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Search Results
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HEALTHCARE LIABILITY DUE TO MEDICAL NEGLIGENCE. A PROPOSAL FOR SYSTEMATIZATION
This article aims to systematize the liability of public and private health institutions as a result of medical negligence, through a dogmatic analysis of the problem and the decisions of seventy rulings selected for the study, as they substantiate such liability in various ways or resolve different systematic assumptions. The article includes a conclusions section that highlights the main findings of the study.
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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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CHALLENGES IN THE IMPLEMENTATION OF CIVIL LIABILITY UNDER THE ARTIFICIAL INTELLIGENCE BILL OF LAW (MESSAGE No. 063-371)
This article analyzes the civil liability regime proposed in Chile’s Artificial Intelligence Bill, submitted to the Chamber of Deputies on May 7, 2024. This paper intends to analyze the civil liability regime proposed in Articles 28 and 29 of the Bill while assessing its compatibility with the supplementary regime of the Civil Code and other extra-contractual liability frameworks applicable to technology providers. The analysis focuses on the regulation of fault in the Project. The study suggests that, although innovative, the bill requires adjustments to avoid contradictions and improve clarity in its practical application, both nationally and in relation to international legal frameworks.
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BETWEEN COMPENSATION AND DISTRIBUTION: TORT LAW AS A MECHANISM FOR THE DISTRIBUTION OF MISFORTUNES
The present work is structured under two hypotheses. The first hypothesis claims that corrective justice is the principle that better explains the theory and practice of tort law. The second hypothesis, which shall be called the inseparability thesis, holds it is impossible to separate tort law from the demands of corrective and distributive justice. Both statements are based on its discussion in the Anglo-American literature, although some Chilean will also be discussed. Additionally, it is argued that the two hypotheses are applicable to the practical development of tort law’s problems, providing a theoretical framework that allows creating new solutions to these problems that have not been addressed adequately by Chilean legal scholars.
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BULLYING AND SCHOOL VIOLENCE AS ATTACKS ON THE RIGHT TO EDUCATION AND EVENTS THAT GENERATE CIVIL LIABILITY
The right to education is a fundamental right and due to the horizontal effect of those rights, its compliance can be demanded to other individuals, including educational institutions. School coexistence is part of the right to education and bullying and school violence are flagrant attacks against such coexistence. Consequently, bullying and school violence constitute attacks against the right to education. Such an attack constitutes, in turn, a breach of contract and a crime or tort. Therefore, both, the contractual and non-contractual liability regime would be applicable. In view of this, this would be a borderline case of concurrence of liabilities.
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THE ADJUSTABILITY OF COURT-ORDERED MONETARY JUDGMENTS IN CONTRACTUAL AND EXTRACONTRACTUAL LAW. A DOGMATIC ANALYSIS OF OBLIGATIONS OF SUM AND VALUE AND AN EMPIRICAL STUDY OF JUDICIAL BEHAVIOR
The aim of this paper is to explain the asymmetry of judicial decisions con- cerning the date of accrual of the readjustment of judicial sentence to a sum of money in cases of breach of contract and torts using dogmatic concepts and tools of the legal theory. Without basing itself on these, judicial practice assumes in the interpretation of the law the categories of obligations of sum and value and of being obliged and being liable. To do so, we analyzed seventy one cassation judgments of the First Chamber of the Supreme Court, randomly chosen and handed down between 2008 and 2023. All of them condemn to a sum of money, either as compensation for damages (contractual or non-contractual) or for the return of a non-paid debt, but assume different criteria on the different periods for the accrual of the adjustment granted. Despite the disparity of criteria, there is, in broad terms, a certain uniformity, which is consistent with the jurisprudential category that distinguishes between obligations of sum and of value. This paper aims to show that this coherence is not the product of chance, but that the judiciary intuitively adopts decisions that reflect these jurisprudential categories when interpreting the law. Finally, we intend to collaborate with the effective development of a practice of following precedents, which is essential in a State governed by the rule of law, by showing its necessity and possibility.