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ON THE GENERAL PRESUMPTION OF GUILT FOR ONE’S OWN DEED WITH REGARD TO ARTICLES 2314 AND 2329 AND CHILE’S “IMAGINARY CIVIL CODE” (II)
The article provides a critical review of doctrine and recent jurisprudence that interprets the rule contained in subsection 1 of Article 2329 as a general presumption of guilt for one’s own deed, based on a historic and dogmatic review of Articles 2314 and 2329 of the Civil Code. The author concludes that this understanding and interpretation is not grounded in the dogmatic context in which said provisions are conceived.
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THE INCREASING RISK AS A COMPLEMENTARY CRITERION TO THE CREATION OF UNAUTHORIZED RISK IN CAUSATION IN LAW. AN ANALYSIS IN MEDICAL LAW
This paper, focused on medical liability, is intended to analyze how causation by omissions works. We affirm that the fault, in terms of creating a not allowed risk, is identified with the normative approach. Notwithstanding the foregoing, said intellectual projection of guilt and, consequently, of cau- sation by omissions context, is possible to be answered through other approaches. In this sense, it is proposed to address the objective imputation criterion called increased risk (also known as lawful alternative conduct). It is considered that the aforementioned concept is useful in contexts in which the guilty omission cannot be considered as the cause of the damage, since if the behavior under question had not been omitted, the tort would have taken place anyway. Hence, the creation of impermissible risks can be taken as a presumption of causation in law susceptible to defensible contradictory reasoning.