring that name changes do proceed when it has been proven that the plaintiff has suffered clear psychological damage by being the victim of ridicule, jokes and insults, given that it is essential to protect the right to identity and dignity of individuals. However, we consider that this ruling made a mistake when it discarded as irrelevant all the cases where the justification of the name change is linked to the absurd or offensive definition of the same name in isolation from the specific circumstances. Furthermore, this ruling also made a mistake when it established as a binding precedent that a list of background information must be attached for the admission of name change plaints, given that this would be discriminatory and not be necessary. Despite these criticisms, in general, this ruling is a progress regarding the protection of the right to a name and the contemporary necessity to deregulate the criteria of immutability....
Informe sobre expediente de relevancia jurídica Nº 01735-2008-PA/TC, E-2308, sobre proceso de amparo interpuesto por Shougang Hierro Perú S. A. A. contra la Municipalidad Provincial de Nazca
(Pontificia Universidad Católica del Perú, 2024-06-18)
los instrumentos de planificación urbana. Segundo, del análisis concreto de los efectos de
la norma sobre los derechos constitucionales de la empresa minera.
De esta forma, se pudo concluir que la ordenanza municipal no cumplió con el
procedimiento...
This work analyzes the action for the protection of constitutional rights initiated by the mining company Shougang Hierro Perú S.A.A. against a municipal ordinance issued by the Provincial Municipality of Nazca, which approved an Urban Development Plan for the city of San Juan de Marcona. As a result of this instrument, a conflict arises between the company and the local government, related to the development and continuity of mining activities in the district. This stems from the municipal ordinance categorizing the lands granted in the mining concession as "urban" and "urban expansion", while simultaneously instituting particularly restrictive urban regulations pertaining to mining industrial development. The legal issues stemming from this case are scrutinized from two perspectives. Firstly, from an abstract analysis of the constitutionality of the municipal ordinance, in accordance with the constitutional, legal, and regulatory framework governing the competencies of Local Governments, the development of mining activity, and the approval of urban planning instruments. Secondly, from a concrete analysis of the norm's effects on the constitutional rights of the mining company. Consequently, it was determined that the municipal ordinance failed to adhere to the constitutionally, legally, and regulatory established procedure for approving an urban planning instrument. Moreover, its content infringed the constitutional rights to freedom of enterprise, freedom of industry, and the right to property of the plaintiff company....
This work analyzes the action for the protection of constitutional rights initiated by the mining company Shougang Hierro Perú S.A.A. against a municipal ordinance issued by the Provincial Municipality of Nazca, which approved an Urban Development Plan for the city of San Juan de Marcona. As a result of this instrument, a conflict arises between the company and the local government, related to the development and continuity of mining activities in the district. This stems from the municipal ordinance categorizing the lands granted in the mining concession as "urban" and "urban expansion", while simultaneously instituting particularly restrictive urban regulations pertaining to mining industrial development. The legal issues stemming from this case are scrutinized from two perspectives. Firstly, from an abstract analysis of the constitutionality of the municipal ordinance, in accordance with the constitutional, legal, and regulatory framework governing the competencies of Local Governments, the development of mining activity, and the approval of urban planning instruments. Secondly, from a concrete analysis of the norm's effects on the constitutional rights of the mining company. Consequently, it was determined that the municipal ordinance failed to adhere to the constitutionally, legally, and regulatory established procedure for approving an urban planning instrument. Moreover, its content infringed the constitutional rights to freedom of enterprise, freedom of industry, and the right to property of the plaintiff company....
Informe Jurídico del R.N. N° 1842-2016 emitido por la Segunda Sala Penal Transitoria de la Corte Suprema de Justicia
(Pontificia Universidad Católica del Perú, 2024-02-21)
garantías procesales y principios constitucionales como derecho de
defensa, derecho probatorio, principio acusatorio, etc. En esa línea, la hipótesis del trabajo
es que, el remedio procesal que debió aplicarse es la nulidad hasta el momento en que se
haya...
Informe sobre Resolución 2623-2018/SPC-INDECOPI
(Pontificia Universidad Católica del Perú, 2021-02-19)
En el año 2017 la reconocida empresa Gloria fue denunciada por la Asociación Peruana de
Consumidores y Usuarios (ASPEC) pues estaría comercializando el producto “Pura Vida
Nutrimax” con la denominación “Leche evaporada ...