Vol 20, No 42 (2021): July-December

This article’s goal is to discuss the current Brazilian crisis as a Latin American and the Caribbean crisis. Thus, this article methodologically translates the debate of the predominant bibliography upon democratic crisis towards a theory of societies in three levels. The first part presents and synthetically develops the idea of a theory of society in three levels. The second part discusses the main elements for the comprehension of the current Brazilin crisis. Lastly, the article states in its conclusions that the current Brazilian crisis must be understood as a crisis of our America and, thus, the defense of the welfare state in Latin America and the Caribbean must go beyond the nation-state. Thereby, the results indicate the need for greater contact among the Latin American and the Caribbean countries as a way for ensuring better protection of democracy and the welfare state in the region.

The 2030 Agenda integrates the Sustainable Development Goals (SDGs) through the SDG 4, quality education. The ‘2030 Agenda’ proposes education for sustainable development as one of the pillars to achieve just, equitable, inclusive societies and in harmony with nature. Within this framework, legal clinic training is an inspiring model for strengthening education for sustainable development in the country. This paper presents the results of documentary research on real work cases of legal clinics in Colombia. In addition, it analyzes the work of various legal clinics across the world in order to explain the correspondence between the global legal clinic agenda and the 2030 Agenda. The paper finds that Colombian legal clinics play a relevant role in promoting sustainability through their integration in the SDG framework, having social justice at the core of their pedagogic goals and social projection.

The objective of the article is to reflect upon the dynamic burden of proof and the probationary initiative of the judge in the framework of the popular action as a figure through which, eventually, the protection of the collective rights might be achieved. The methodology employed was based on the documentary and jurisprudential review. One of the achievements of the article was the prevalence of collective rights over the probationary rituality. Thus, it determines that even though the claimant must provide the burden of proof, it is also true that the judge must consider the goals of the constitutional public actions towards the real protection of the rights, which will eventually imply the deployment of its officious faculties in the matter. The main conclusion refers to the fact that the claiming party has the burden of proof in the popular claims towards demonstrating the affirmed facts, but emphasizes the fact that, in the concrete case, the burden of proof might be distributed for different reasons. Likewise, the judge finds her or himself to advance its officious duty for exceptionally decreeing and performing proofs for procuring effective judicial protection without filling proof deficiencies due to a lack of diligence by the parties.

The responsibility of the State has been framed through titles of imputation that go from the subjective  responsibility of the failure of the service, going through the presumed failure, until culminating in the objective responsibility; circumstance that determines that in the obligation to compensate damages as a result of a failure in the service there is an irregular action, while in the objective one, only an action by a public entity is necessary, and those who suffer the damage are not obliged to bear it. In any case, the responsibility of the State has been analyzed from these two great classes of attribution. For this reason, this article, in order to seek a different perspective, aims to study it from the violation of public ethics, to determine the basis of attribution of responsibility and the obligation to repair damages, as a consequence of the contracting activity of the administration; which has allowed to obtain as a result that the contractual responsibility of the State derives in most cases from the violation of ethical postulates, which allows to conclude that public ethic constitutes a title of imputation of responsibility of the State. This article employed a propositional-analytical methodology.

The objective of this article is to describe corruption as a social phenomenon that arises between the relations of the State as regulator and individuals as recipients, from the interweaving of different actions, particularly of institutional legitimacy in the public and private spheres. Methodologically, the criminal classification is taken as a reference in order to establish the possible scenarios (public and private) where corruption actions are carried out at various levels. Each crime is analyzed according to a minimum, medium or broad scale, trying to serve as an input to understand the dynamics of corruption and its relationship with the State. To this end, a notion of Large-Scale Corruption is linked, an instant little analyzed and of great importance for the Colombian legal system. It is then found that the material situations do not find punitive correspondence with the existing norm or exceed their limits among the typified crimes, thus urging their inclusion as a specific modality.

The main objective of the article is to show the scope of the hermeneutical revolution in the contemporary world, as a new interpretative rationality. As a methodological element for its accomplishment, the study employed the historical method based on the study of its traditional elements, which called into question the so-called scientific rationality that emerged from the seventeenth and eighteenth centuries. As a result of this, the study presents the new forms of understanding law and legal science immersed in the theory of legal systems, and of the models of application of law in times of constitutional State, in the opening of the same concept of law in the XXI century, to new realities and legal contexts. The study concludes that hermeneutical rationality is a valid and necessary horizon of interdisciplinarity for law and other perspectives of knowledge.

This article presents an analysis, from a legal perspective, of the protection status of persons with disabilities in Colombia based on the declaration of the State of Economic, Social and Ecological Emergency in the national territory in the face of the spread of Covid-19, generating recommendations that ensure legal protection in the Colombian territory. The development of the article lays out the situation of people with disabilities during the pandemic, what are the legal protection measures ordered by the government and what recommendations emerge as relevant for effective legal protection. The proposed approach is based on a dogmatic methodology of the basic-legal type, since the object of study is constituted by the Colombian regulations on disability that arises from the declaration of Emergency in national territory, using secondary sources of research, analyzing the law and doctrine applicable to the object of study. With the aforementioned, it will be shown that in times of pandemic the Colombian State has tried to adjust to the UN guidelines, aiming to maintain the guarantee of rights in an equitable and fair manner, however, some precise recommendations are made, which are pertinent in the context of the current guarantees discourse.

This Works analyzes the economic foundation that motivated the presentation of a new Project of labor reform during the government of Argentinean President Mauricio Macri. For that, the article employs a historical perspective through the reconstruction of the transformations suffered by the labor legislation, specifically by the working contract law, which is the one that rules almost all of the labor agreement. The article also tackles the evolution of the labor relationships in the last decade and the initiatives of Argentinean entrepreneurship of achieving more favorable conditions for more flexible use of the workforce. The analysis shows that the labor reform is part of a mid-term strategy for improving the conditions for capital accumulation in Argentina, including an increase in the exploitation of the workforce. The methodology employed is based not only on the qualitative analysis of the legislation sources but also quantitative analysis of the national and worldwide statistical information. Several types of sources are used for that, such as labor legislation, agreements and covenants of different historical periods, national and international statistic series, and contributions made by other authors.

Current Constitutional Law has developed its interpretation techniques to avoid the hermeneutic tools from the legal interpretation, which are inadequate for solving conflicts related to Human Rights. The principle of conforming interpretation is among these tools. The objective of this article is to verify its application in Chilean jurisprudence. This research hypothesizes that it is not applied every time it is required, which results in different solutions every time it is invoked in comparison to those in which it is not. By employing the dogmatic and the case method through two legal sentences, this study analyzes its practical implementation. The study concludes that one of them applies it properly, while the second one omits it by sentencing something different than what would have been sentenced if the principle was considered, nonetheless, both sentences had to embrace the request of those who requested judicial intervention. Thus, the article states that a constitutional modification might allow a binding application for all cases.

There are different theories that try to give a satisfactory answer to the question of why people should obey the law. One of these proposals is the principle of fair play (or fairness). It says that if a person, who is part of a social cooperation scheme, benefits from the efforts of the other participants he/she is bound to do his part; otherwise, he/she acts unfairly. Several scholars have recognized the value of the principle, but others have demonstrated with good arguments that it has many difficulties to justify a general duty of obedience in complex schemes such as the State. The main objective of the paper is to assess, by using the literature review method, the virtues and weaknesses of the principle of fair play as a theory of political obligation. The obtained conclusion is that this theory could be an appropriate proposal as long as it satisfies some requirements.

With the purpose of contributing to the advancement of conceptual elaborations regarding transformative mediation in the family sphere, we present this writing to the readers’ consideration, which introduces, as a novelty, the concept of vulnerability as a quality characteristic to the human condition, and regarding family, would place some of its members in a disadvantageous condition, however, we want to show as a result that if the pillars of revaluation and recognition of the other are fully met, in line with exceeding the individualistic vision with which the conflict negotiation has been carried out, results could be achieved that, in addition to preserving the unity and harmony of the family, would minimize pain, suffering and damage in crisis situations. The research was oriented with the qualitative method through the multiple-case study and the observation, interview and mediation encounters techniques were used. Transformative mediation is presented as the opportunity for each party in conflict to have a better understanding of themselves and the other and, therefore, facilitate making decisions that improve family relationships. It is concluded that one thing is that the conflict qualifies the relationship that identifies the members of a family and another, very different and generally misunderstood, the vulnerability that distinguishes them as protagonists in said relationship.

This work is motivated by the undeniable problem generated by the deficient regulation of informed consent and autonomy of will of the patients in the Cuban judicial ordinance, linked to insufficient knowledge and development in the medical practice. Thus, based on the analysis of the theoretical and practical presuppositions of this institution and a study through comparative law, the study proposes some improvements. This research employed the analytic-synthetic and the inductive-deductive methods, as well as those proper to the judicial researches: the judicial-exegetic and the judicialcomparative ones. These methods are supported by the bibliographical review research technique. As the main result, this study proposes a resolution to the Public Health Ministry, directed towards the adequate regulation of the informed consent, the autonomy of the patients will, and the right to sanitary information, based upon the theoretical and practical presuppositions systematized in the research and that constitute guidelines in the process of its interpretation and application.

The purpose of this article is to analyze the legal viability of the application of legal institutions that ensure contractual justice, such as excessive disproportion and excessive onerosity (hardship), regulated in instruments belonging to the lex mercatoria or international commercial law, particularly in the Unidroit Principles, in national legal businesses given the deficient regulation that our private legal system has in the face of these circumstances of unequal benefits; to fulfill this objective, a comparative study of the institutions that ensure contractual justice contained in the Principles with those contained in Colombian private positive law is carried out, and a study of various cases addressed by national and international arbitral justice, as well as by ordinary jurisprudence in the face of the possibility of complementation and integration of the norms of the Unidroit Principles in national legislation. All of the above to conclude that it is legally viable, through the domestic commercial source system and the purposes that the preamble of the Unidroit Principles expressly establishes, to directly apply the figures of excessive disproportion and of excessive burdens contained in this instrument of uniform law to national commercial legal businesses.

This document shows the conditioned precedence relations identified in the constitutional jurisprudence in cases of collisions between the fundamental rights of freedom of speech, honor, and good name derived from the journalistic practice. After analyzing these concrete cases, it is evident that proposing a lesser harmful solution is a challenge for the judging part because there is a scenario in which hierarchically comparable rights collide. For that reason, the judging part must weigh which principle will precede the other one. Likewise, despite the reiterated collision among the rights studied here, there cannot be an egalitarian solution for all of them, given that the effects of the weighing apply to concrete cases. Nonetheless, based on a linear follow-up of the constitutional jurisprudence, the study concludes that a higher or lower grade of veracity and impartiality of the information is a determining factor for inclining the balance towards one place or the other.

The present work addresses the precedents of the penal cassation, it’s teleological components and the constitutional reform of 1991 in Colombia, in order to propose from a constitutional approach from a skill of contesting, focused in the effective control of the judgments of the second instance, to allow to overcome the classic extrapolated nomophylactic function of the state that emerged from the French Revolution, without propitiating the third instance. To develop the problem of the investigation there went forward a rigorous documentary the study, to which a descriptive and analytical method was applied to, from the precedents of the cassation and its juridical-political nature, the teleological essentials of the resource and its relation with the ideal of justice that supports the current social state based on the rule of law. The study shows that the nomophylactic function of the cassation yields before the effective tutelage of the fundamental rights of the parts, the repair of the inflicted grievance, and the search of a just democratic order. Consequently, in the new philosophy of the Colombian State the cassation is named to control the ambiguities and inequities of the judges, beyond the deeprooted dogmatic conceptions of the extraordinary resource.

The main purpose of this text is to analyze the scope and evidentiary value of clinical history in the legal-procedural field, in the light of the Cuban legal system as opposed to the disputed definition of its character as a public or private document. As a secondary objective, it seeks to identify those factors that constitute legal risks associated with clinical history and that affect their evidentiary value. With these aims, the methodology followed was essentially based on the methods of analysis-synthesis, induction-deduction and hermeneutics, applied within the framework of a documentary, argumentative and exploratory type of investigation. Among the results, the behavior of the state of the art of the subject in the country and the legal shortcomings in this aspect are shown. The conclusion points out the need to harmonize the health legislation that refers to the clinical history with the requirements established from our civil procedural norm regarding the public or private character of the documents.

The article approaches a topic that has acquired great practical relevance in Cuba for the growing development of the contractual relationships and the existent modifications starting from the promulgation of the Ordinance-law n.° 288 of October 28th 2011 and Decree 320 of December 31st 2013: the simulation of the juridical business, especially of the sale and purchase under the appearance of a donation contract that previously, for prohibitive reasons, sought to be achieved through other juridical businesses. The objective of the present investigation is to base the possible validity of the feigned sale and purchase contract, starting from the existent doctrinal and legal suppositions. The work will follow a qualitative methodology by means of the use of methods and technical characteristic of a social investigation, of juridical type, like the historical-logical one, the exegetical-analytic and the artificial comparison methods. The main result consists of the proposal of the dogmatic budgets that establish the possible validity of the feigned sale and purchase once declared null the feigned donation business that served as a mask.

This article proposes the application of the whistleblowing institute in the case of the Chinese medic Li Wenliang by considering him a whistleblower due to the alerts he emitted about the COVID-19 pandemic. In face of the absence of protection and the silence imposed on him the following was asked: Which judicial conditions express the right for protection to the the medic that voluntarily exposed the specific risks for public health? The article concludes that the right for protection for the informer in good faith is backed by the whistleblower figure, corroborated by Human Rights and guaranteed by international cooperation, thus expressing the necessary judicial conditions for solving the Chinese medic case. The methodology employed was based on the deductive approach; starting from the whistleblowing institute the case of the Chinese medic is then assessed. The right for protection by the Chinese authorities was legitimized by Human Rights and legally by the whistleblowing figure, for being an informer on specific risks for public health. The medic was a holder of international personality, being, thus, a subject of law in front of the international institutions eyes and being legitimate the demand for Human Rights as a way for impeding future retaliations. It is concluded that the right for protections is a compromise of moral aspiration which judicial and political validity depend on international cooperation.

The objective of this work was to know the way in which the political struggle developed in the cyberspace social network Twitter in the period June 2019 - June 2020, determining the level of adherence of the population, effectiveness in the achievement of new followers, level of informative production, effectiveness and type of the disseminated messages, apparent objectives, most recurrent themes, deduced alliances, and the map of conflict of the political parties. It begins with a brief review of the theory and related previous research. The results show an asymmetric, irregular and not homogeneous development of the struggle of the Peruvian political parties. The main characteristics of the political struggle in in the Peruvian cyberspace are identified through the use of the Twitter social network by 10 of the 24 political parties registered with the JNE as of June 2019. Of the 10 selected parties, four have not registered communicative activity (PAP, AP, SP and PPC); two, little activity (FP and PM); two, medium activity (PNP and FA) and two, high activity (APP and C). The PNP and FP are the most confrontational, while the majority try to avoid obvious antagonism, and one (PM) avoids criticism or comments against parties or political leaders.

This article discusses the threats that information technology companies can present to fundamental rights and constitutionalism, in the face of data capture, by individuals for monetary purposes and without a forceful response from state power. We highlight the vulnerability of people and the behavioral influence carried out through algorithms and other mechanisms connected to the internet. Based on documentary, bibliographic and normative research, the ‘surveillance capitalism’ proposed by Shoshana Zuboff, the guarantee of privacy and the transparency of companies are approached. A new way of accumulating capital is identified as well as the inadequacy of traditional regulatory mechanisms to combat its excesses. In the end, it points towards the need for an effective digital education as a solution to digital manipulation and to combat the vulnerability of users and their rights.

This article aims to address the study of the transition regime of the 1996 law of 2019 and carry out an analysis of the procedural impact that this entails in the face of ongoing processes, those already completed and those that can be advanced, and the impact on other jurisdictional processes related to this issue. For this, an analytical theoretical study was carried out, since, based on what is established in the forementioned law and jurisprudence, the way in which the new capacity regime generates great changes in the jurisdictional process requires an interpretation adjusted to the National Constitution. To conclude that when moving from the incapacity regime to the capacity regime, not only a paradigm shift was generated in terms of aspects of a substantial nature, but also had a great impact on the procedural law rules from the point of view of repeal of norms, the coming into force of others, regarding the procedure that can be initiated in the transition regime, as well as the suspension of the processes in progress and the regulation of the processes that were legally completed at the time of entry into the validity of the law 1996 of 2019.