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Search Results
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LINKAGE BETWEEN THE INJURED PARTY AND THE INSURER, BASIS AND REGIME: A PRIVATE LAW ISSUE
With Insurance Law reform, came the discussion about incorporation of direct action against insurer in non-compulsory liability insurance in Chile. The points of view were polarized in positions for and against, but a great part of the debate run from a distributive justice perspective. This work seeks to demonstrate that the reasons for linking the third party injured to the insurer, are reasons that respond to Private Law, that is to say, corrective justice reasons. The former gives parameters for the analysis of mechanisms that modify the privity of liability insurance contract. Likewise, it allows to understand more precisely which is the dogmatic meaning of the third party injured’s action to collect which, in the end, was incorporated in the national legislation, as it locates it as an option between two possible extremes (absolute privity or direct action). The understanding of the collect action recognized in national legislation in the context of other options, facilitates the labor of constructing its legal regime and, in particular, the exceptions system.
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OVERLAPPING ACTIONS IN CIVIL LIABILITY AND TORTS IN JOB-RELATED ACCIDENTS
Labor accidents cause damages both to the direct victim (worker directly injured), as well as to his family (repercussion victims). Those who are held responsible may be also different, the employer, or even the owner of the facilities. Chilean special legislation provides an obligatory insurance, but common liability regimes apply to the part not covered by said insurance system. Thus, there may be contractual or tort liability, or even both of them altogether. Moreover, if the worker dies in a labor accident, the heirs may file claims iure hereditatis. This means that a single event may result in a plurality of actions, in the same but also before different jurisdictions.
We pretend to show and analyze the viability of these concurrences, as well as the juridical regime and procedures following each action or suit. First we seek to analyze the concurrence deriving from the so called “cu mul” between contractual and non contractual liability, and secondly, the plurality of defendants. Thirdly, this paper seeks to analyze the plurality of plaintiffs, with a special reference to the transmission of non pecuniary loss (moral damages).
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PERSONAL CARE ROOTED IN THE SYSTEM OF DIRECT AND REGULAR CONTACT? THE IMPORTANCE OF INTERNATIONAL AND COMPARATIVE LAW
within the realm of Chilean law, the difference between having the right to personal care and the right to a system of direct and regular contact seems to be clear and evident. however, such difference varies in the light of the hague Convention on the Civil Aspects of International Child Abduction. Those variations will be analyzed in this paper, which highlights the inadequate case law practice in Chile.
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Material damage due to expropriation, beyond the cost of replacement of the expropriated property. Comment on the case Inmobiliaria Alameda S.A. with Servicio de Vivienda y Urbanización Metropolitano, Corte Suprema, 2020
This paper comments on a judgment of the Supreme Court and deals with the content of the expropriation compensation, regarding pecuniary damage. The foregoing, in order to indicate that said content is not limited to compensating the loss of property, but that, by virtue of the constitutional rule, it also includes any other effective damaging patrimonial consequence caused to the owner, as a direct and immediate consequence of the expropriation.
Thus, in a partial expropriation, in addition to the replacement cost of the expropriated property, the compensation may include the cost of the material damage caused to the existing buildings in the non-expropriated fraction of the property, as long as it is verified as an immediate and direct consequence of the expropriation, and the subsequent concretion of the works that motivate the ablatory act.
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Compensation of “pure” emotional distress claimed by secondary victims. A comparative overview of english and french law. case comment: chilean Supreme Court, january 24, 2019, n° 38037-2017
Moving away from the traditional cases dealing with death or injury of the primary victim, the Chilean Supreme Court compensated the non-pecuniary losses suffered by the wife and children of a man who was wrongly accused of being the author of a crime in the evening news emission of a national television broadcaster. A review of the current framework of protection given to honour and reputation will be useful to assess the structure of the compensation of non-pecuniary losses, distinguishing between normative and consequential ones, as well as highlighting to what extent “pure” moral losses are redressed. Additionally, the limitations imposed by other jurisdictions such as English and French law will be outlined, focusing on both the cases where secondary victims can claim such losses, as well as the restrictions imposed on the class of persons who can make such claims. All this will expose how the Chilean legal system shows signs of being one of the most liberal of the world regarding the breadth of the compensation of non-pecuniary losses, this being only one example among many others.