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Search Results
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¿QUÉ SE HA DICHO SOBRE EL FUNCIONAMIENTO DE LA JUSTICIA CIVIL EN CHILE? APORTES PARA LA REFORMA
In recent years, there is a growing consensus on the necessity of a civil justice reform. This consensus has crystallized into various proposals that until today are under legislative discussion. Notwithstanding, a deeper analysis on the functioning of the civil justice in the country, particularly the precise identification of its problems, is an urgent need to meet if we expect for a success of the public policy in this area. For these purposes, this article aims to account for the main critics that exist in the literature on the subject and systematize them according to four categories: existing barriers for accessing to civil justice, procedural design and the excessive written character of the civil procedure, lack of heterogeneity of civil filings, and the length of these cases. Finally, future research areas are identified to serve the necessity of the minimum diagnosis required to strengthen the discussion on civil justice reform in Chile.
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CIVIL JUSTICE DOUBLE HELIX TOWARDS AN INTEGRAL SYSTEM OF CONFLICT RESOLUTION IN CIVIL HEADQUARTERS
For a while now, we are witnessing a gradual but progressive incorporation of alternative dispute resolution mechanisms in the chilean legal system. However, they still have a secondary and marginal role. The foregoing contrasts with modern procedural trends that show that a connection bet- ween the judicial world and the world of alternative dispute resolution is not only possible, but indispensable for an accessible and efficient civil justice system. The approach of some basic premises for the design of an integral system for the solution of civil controversies is the objective of this work.
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THE PROOF OF SPECIFIC CAUSATION: AN INSURMOUNTABLE BARRIER TO IMPOSE ENVIRONMENTAL LIABILITY AND TORT LIABILITY FOR HARMS ARISING FROM CLIMATE CHANGE?
In this article I argue that, in order to overcome successfully the current impossibility of showing the causal link between greenhouse gas emissions released by one or more individualized agents and the environmental and/or personal damage for which reparation is sought –immediately attributable to specific climate changes and more remotely to global warming where their activity has an impact– it is not enough for the Chilean environmental courts and courts of justice to use judicial presumptions and shift the burden of proof to those actors, but they would have to modify radically their understanding of the foundation and aim of environmental liability and tort law, through the replacement of the traditional and deterministic idea of causation, based on but for test, by a probabilistic notion of it, supported by the climate attribution science and normative criteria of causation, whereby the emitters are held liable for harm that most likely did not inflict but at most contributed to cause.
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LEGAL EVIDENCE AND THE SEARCH OF TRUTH: IS IT POSSIBLE TO INTERPRET THE PROBATORY RULES OF THE CIVIL PROCEDURE CODE ACCORDING TO A PRO VERITATIS PRINCIPLE?
This paper addresses the existing tension between the system of legal or weighted evidence currently in force in the Chilean Civil Procedure Code and the pursuit of truth as the primary goal of the probatory stage. In the absence of a civil procedure reform capable of closing the gap between traditional normative structures and contemporary epistemic demands, it proposes an interpretation of probatory rules in accordance with the proposed pro veritatis principle. Through a historical, dogmatic and normative analysis, it is sustained that many of these rules maintain, to varying degrees, an epistemic orientation that justifies their reinterpretation. In that sense, a re-reading of such rules is proposed, aimed at mitigating their most restrictive effects while strengthening the justice of the verdict based on a reasonably proven factic truth. -
CONFLICT RESOLUTION IN THE HEALTH SYSTEM, MEDIATION AND ARBITRATION IN AN INSTITUTIONAL CONTEXT
The paper describes a group of dispute resolution mechanisms introduced in the Health Care Reform known as AUGE. The reform included forms of mediation and arbitration that currently represents an important part of the total civil litigation in Chile. The article explores some problems that those alternative mechanisms could create. The most important issue is that the Chilean state do not recognize the importance of a civil justice system and the possible loss of some of its values, especially those relate with the transparency of is operation.
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RAWLS AND TORT LAW: A CRITIQUE OF RIPSTEIN
The article challenges Arthur Ripstein’s theses on the place of private law (and tort law in particular) in John Rawls’ theory of justice. According to Ripstein, Rawls’ theory of justice grants private law a certain independence by exempting it from the distributive injunctions of the principles chosen in the original position. This conclusion has two bases, one negative and the other positive. On the negative side of the argument, Ripstein claims that Rawls’ original position does not lend itself to guiding the design of institutions, especially those institutions with a deontological structure such as tort law. On the positive side, Ripstein resorts to the idea of a division of responsibility between citizens and social institutions (an idea that Rawls presents in “Social Unity and Primary Goods”) to demonstrate Rawls’ commitment to a pre-institutional conception of ownership and to the independence of private law that would ensue. The article argues that Ripstein is wrong in neglecting the role of the original position and the principles chosen in that position and exaggerates the consequences for private law of the division of responsibility between citizens and institutions.