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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.
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FUNDAMENTALS OF GERMAN MEDICAL LIABILITY LAW IN THE FIELD OF AESTHETIC SURGERY
The German medical liability law makes a distinction between the responsibility for treatment mistakes and responsibility for lack of information. Interventions in aesthetic surgery is, as a rule, a medical practice when the physician is below the standard in force in the respective special field of aesthetic plastic surgery. However, in the case of lack of information liability (tort) is based on bodily injury, according to the jurisdiction of German courts is inherent in any medical intervention in body or health status of the patient. However, bodily injury is not considered unlawful if the patient, after having been duly informed, has given valid consent (informed consent). Informed consent, which the treating party should give evidence at trial, can justify the bodily injury. In the aesthetic operations it is of practical importance, above all, the responsibility for insufficient information on the risks of the respective intervention. If aesthetic surgery, as no medical indication occurs often, the requirements for patient information are particularly stringent. In this sense, the jurisdiction requires a extensive, intense and sometimes “thoughtless” information about imminent risks, in the case of offset to some extent the purely “aesthetic indication” by the qualified patient consent after extensive information (intensely informed consent ). If it is found that the information was insufficient, doctors and hospitals may be liable for damages and ordered to pay compensation for personal injury.
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THE NEW PRINCIPLES OF FAMILY LAW
This paper presents a critical analysis of the new principles of family law, shows the influence of Human Rights in the great transformations of family law and especially in the configuration of its new principles. Insofar, a systematization of these principles is provided, and we propose to advance in their subject matter and identify their principal manifestations in positive law.
We propose as new principles of family law: the protection of the family, the protection of marriage, equity between the members of the family (spouse and children), the protection of the weakest in the family relationships (best interest of the child and weaker spouse), free will, and finally, the principle of minimum State intervention.
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SELF-REGULATION MODELS ADOPTED IN CHILE AS INSTRUMENTS TO IMPROVE GOOD CORPORATE GOVERNANCE: CRITICAL ANALYSIS AND PENDING CHALLENGES
Chile has followed the guidelines of the OECD with regard to the BGC, modifying part of the regulations and promoting “self-regulation” processes. The design and implementation of this tool has been in charge of the Regulatory Body (SVS/CMF), which has issued different general regulations (NCG) for this purpose (341 in 2012; 385 and 386 in 2015; and 461 in 2021). The results, so far, have shown the failure of those, with the exception of 461, whose results will only be visible from 2023. This allows us to analyze the underlying reasons for the current state, and then carry out a proposal for improvement considering the pending challenges. This article focuses on a legal analysis of this matter.
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EFFECTS OF FULFILLMENT OF DISCLOSURE REQUIREMENTS FOR CORPORATION’S SHARE TRANSFER AGREEMENTS: STATE OF THE QUESTION AND NEW PROPOSAL
The paper investigates the meaning of the enforceability provided by the disclosure requirements that Chilean Corporations Act demands in the shareholders’ agreements on the transfer of shares. After critically reviewing the national literature and case law, it is argued that the annotation of the agreement in the firm records and its deposit in the company in practice involve little publicity, consistent with the fact that, in the rest of the statute, the register of shareholders lacks projection towards third parties, such as an acquirer of shares. In this way, the effectiveness provided in the norm does not have a different scope from the effectiveness of civil law: imposing the existence of the contract –not its obligatoriness– as part of the legal reality.