Search Results
Search Results
-
STANDING TO SUE OF THE PUBLIC PROSECUTOR’S OFFICE TO CLAIM ABSOLUTE NULLITY IN THE INTEREST OF MORALITY OR THE LAW
Among the subjects entitled to request the declaration of absolute nullity of an act, article 1683 of the Civil Code mentions the public ministry. This legitimation presents two interpretative difficulties; the first one, that the former can act “in the interest of morality or the law”, which is usually opposed to a pecuniary interest; on the other hand, that the latter has evolved in terms of organic structure, content and powers. Given these difficulties, two theses can be put forward; the first, aims to conclude that the Public Prosecutor’s Office has lost such powers; the second, which this work defends, is that it maintains them. For these purposes, the modifications experienced by the Public Prosecutor’s Office are analyzed and arguments are made to give practical use to said article.
-
LEGAL PROVISIONS ON INTERPRETATION OF CONTRACTS: RULES OR MERE ADVICE?
This article addresses an old debate concerning the pragmatic dimension of legal provisions on contractual interpretation. The article uses a case decided in a dissenting manner by the lower courts and the Supreme Court as a common thread. It follows from our analysis that those provisions would not be rules (in a strong sense of bindingness), nor mere advice (in a sense of permissions), but they belong to the category of interpretation standards, that do not impose a result but a burden of justification, whether they are used or not. This form of understanding explains, prima facie, the Supreme Court’s power to modify decisions in cassation on the merits, and urges to deepen on what we understand by breach of law and error.
-
Non-discrimination duties in private law
Political commitments against discrimination pose the question to what extent individuals should be bound by them. This dilemma is challenging since the wrong combine individual and collective dimensions which compatibility with private autonomy may emerge in different ways. The place of duties not to discriminate within private law may be clarified if we understand that the meeting between what is individual and collective about them does not occur in their application to particular cases, but in their establishment. Once this point is made clear, this work reflects on the tensions between the commitments against discrimination and private law, proposing alternatives and clearing up doubts that could be relevant in the constituent process recently initiated in Chile.
-
IS IT POSSIBLE TO APPLY THE ECONOMIC ANALYSIS OF CONTRACT LAW AND CONSUMER LAW?
This article aims to justify the application of the L&E, both to Chilean contract law and consumer law, through the principles of good faith and consumer protection, respectively. This work highlights the application of the principle of efficiency as a relevant criterion in contract matters, and above all, in relation to consumer law. Although the justification for the application of the L&E to contracts and consumer law is the same, its application is different. In this way, the L&E would be applied to contract law through the principle of good faith, or the theory of general clauses, recognizing the principle of efficiency as a contractual principle, and to consumer law through the principle proconsumer.
-
SECURITY AND LEGAL CERTAINTY: RELEVANCE AND FUNCTIONS OF THE FOUNDATION OF THE PRESCRIPTION WITH SPECIAL REFERENCE TO THE SOLUTION OF A DIFFICULT CASE
Legal certainty accomplishes (among others) the function of being a general principle of our legal system, assuming a fundamental role in resolving so-called “difficult” cases. Since we start from the premise that difficult cases must be resolved considering the values and principles that support the civil institution involved, all those cases related to the statute of limitations must be interpreted in accordance with this general principle of law –and legal value– which undoubtedly serves it as a base. Faced with the particular and insistent question of whether the interruption of the statute of limitations requires the mere presentation of the claim or the legal notification of the same within the term, it is this principle the one that offers good reasons to opt for the second option.
-
ABOUT THE ARTICULATION BETWEEN THE LEGAL GUARANTEE AND THE VOLUNTARY GUARANTEE IN THE CHILEAN CONSUMER LAW: CONCURRENT TERM AND RESIDUAL TERM
The deficient legislative technique used by the LPDC to regulate the conformity guarantee regimes, has implied the emergence of various interpretative doubts, among which is the eventual extension of the term of the legal guarantee –and its effects– to all temporary effectiveness of a possible voluntary guarantee.
A systematic reading of the LPDC and its liability statutes lead to a negative response, supported on the basis of its internal rationality and the interpretation of the rules of guarantees, in line with those that establish duties of information and publicity.