Search Results
Search Results
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PRIVATE LAW AND CIVIL PROCEDURE: BEYOND INDIVIDUAL INTERESTS
This work aims at demonstrating the way in which private law and the civil procedure are not only committed with individual interests, but also with certain social values and develop public functions. Some examples reflecting this public dimension of private law and the civil procedure are explained herein. Finally, the influence of this approach –when rethinking on these institutions that represent both legal spheres– is assessed.
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PUBLIC REGISTRY FAITH IN THE CHILEAN LEGAL SYSTEM. CONSIDERATIONS ON ITS EXISTENCE AND VALIDITY
The public faith of the registry is a widely recognized principle in real estate registry law. Its existence and validity, however, are not fully accepted in our country. Moreover, it is argued that its absence would be consistent with the established system of acquisition of ownership. This paper argues that the principle exists in Chile and is in force, and that both its existence and its eventual incorporation by means of an express rule are not necessarily inconsistent with the current system of ownership.
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THE NOTION OF NON-NEGOTIATED TERM AND ITS IMPORTANCE IN THE EFFECTIVE APPLICATION OF INCORPORATION AND FAIRNESS CONTROLS
The concept of a non-negotiated term is examined as a fundamental concept in the task of delimiting the objective scopes of application of incorporation and fairness controls. It is argued that the defining characteristics of a non-negotiated term are contractuality, pre-disposition and imposition. It is specified that, if generality is added to the aforementioned characteristics, the regarding non-negotiated term may also be qualified as a standard term. Within the framework of the treatment of the characteristics of non-negotiated terms, aspects in which national jurisprudence has been erratic and which have had an impact on the protection of the adherent are clarified. In particular, it is clarified that the predisposition alone is a sufficient indication to presume that there has been no possibility of negotiation; it is also clarified that the mere fact that certain data is filled in by the client or that the client can choose between different terms which one, specifically, will govern the contract, does not imply a transformation of the chosen term into one negotiated individually, much less does it imply the entire transformation of the contract into one freely discussed.
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Editorial
La prescripción es una institución que sigue presentando múltiples perplejidades. Tanto en su versión como modo de adquirir el dominio, como en aquella que configura un modo de extinguir acciones, tiene un tratamiento parcialmente unificado en el Código Civil chileno; aunque ello es más bien aparente y solo ha sumado vicisitudes que la dogmática y los tribunales deben explicar y sortear constantemente.
La prescripción extintiva ha merecido profundos estudios. Su falta de tratamiento organizado, dentro del Código Civil y en las diversas leyes especiales que la prevén, y las disímiles características que ostenta según el tipo de acción que se quiera ejercer, terminan por configurar un contexto sin sistematización. Este escenario tan amplio y complejo, en último término, desplaza la certidumbre y seguridad jurídica, valores en los que esta institución, precisamente, encuentra parte de su justificación.
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THE DIES A QUO ON EXTINCTIVE PRESCRIPTION IN THE CONTEXT OF DAMAGES ARISING FROM DEFECTIVE SANITARY PRODUCTS. A COMPARATIVE APPROACH
The extinctive prescription of the action for compensation for damage caused by defective medical devices is characterized by the complexity involved in determining the moment from which the period begins to run. This problem invites us to reflect on whether the computation of the limitation period will start from the consumption of the drug, or from the moment the damage manifests itself. In this paper, we propose to make a comparative exposition of the matter by reviewing our legal system, the French and the Spanish ones.
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PUNITIVE DAMAGES, ESPECIALLY TO PROTECT THE COLLECTIVE OR DIFFUSE INTEREST OF CONSUMERS
This paper studies critically the punitive damages regulated by law n.° 19496, with the objective of detect and evaluate the positive and questionable aspects of its regulation in the framework of consumer protection, through a dogmatic methodology based on regulations, bibliography and national and foreign jurisprudence, which allows a qualitative analysis of such sources in order to present and elaborate the hypothesis, theoretical frame- work, reflections and conclusions. In sections i and ii, a theoretical framework is formulated, represented by an approach to punitive damages on the basis of national and comparative backgraunds, through the spe- cific study of their nature and function, and it application in Chile by reviewing the discussions that have taken place in this regard, particularly regarding the alleged problems of constitutionality and the reparatory nature of civil liability. The hypothesis is that the regulation of punitive damages in the aforementioned law is positive because it contributes to sanctioning, deterring and preventing serious supplier misconduct, but questionable with respect to the regulation of its quantification; aspects that are developed in section iii.