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Impacto de la regulación sobre servicios mínimos en la efectividad del derecho de huelga en el ámbito del sector privado, Perú, 2014-2019
(Pontificia Universidad Católica del Perú, 2021-12-09)
inobservancia
al requisito de la nómina para servicios mínimos. A partir de ello, el objetivo de la
presente tesis es determinar en qué medida la intervención del Estado en la
regulación de los servicios mínimos impacta en el ejercicio efectivo del derecho de...
The analysis of the strike communications from the private sector and of national scope presented during the 2014-2019 period reflects that the main reason for the Labor Administrative Authority to declare their inadmissibility is the non-observance of the minimum service payroll requirement. Based on this, the objective of this thesis is to determine to what extent the intervention of the State in the regulation of minimum services impacts on the effective exercise of the right to strike in Peru. Thus, far from sustaining that the effect on the effective exercise of the right to strike is based on the performance of the qualifying body, it is concluded that the difficulty in complying with this requirement lies in the margin of discretion that the minimum services regulations allow, the double control that is imposed on the payroll, and the absence of rules on the determination of the objective and subjective scope of the minimum services. This situation reveals not only the real possibilities that trade union organizations have to effectively exercise the right to strike, but also the vulnerability in which workers find themselves as a result of the position assumed by the Constitutional Court and the Supreme Court regarding to the sanctioning power of the employer in the event of absences derived from the communication of a strike declared inadmissible. In this way, the author proposes (i) restructuring the double control of minimum services, (ii) adding rules to cover the regulatory gap regarding the techniques for determining the target scope of minimum services, (iii) providing clarity to the legal obligation to guarantee minimum services, and (iv) establish criteria that help union organizations to prepare the payroll for minimum services, according to their scope of representation....
The analysis of the strike communications from the private sector and of national scope presented during the 2014-2019 period reflects that the main reason for the Labor Administrative Authority to declare their inadmissibility is the non-observance of the minimum service payroll requirement. Based on this, the objective of this thesis is to determine to what extent the intervention of the State in the regulation of minimum services impacts on the effective exercise of the right to strike in Peru. Thus, far from sustaining that the effect on the effective exercise of the right to strike is based on the performance of the qualifying body, it is concluded that the difficulty in complying with this requirement lies in the margin of discretion that the minimum services regulations allow, the double control that is imposed on the payroll, and the absence of rules on the determination of the objective and subjective scope of the minimum services. This situation reveals not only the real possibilities that trade union organizations have to effectively exercise the right to strike, but also the vulnerability in which workers find themselves as a result of the position assumed by the Constitutional Court and the Supreme Court regarding to the sanctioning power of the employer in the event of absences derived from the communication of a strike declared inadmissible. In this way, the author proposes (i) restructuring the double control of minimum services, (ii) adding rules to cover the regulatory gap regarding the techniques for determining the target scope of minimum services, (iii) providing clarity to the legal obligation to guarantee minimum services, and (iv) establish criteria that help union organizations to prepare the payroll for minimum services, according to their scope of representation....
La falta de regulación para la inscripción del nacimiento de un hijo/a con los dos apellidos del padre biológico afecta el buen gobierno en el marco de la sentencia 06323-2021-0-1801-JR-DC-09
(Pontificia Universidad Católica del Perú, 2023-05-19)
asistida, termina afectando derechos
fundamentales, como en este caso a través de la sentencia 06323-2021-0-1801-
JR-DC-09.
El Perú, siendo un Estado Constitucional de Derecho, reconoce en el artículo 44
de su Constitución al buen gobierno como un principio...
The registration of the birth of a child seeks to achieve recognition of the identity of the child, and in turn also allows the registration of the parents. The current regulation admits as an exception, in case a woman so decides, not having to reveal the identity of the father of her child, being able to register the child with both of her last names. However, for a father, said exception does not apply, as the potential existence of single-parent male families made up of a father and his children was not contemplated at the time the legislator issued the regulation. The Peruvian Civil Code is one of the norms that regulates the registration of the birth of a child, and is characterized by having a heteronormative and patriarchal vision, under which filiation only occurred by natural reproduction and did not contemplate assumptions of male single-parent families. In line with this, the non-existence in Peru of an efficient regulatory framework on assisted reproduction techniques ends up affecting fundamental rights, as in this case through ruling 06323-2021-0-1801-JR-DC-09. Peru, being a Constitutional State of Law, recognizes good governance in article 44 of its Constitution as a principle in the actions of public powers. Therefore, the objective of this paper is to determine whether the lack of regulation and the State's refusal for a father to register his son with her two last names corresponds or not to an action in accordance with the constitutional principle of good governance....
The registration of the birth of a child seeks to achieve recognition of the identity of the child, and in turn also allows the registration of the parents. The current regulation admits as an exception, in case a woman so decides, not having to reveal the identity of the father of her child, being able to register the child with both of her last names. However, for a father, said exception does not apply, as the potential existence of single-parent male families made up of a father and his children was not contemplated at the time the legislator issued the regulation. The Peruvian Civil Code is one of the norms that regulates the registration of the birth of a child, and is characterized by having a heteronormative and patriarchal vision, under which filiation only occurred by natural reproduction and did not contemplate assumptions of male single-parent families. In line with this, the non-existence in Peru of an efficient regulatory framework on assisted reproduction techniques ends up affecting fundamental rights, as in this case through ruling 06323-2021-0-1801-JR-DC-09. Peru, being a Constitutional State of Law, recognizes good governance in article 44 of its Constitution as a principle in the actions of public powers. Therefore, the objective of this paper is to determine whether the lack of regulation and the State's refusal for a father to register his son with her two last names corresponds or not to an action in accordance with the constitutional principle of good governance....
La extinción de estados por la pérdida de su territorio como consecuencia de la elevación del nivel del mar: hacia el surgimiento de un nuevo sujeto de derecho internacional
(Pontificia Universidad Católica del Perú, 2023-07-14)
. Tal es la magnitud del
problema que la Comisión de Derecho Internacional ha incluido como materia de estudio las
implicancias de este efecto en relación con la condición de Estado, destacando alternativas
de solución no taxativas. Por dicha razón, la...
Sea level rise as an adverse effect of climate change affects island or archipelagic States, which are characterized by a low altitude and could see their land territories partially or totally submerged. Such is the magnitude of the problem that the International Law Commission has included as a matter of study the implications of this effect in relation to statehood, highlighting non-exhaustive alternative solutions. For this reason, the present research seeks to address a legal problem from the perspective of international subjectivity referred to what would happen in those cases in which a State sees its territory immersed by the sea level; if, in such a context, (i) the State would be extinguished, (ii) if there would be adequate solutions to maintain the State status, or, (iii) if, if the extinction is accepted, there would be an ex post solution focused on some need of the International Community. Our hypothesis is that, in the event that a State sees its territory totally submerged or if it becomes totally uninhabitable, in the current state of International Law the State would become extinct; however, in that scenario, one possibility proposed in the research is the emergence of a new subject of International Law without territory, which replaces the extinct State and which has an international activity focused on the fight against climate change. For this purpose, the case of the Order of Malta has been taken as a historical example....
Sea level rise as an adverse effect of climate change affects island or archipelagic States, which are characterized by a low altitude and could see their land territories partially or totally submerged. Such is the magnitude of the problem that the International Law Commission has included as a matter of study the implications of this effect in relation to statehood, highlighting non-exhaustive alternative solutions. For this reason, the present research seeks to address a legal problem from the perspective of international subjectivity referred to what would happen in those cases in which a State sees its territory immersed by the sea level; if, in such a context, (i) the State would be extinguished, (ii) if there would be adequate solutions to maintain the State status, or, (iii) if, if the extinction is accepted, there would be an ex post solution focused on some need of the International Community. Our hypothesis is that, in the event that a State sees its territory totally submerged or if it becomes totally uninhabitable, in the current state of International Law the State would become extinct; however, in that scenario, one possibility proposed in the research is the emergence of a new subject of International Law without territory, which replaces the extinct State and which has an international activity focused on the fight against climate change. For this purpose, the case of the Order of Malta has been taken as a historical example....
Informe jurídico sobre el dictamen del Comité de los Derechos del Niño en el caso Camila vs. Perú
(Pontificia Universidad Católica del Perú, 2024-04-30)
juzgamiento de una niña que atravesó una emergencia
obstétrica vulneran los derechos protegidos en la CDN, particularmente el
derecho a la vida (artículo 6), al más alto disfrute de la salud (artículo 24), a
expresar su opinión (artículo 12), a no ser sometida...
This report reviews and analyzes the arguments of the Comittee in Communication No. 136/2021 related to the case of Camila vs. Peru, where it is examined whether the lack of information on AT, the denial of access to it and the criminal prosecution and subsequent trial of a girl who went through an obstetric emergency violate the rights protected in the CRC, particularly the right to life (article 6 ), to the highest enjoyment of health (article 24), to express their opinion (article 12), to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment (article 37, a), to life private (article 16, paragraph 1), to access information from national and international sources (article 17), to non-discrimination (article 2), to protection against violence and to promote their physical and psychological recovery (articles 19 and 39) and to be treated according to his dignity and worth in the juvenile justice system (article 40). In this regard, this treaty body concludes that there was only a violation of the aforementioned articles 2, 6, 12, 16 paragraph 1, 19, 24, 37.a and 39. In relation to article 17, the Committee maintains that the alleged facts were more well directly related to article 13 regarding the right to seek and receive information (para. 8.14). And with respect to article 40, it asserts that it was not necessary to examine whether the persecution and trial of Camila constituted a violation of said article (para. 8.16). Even though we agree with the meaning of the decision, the arguments developed to declare articles 16.1 (private life) and 19 (protection against violence) violated are considered insufficient; and disagrees with the argument outlined for not declaring Article 40 violated....
This report reviews and analyzes the arguments of the Comittee in Communication No. 136/2021 related to the case of Camila vs. Peru, where it is examined whether the lack of information on AT, the denial of access to it and the criminal prosecution and subsequent trial of a girl who went through an obstetric emergency violate the rights protected in the CRC, particularly the right to life (article 6 ), to the highest enjoyment of health (article 24), to express their opinion (article 12), to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment (article 37, a), to life private (article 16, paragraph 1), to access information from national and international sources (article 17), to non-discrimination (article 2), to protection against violence and to promote their physical and psychological recovery (articles 19 and 39) and to be treated according to his dignity and worth in the juvenile justice system (article 40). In this regard, this treaty body concludes that there was only a violation of the aforementioned articles 2, 6, 12, 16 paragraph 1, 19, 24, 37.a and 39. In relation to article 17, the Committee maintains that the alleged facts were more well directly related to article 13 regarding the right to seek and receive information (para. 8.14). And with respect to article 40, it asserts that it was not necessary to examine whether the persecution and trial of Camila constituted a violation of said article (para. 8.16). Even though we agree with the meaning of the decision, the arguments developed to declare articles 16.1 (private life) and 19 (protection against violence) violated are considered insufficient; and disagrees with the argument outlined for not declaring Article 40 violated....
La intangibilidad del derecho a la identidad : dos caras de una moneda : impugnación de paternidad y declaración de paternidad en el hijo nacido de mujer casada
(Pontificia Universidad Católica del Perú, 2018-07-06)
PONTIFICIA UNIVERSIDAD CATÓLICA DEL PERÚ
FACULTAD DE DERECHO
LA INTANGIBILIDAD DEL DERECHO A LA IDENTIDAD
DOS CARAS DE UNA MONEDA:
IMPUGNACIÓN DE PATERNIDAD Y DECLARACIÓN DE
PATERNIDAD EN EL...
para el derecho alimentario que le corresponde al menor. El objetivo principal es distinguir en el análisis casuístico, jurisprudencial, doctrinario, los aspectos comunes y divergentes de la restricción de acceso al derecho a la 2 identidad en...
para el derecho alimentario que le corresponde al menor. El objetivo principal es distinguir en el análisis casuístico, jurisprudencial, doctrinario, los aspectos comunes y divergentes de la restricción de acceso al derecho a la 2 identidad en...
El trabajo penitenciario en el Perú: la aplicación del trabajo como actividad obligatoria en la ejecución de la pena privativa de la libertad
(Pontificia Universidad Católica del Perú, 2017-04-10)
1
PONTIFICIA UNIVERSIDAD CATÓLICA DEL PERÚ
ESCUELA DE GRADUADOS MAESTRÍA EN DERECHO
CON MENCIÓN EN DERECHO PENAL
EL TRABAJO PENITENCIARIO EN EL PERU
LA APLICACIÓN DEL TRABAJO COMO ACTIVIDAD
OBLIGATORIA EN LA...
EJECUCIÓN DE LA PENA PRIVATIVA DE LA LIBERTAD Tesis para obtener el grado académico de Magíster en Derecho con Mención en Derecho Penal Autor: Luis Alberto Meza Espinoza Asesor Prof. Dr. Raúl Pariona Arana Jurado: Prof. Dr. Iván Fabio Meini...
EJECUCIÓN DE LA PENA PRIVATIVA DE LA LIBERTAD Tesis para obtener el grado académico de Magíster en Derecho con Mención en Derecho Penal Autor: Luis Alberto Meza Espinoza Asesor Prof. Dr. Raúl Pariona Arana Jurado: Prof. Dr. Iván Fabio Meini...
Los dados fueron lanzados: estrategias para insertarse en el mercado laboral. ¿Cómo encuentran su primer trabajo los estudiantes y egresados de derecho de la universidad Señor de Sipán?
(Pontificia Universidad Católica del Perú, 2021-06-15)
El presente trabajo explora y analiza las estrategias utilizadas por los
estudiantes y egresados de la carrera de derecho de la Universidad Señor de
Sipán para obtener un trabajo relacionado con sus estudios. La metodología
utilizada fue mixta...
Análisis de las TERAS desde el Derecho de Protección al Consumidor
(Pontificia Universidad Católica del Perú, 2022-03-23)
TERAS, así
como su relevancia para que las personas que padecen de infertilidad puedan ejercer su
Derecho a la Reproducción, derecho que se pretende demostrar que está recogido por
nuestro ordenamiento. En ese sentido y desde un punto de vista de Derecho...
This Article aims to highlight the importance of the need for the regulation of Assisted Reproduction Techniques (ART) in our country based on an academic research carried out regarding the development and evolution of these ART, as well as its relevance for people who suffer from infertility can exercise their Right to Reproduction, a right that is intended to demonstrate that it is included in our legal system. In that sense and from a Consumer Protection Law point of view, it will also be demonstrated how this medical service is important for consumers who purchase this service, as it is currently being provided by public and private entities. of health. This is due to a practical case brought to INDECOPI, where it was discussed about the suitability of one of the ART, that is, IFV, according to its own nature and also the importance of the standardization of a form was pointed out. informed consent when acquiring this type of service....
This Article aims to highlight the importance of the need for the regulation of Assisted Reproduction Techniques (ART) in our country based on an academic research carried out regarding the development and evolution of these ART, as well as its relevance for people who suffer from infertility can exercise their Right to Reproduction, a right that is intended to demonstrate that it is included in our legal system. In that sense and from a Consumer Protection Law point of view, it will also be demonstrated how this medical service is important for consumers who purchase this service, as it is currently being provided by public and private entities. of health. This is due to a practical case brought to INDECOPI, where it was discussed about the suitability of one of the ART, that is, IFV, according to its own nature and also the importance of the standardization of a form was pointed out. informed consent when acquiring this type of service....
Las garantías del debido procedimiento en las inspecciones laborales
(Pontificia Universidad Católica del Perú, 2021-11-16)
durante las inspecciones laborales debían aplicarse las garantías del debido procedimiento, siempre que su naturaleza permita que desplieguen sus efectos. Para realizar dicho examen se revisó tanto la bibliografía especializada en derecho administrativo...
¿Necesaria o prescindible?: la regulación del derecho al desistimiento en el Perú
(Pontificia Universidad Católica del Perú, 2024-04-01)
necesidad de regular el derecho al
desistimiento con el fin de dotar a los consumidores de la posibilidad de
retractarse del producto o servicio contratado por medios digitales, sin necesidad
de alegar justificación alguna. En tal sentido, en esta...
Despite the boom in e-commerce in recent years, to date in Peru there is no specific regulation aimed at regulating consumer relations carried out through this type of transactions. Thus, only the provisions of our Consumer Protection and Defense Code are generally applicable. However, there are certain cases for which such general regulations do not provide a solution. This paper will address the need to regulate the right of withdrawal in order to provide consumers with the possibility of withdrawing from the product or service contracted by digital means, without the need to provide any justification. In this sense, this research will conclude that it is necessary to regulate this right, because it will allow consumers to have greater confidence in electronic commerce and encourage the growth of this digital market. Consumers are often reluctant to carry out transactions by electronic means, since the lack of direct contact with the product to be purchased until after the transaction has been completed may mean that, once they have received it, they may discover that it does not adequately meet their expectations. Therefore, the regulation of the right of withdrawal will play an important role, since it will allow consumers to return the product if it does not meet their expectations, which in turn will be an incentive to carry out this type of transactions....
Despite the boom in e-commerce in recent years, to date in Peru there is no specific regulation aimed at regulating consumer relations carried out through this type of transactions. Thus, only the provisions of our Consumer Protection and Defense Code are generally applicable. However, there are certain cases for which such general regulations do not provide a solution. This paper will address the need to regulate the right of withdrawal in order to provide consumers with the possibility of withdrawing from the product or service contracted by digital means, without the need to provide any justification. In this sense, this research will conclude that it is necessary to regulate this right, because it will allow consumers to have greater confidence in electronic commerce and encourage the growth of this digital market. Consumers are often reluctant to carry out transactions by electronic means, since the lack of direct contact with the product to be purchased until after the transaction has been completed may mean that, once they have received it, they may discover that it does not adequately meet their expectations. Therefore, the regulation of the right of withdrawal will play an important role, since it will allow consumers to return the product if it does not meet their expectations, which in turn will be an incentive to carry out this type of transactions....