Vol 19, No 39 (2020): July-december

The reception of legal responsibility in family law has become a tendency that has found room in the Chilean legal framework. Thus, an analysis has been performed to the thesis tendencies that reject the possibility of compensating and those who do accept it, mainly due to the recent transformation undergone by family law, supported by the most recent tendencies in matters of damage compensation. With this purpose, this work aims towards reviewing the main arguments held by those seeking to compensate for the unfulfillment of the marriage duties.

This article presents an analysis regarding the international protection given to women in matters of the inequality from a capacity and protection of women's right perspective in the jurisprudence of the Inter-American Court of Human Rights. The work has been structured in two parts, in each one of those different considerations are held about the documents found in the documental and exploratory research. As conclusion, this work states that even if there are important legal and normative advancements, the persistence of the atrocious violations still committed against women around the globe in general and in Latin-America particularly, ends up being a fragile security and vulnerability frame made evident
in those countries. 

The main objective of this work is making evident that the Spanish legislation does not regulate, forgets and even harms many of the rights of Trans people. For that, this research performed a study of the resolutions, recommendation and reports of the international organization, as well as the international norms and jurisprudence. As a result of this, the research was able to prove that Spain is far behind countries such as Argentina in matters of gender identity. One of the conclusions of this work is that the Spanish State should approve a new gender identity law that regulates this right from a de-pathologizing perspective, and apply gender studies in all of its laws.

This article examines the state of the conventional dialogue in Chile, taking three sentences of the Inter-American Court of Human Rights as a reference by considering also three very sensitive problems of our transitions towards democracy: we refer, in the first place, to the impugnation to the human rights violation, to the excessive extension of the competence of the military courts for processing civilians, and to the Mapuche conflict through a legal process resolved conventionally. While it is true that the State has assumed, in general, the obligations imposed by the decisions of the court, it can be seen that it has not done it in a timely, appropriate and obedient manner. Furthermore, internally it is far from applying conventionality control completely, i.e., displacing the norm by that contained in the pact. This is the greatest deficit in the integration progress of the Chilean State to the Human Rights jurisdiction.

This article aims towards describing the concept of goods and services in the Consumer Rights Directive of the European Union (EU) and the Colombian Consumer Statute for later analyzing in each one of these legal systems how should they be understood in a digital market context. This will allow, through a descriptive methodology, the consideration of the legal treatment of goods that employ the digital elements for their functioning, also known as Internet of things (IoT) in Colombia. After presenting the legal effects arising from a consumption relationship of this kind, this work will propose that the Colombian Consumer Statute, at its actual state, is not enough for facing the fourth industrial revolution and the digital market and thus proposing a series of substantial and procedural measures necessary for allowing the engagement of Colombia with the accelerated growth of electronic exchange.

This article has as its main objective determining how the Special Indigenous Jurisdiction (JEI in Spanish) and Special Jurisdiction for Peace (JEP in Spanish) are coordinated, as well as the role performed by indigenous communities in the applied justice of the post-agreement. To achieve this, the study employs the empirical-analytical and the exploratory-descriptive approach from the Embera Chamí case in Riosucio (Caldas), supported by dialogues with the community about their knowledge of the Special Justice for Peace (JEP) and the possible conflicts that might arise from its application in the sanctioning and criminal justice dimensions. As a result, the study finds that the jurisdictions interact with each other in the framework of the unity, territory, culture and autonomy principles and founded in institutional harmony, legal diversity and understanding between cultures; which allows that the coordination between both finds multiple expressions. As a conclusion, the study finds that far from assuming a passive role and despite the conflict between competences, the Special Indigenous Jurisdiction revindicates different roles in the post-agreement justice in matters such as assistance, attention, integral repair of the victims, construction of truth and memory, re-incorporation of former-combatants indigenous people, among others.

This article has as its main objective to help in the understanding of the ethnic-racial identity concerning the discrimination contexts (multiple, intersectional and institutional) based on race and its implication for the law against discrimination. The approach for the discrimination problem is referred to a series of perceptions, given that the term race is derived from the constant struggle and controversy in the social relationships, political and legal frameworks in Latin-America. In fact, the right to non-discrimination from a decolonizing perspective is attentive to the principle of equality and tries to bring near the historical need of those subordinate and stigmatized, especially in front of the Latin pro-slavery heritage. The analysis of the identity problems is well suited for elucidating the complex discriminatory situations inserted in scenarios which structures reinforce the subordination of the Afro-descendants, this being a way of eliminating the restriction to rights. This study was aided by a qualitative methodology and a data collection through bibliographic review in books, scientific articles and websites to go deeper in the knowledge of the problem.

Through the constitutional jurisprudential analysis method it can be said that based on the C-108 Sentence of 1994, there is a constitutional precedent that recognizes in a reiterated way the competence of the Colombian Constitutionalist Court for performing, through an unconstitutionality action, the abstract constitutionality control of the relative legislative omissions, which is a competence that has progressively widen its audit margin and has allowed the constitutionality control to not be exclusively restricted to constitutional scenarios of infringement to the equality principle, but also to be performed to any incomplete legislative development that turns out to be incompatible with the Constitution. For this reason, once this constitutional precedent is analyzed, this work proposes and understands the unconstitutionality by relative legislative omission as the lack of appropriate and timely legislative development of the Constitution that is verified in the partial non-compliance of a concrete constitutional duty and binding to be legislated, which is derived from the evolutionary and systematic interpretation of a discriminatory legal disposition, deficient or incomplete, that produces the infringement of the equality principle, the transgression of the right to due diligence or another constitutional guarantee; thus restricting or making difficult the enforceability, direct application and material efficacy of the Constitution.

Colombian military forces play a very important role framed within the defense of the national security and State's interests; it has also acquired an important role within society by developing labors and functions that, within several aspects, are not of their correspondence. Taking into account the functions proper to their activities and executions, the main purpose of this article is to display them and see how they detach in the operational realm, which is why an analysis of the public policies of the 2010-2022 period is necessary; this period condensates this change and is the period in which the conditions that propitiated the conjunctural factors and their political and economical problems are visible. For this, a comparison was performed to determine the existing inflexion in the public policies and thus establishing the changes and restrictions. The methodology employed for this was exploratory at the beginning and later explicative in its development and analysis, using secondary data collecting techniques, i.e., because of how unexplored this topic is in Colombia, we felt compelled to expose it, and this leads us to seek for reliable sources that tried to explain the topic from  other perspectives; we then moved forward to the explanation of the hypothesis raised about it regarding the phenomenon in question (Hernández, Fernández-Collado y Baptista, 1997, pp. 44-52), taking into account that the sources were based on alternative data and analyzed public policies that tackled national security and national defense topics. Finally, an analysis of the results was performed and conclusions weremade to answer the research question.

This article aims to demonstrate that, after looking for an alternative to the apparently feeble sanction that the Competition Court (Tribunal de Defensa de la Libre Competencia or TDLC in Spanish) imposes to those responsible of collusion, the legislator incurred in imprecisions that might compromise the institutionality that regulates and sanctions it. It proposes the contrarieties of identifying it as a felony by applying the criminal justice standard of proof, the debatable efficiency and sanctioning it in the said court and its effect for purposes of the right to freedom of competition. As a methodology, this piece of work employs a theoretical research methodology and a collection, review and analysis of doctrinal works. Because of the judicial evolution of collusion, the research is aimed by the logicalhistorical method in a complex structure that, because of the new regulation, binds it now with a specific standard of proof. The results make evident fragilities in the observance of the non bis in idem, existence of contradictory sentences in sanctionative and criminal law administrative headquarters, as the inexistence of effective jail for its felons. The conclusion confirms dogmatic inconsistencies in its typing and that, considering as mitigations the quality, quantity and entity of the proofs and fundamentally the high standard for the appreciation of these, we are in front of symbolic establishment of its penalty. With this, the preventive, corrective and sanctionative purposes of the Law are not protected; it is then suggested to strengthen the attributions of the Sanctioning Administrative Tribunal and standard of proof that allows an adequate and efficient sanction of collusion under the objectives of the freedom of competition law.

This article contains a description and a review of the documentary character of the international normative origin of the best interest of the child principle and its legislative reception in the Chilean legal system. Furthermore, this study offers an analysis of the jurisprudential treatment of the said principle, and a review of the main foreign doctrinaire interpretative tendencies on the said undetermined clause, describing the diverse criteria of objectivity or rationality as a way of overcoming the determination that it might cause. Thus, the study observes a treatment that lacks uniformity in the courts that are well known on these matters, which is a situation raised by interpretative problems.

More than a century ago, the appeal to comparative law arose in different spheres of the judicial thought in several Western countries. Nonetheless, in the constitutional law is an activity more characteristic of the late WWII period. With the pretension of contributing, although minimally, to the overcoming of this history of limited inter-connections between comparative and constitutional law; in this article, we seek to analyze the function of the method in comparative constitutional law with a special emphasis in the theoretical hypothesis of the viability of an epistemological schematization of the categories that might integrate what will be named as comparative constitutional methodology. Thus, we must initially rebuild the origin of the comparative constitutional law, its objectives and the importance of the problem in any comparative constitutional research, given that its epistemological autonomy, especially concerning the positive constitutional law, constitutes a theoretical supposition of the proposition that will ultimately be defended in this article.

The practice of graffiti is the object of the most varied considerations, which discuss its artistic value, its potential as a means of communication and expression of groups of marginalized individuals and, especially, its illegality. One of the theoretical constructions most adopted when dealing with graffiti is that of delinquent subcultures, however, there is a lack of detailed analysis about the adequacy of classificating graffiti as such. With that in mind, we confront the classically defined characteristics as belonging to delinquent subcultures with information about graffiti coming from areas such as communication, arts and sociology, seeking to identify their correspondences and distancings. It can be seen that the correspondences between graffiti and the delinquent subculture are less numerous than their distancings, and also refer to aspects that are not eminently negative, which indicates the need for special attention when graffiti is approached as a delinquente subcultural practice.