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Search Results
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UNFAIR COMPETITION BY FAULT
The article examines the unlawfulness in acts of unfair competition, pro- vided as a hypothesis of non-contractual civil liability in Law No. 20.169, which regulates unfair competition. Refuting an interpretation made by national scholars and courts, which states that such illicit requires proof of a fraudulent behavior, the article argues how the text of this law, the reliable history of its establishment, its systematic interpretation with others normative bodies (in particular, with the consumer protection that underlies as a legitimate interest expressly in this special law), the consideration of certain comparative experience and, even, a recent jurisprudence of the Supreme Court, allow to sustain in a well-founded manner that a conduct of unfair competition that infringes the ordinary diligence (slight fault) configures that illicit and gives rise to the exercise of the actions that this law establishes.
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DERIVATIVE CONTRACTS, REPO TRANSACTIONS AND NETTING IN THE LIQUIDATION PROCEDURE, LAW NO. 20.720. THE BANKRUPTCY RULE AS A TOOL FOR STABILIZING THE FINANCIAL SYSTEM AND ITS (LACK OF) RELATIONSHIP WITH THE PURPOSES AND PRINCIPLES OF BANKRUPTCY.
The work we present deals with an aspect that, despite its relevance and effects in a bankruptcy liquidation context, has not been addressed by the doctrine in Chile: the special regime of compensation of obligations arising from derivative contracts, contemplated in article 140 of Law No. 20,720. It seeks to define what is specifically compensated; what obligations are accelerated, to allow compensation; in what sense are they considered as interconnected; what type of contracts are specifically tolerated by this system and, in short, what role does the bankruptcy rule play in this, as a tool for achieving extrabankruptcy purposes. -
THE CASSATION APPEAL IN PLENARY SESSION: AN ASSESSMENT AFTER THIRTY YEARS
Article 780 of the code of civil procedure, incorporated into Law No. 19374 of February 18, 1995, which allows the Supreme Court in plenary session to hear cassation appeals in cases of jurisprudential dispersion originating within the Court itself, has been scarcely applied, and its impact on the development of generalized guidelines for the interpretation of laws affecting civil and commercial matters is practically nil. This was anticipated early on by some Chilean legal scholars. What these scholars failed to foresee is that, in the few cases where the Supreme Court in plenary session heard cassation appeals, subsequent lower courts would disregard the doctrines established by the Court without further explanation, thus calling into question not only equality before the law but also the predictability of the interpretation and application of important institutions of Chilean private law. The article offers an explanation of how the aforementioned results were obtained and concludes with a defense of the jurisprudence unification purposes underlying this procedural mechanism.
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WELL-BEING: AN CRITERION TO DETERMINE THE BEST INTEREST OF THE CHILD
The concept of the BIC presents doctrinal and judicial challenges in its definition and application. This paper, through a brief literature review and case analysis, argues that the BCI has at least seven uses and that article 7 of Law No. 21.430 can serve as ageneral and supplementary rule. Three cases are examined: one involving a direct and regular relationship, a protective measure and a request for a change of name. In each instance, decisions are made under the ISN, using different rules that allow the BIC to operate in different ways. Article 7 of Law No. 21.430 incorporates rules to ensure that judicial decisions are aligned with the BIC in all matters involving children or adolescents. Regarding the determination of the BIC in judicial reasoning, several standards refer to well-being as a criterion. It is suggested that the well-being of the child involved is a crucial factor. To implement this criterion, the concept of subjective well-being is used, which allows for the application of instruments to measure the well-being of the child and to avoid harmful decisions for the child involved.
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RECOGNITION OF A CHILD AND BIOLOGICAL TRUTH: ARE EFFECTIVE THE RECOGNITIONS BY COMPLACENCE AND BY CONVENIENCE IN CHILEAN LAW?
It is known that the Chilean parents-children relationship system, since the entry into force of the Act number 19,585, of 1998, is based fundamentally on the biological truth, since it does not demand to the parent who recognizes his or her child to prove the biological truth, it may produce a dissociation between recognition and biological truth, originating what has been called within foreign Laws the recognition by complacence and recognition by convenience. The present work aims to explain both figures, to determine their validity in Chile and in case of being valid, to determine if they are affected or not by another cause of ineffectiveness, according to the rules of the Chilean Law.
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THE PROTECTION OF THE DIGNITY OF THE CONSUMER IN THE BILL “SERNAC PROTECTS YOU”
The text analyzes the project known as “Sernac te protege” in the part that refers to the protection of the dignity of the consumer. The technique used consists of incorporating into the standard that regulates security and surveillance systems, a positive duty and another of abstention related to dignified treatment. Additionally, it adds the statement that the category of vulnerable consumer could serve as an element of adaptation of the indicated imperatives. The tenor of the subsections that are intended to be incorporated hints at the drafter’s intention to grant broad validity to the imperatives it contains. However, the location chosen, as well as some expressions used in the configuration of the rules, could put this breadth at risk.