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Search Results
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PROCEDURAL ISSUES RELATING TO THE LEGAL CLAIM AGAINST A PARTIAL EXPROPRIATION
This research analyzes the main procedural issues raised by the exercise of actions aimed at expanding the expropriation act, regulated in Article 9, letters b) and c) of Decree Law No. 2.186, the Organic Law on Expropriation Procedure, with particular emphasis on the treatment given to them by case law.
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About the arbitrability of the consumer conflict in Chile: basic supply for a structural replanting
This work addresses the arbitrability of the consumer conflict in chilean law, as a starting point for the rethinking of the entire arbitration system on consumer issues in Chile. It deals with arbitrability in its subjective and material manifestations, and reviews the effects generated in this area by the inalienability of consumer rights, the imperative nature of the norms of Law No 19.496, about protection of consumer rights, and the scope of art. 230 of the Organic Code of Courts, about prohibited arbitration.
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Nulity of abuse clauses in reservations, promises of sale and purchase signed by consumers of homes marketed in green
This work analyzes the sentence handed down in Sernac against Socovesa S.A., and another (2020) that pronounces on a claim derived for the defense of the collective interest of consumers by virtue of the special procedure established in article 53 of Title IV of the LPDC. The action is based on the different abusive clauses that the defendants maintain in the adhesion contracts that they usually enter into with consumers during the process of buying a house using the so-called green modality; These are the reserve for the home purchase operation, the contract of the promise of sale and the contract of sale with a mutual mortgage. The study focuses specifically on the claims related to the declaration of nullity of certain clauses that were rejected in the judgment of the first instance that was confirmed by the Court of Appeals of Santiago. Consequently, it reflects on the nature of reservations as an adhesion contract, on the interpretation of article 138 bis of the LGUC in the light of consumer rights and also, on the object of the clauses of accordance.
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DURESS AS A VICE OF CONSENT. A READING FROM THE STANDARDS OF DECISION
This article addresses the problem of the lack of implementation of arts. 1456 and 1457 of the Civil Code that regulate duress as a vice of consent. After analysing the dominant position between civil law scholars, it is proposed to take a new look to those legal provisions. In particular, it is proposes to conceive of art. 1456 as divided in two parts. The first one establishes a rule as to when duress has to be considered verified, on the basis of an in abstract assessment of the potential cases (the reactions to be considered would be those of a reasonable person). The second one takes care of the border-line cases produced by the previous rule: in this sense, it is read as establishing a standard that facilitates decision-making on the basis of an assessment of the similarities or the differences between the case at hand and two cases that are taken as models of concurrence or absence of duress. This approach takes notice of the problems regarding the proof of emotions, but does not dispense from the need of a careful justification of the decision finally taken.
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Daniel Cruz, María de la Luz (2020). Libertad de prensa y daños. Consideraciones en torno al estándar de cuidado aplicable a los medios masivos de comunicación. Santiago: Thomson Reuters, 244 pp.
Aunque por el título principal podría pensarse en algo distinto, esta monografía trata de la responsabilidad civil extracontractual en uno de sus campos más complejos: el de la responsabilidad civil de los medios de comunicación, y que envuelve, siempre, tener que resolver un conflicto de derechos: por una parte, la libertad de emitir opinión y de informar sin censura previa (art. 19 n.º 12 de la Constitución) y, por otra , derechos de la personalidad como el derecho a la honra y a la vida privada (art. 19 n.º 4 de la Constitución). Como es sabido, este problema se hace más arduo cuando se trata de funcionarios públicos en los que el umbral de protección de la honra y la vida privada disminuye significativamente [...]
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Constitution and intellectual property: a new framework to balance the creation and access to knowledge
The current constitutional provision on intellectual property (Art. 19 No. 25) is deficient since it is opaque regarding the economic and social objectives of said type of property. For this reason and considering the growth of the intangible-based economy in the 21st century, it becomes necessary and opportune to design a new constitutional provision that does not thoughtlessly refer to the general rule on property, in order to show the instrumental nature of intellectual property, as a tool to solve the “public good” market failure that affects the goods that are its object (which are non-rivalrous and non-excludable). Therefore, a new constitutional rule must be based on the promise of intellectual property, that is, optimizing the equilibrium between creation and access to knowledge, thus providing a general framework so that the legislator, public offices and adjudicators can then “update” such equilibrium considering the state of development of the country. The article proposes a text of constitutional provision that can be grounded in Ralwsian terms, that is, from a hypothetical scenario of “original position”. Moreover, the article explains that the proposed text is not exhausted in a mere programmatic declaration, thus mentioning what type of concrete effects it can produce within the legal system.