Thursday, November 18, 2010

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OFFICIAL JOURNAL OF THE JUDICIARY (IV TOMOS DIGITIZED)

Source: Judicial Branch.
official biannual journal featuring essays, research papers, articles and projects both of the judges throughout the Republic and of national and international jurists. Constitutes a landmark effort in the institutional life of the Judiciary. Sola


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Abanto Article by Dr. Jaime Torres.

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Tuesday, August 31, 2010

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the reification of binding precedent

1 .- Introduction.

An unfavorable emotion caused me to gain access to the claims of the Supernumerary Judge Maria Teresa Cabrera Vega and Luis Alberto Quispe Provisional Judge Shock during Judge program on Radio broadcast on "Radio Cañete on 07/24/2010 .

According to the Press Release N ° 226 - 2010-OPII-CSJL, the judges stated: "The benefits of redemption prison the penalty for work and education, semi-freedom and conditional release are not applicable to those convicted of rape of a minor "and" stressed that the invalidity of the pardon, commutation of sentence and the right of pardon for those convicted of crimes above. "

Obviously the context of discovery of the judges in question, it is noteworthy, for it "objectifies human beings, making them unrecoverable born criminals and society in contravention of the principle and right of judicial functions contained in paragraph 22 Article 139 of the Constitution of Peru more heinous crime has been committed, but just-esteem-known that these individuals comes from a society which we all belong, and indeed more so, I believe, unaware that anywhere in the world to social problems solved by punishment civilian deaths or cancellations human cell, because criminal law is not part of the mental health program policy outlined by the MOH.

is a fallacy to say that for reasons of "national security" those convicted of these heinous crimes must remain on "life without any benefit to prison," not only a fallacy, but I believe a lack elementary complex social, psychological and anthropological the judges mentioned that administer justice in the city of Lima, befitting a "police state regime, for example the Nazi Regime officials who were addicted to the hygiene legislation Racial and justified the deaths of 200,000 human beings with physical handicaps and mental and insane, and criminals, ie for the crime of not being as one.

The expression "life unworthy of being lived" (German for "lebensunwertes Leben", literally "life unworthy of life") was incorporated into Nazi rhetoric to refer to sections of the population which, according to the racial hygiene policies of the Third Reich, were denied the right to life and therefore, ultimately, should be sterilized or killed.

2 .- Development

In the philosophy of science usually distinguishes between the context of discovery and context of justification of scientific theories, the first activity is to discover or articulate a theory that is not susceptible kind of logical analysis, the only thing that fits in the context of discovery is to show how it generates and develops the scientific knowledge that is you can draw distinctions between psychological motives, social context, ideological circumstances, so they moved to a particular judge to issue a certain resolution.

words from the Theory of Legal Argumentation, we can say that applying the context of discovery on press statements supporting the unusual perspective of judges who calls us, is evidence of a social prejudice and discrimination against offenders as the objectified, and are denied their dignity as human beings, as opposed to the values \u200b\u200bderived from the principles of democratic rule of law that, for example, states in the FJ N ° 151 and following of the STC No. 0010-2002 - AI / TC, "In the democratic state of law, prison system is to re-education, rehabilitation and reintegration of the prisoner to society, "which, under our Constitution, Article 139, paragraph 22), is one of the principles of the prison system, which, in turn, is consistent with Article 10.3 of the International Covenant on Civil and Political Rights, which states that "the penitentiary system shall comprise treatment of essential aim of which shall be their reformation and social rehabilitation of prisoners."

That, as outlined in the FJ to No. 15 from No. 1593-2003-PHC/TC STC, the justification for imprisonment is ultimately protection of society against crime. This can only make sense, "if it takes a period of deprivation of freedom to achieve, if possible, that the offender is not only willing to respect the law and provide for their needs but also to be able to do so" .

In short this is not a personal attack, but regular exercise is the right to criticize the opinions of two judges in the exercise of their functions, and they express their mental paradigms, which unfortunately does not coincide with the values \u200b\u200band constitutional definitions of a modern democratic state of law, nor the jurisprudence of the Constitutional Court.

3 .- Conclusions

A. - Perhaps most important problem, is to say that regardless of compliance with the formal requirements established by law, the granting of prison benefits is subject to prior judicial assessment that the inmate can be reinstated for having rehabilitated, aimed at verification of compliance with legal requirements, and a business valuation to determine whether the treatment of prisoners has achieved its purpose, so that Article 55 of the Code of Penal Procedure states that the benefit "[...] parole will be granted in cases where the nature of the crime task, the agent's personality and behavior within the facility, to suggest that will not commit new crimes. "

B. - In that sense, what matters is the assessment and legal reasons, not the report of INPE, which is a circumstantial evidence or illustrative data on the process of rehabilitation and resocialization of the sentenced person;

C. - In any event, it set a genuine criminal policy, and consequently raise the scientific and technical level of criminal rehabilitation programs in Peru, recognizing the many nations and cultures within the territory. Jonny

Ricardo Moreno Ccancce
Member of the Advisory Committee on Civil Litigation and Real

Wednesday, August 25, 2010

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CONVICTED OF TC: FEE FOR SOCIAL BENEFITS DOES NOT CONSENT OF DISMISSAL AND IS NOT grounds for inadmissibility

SOCIAL BENEFITS FEE DOES NOT CONSENT OF DISMISSAL AND IS NOT THE UNDER grounds for inadmissibility

The Constitutional Tribunal (TC) issued a landmark decision declaring the petition for relief founded on File No. 03052-2009-PA/TC, setting a binding precedent that payment of compensation for length of service shall not be deemed as consent by the dismissal and the causes of inadmissibility of the process for defense. Has also been established that the payment of social benefits should be made independently and differential the payment of compensation for unfair dismissal or other items that have the same purpose, for this purpose the employer shall make such payments in separate accounts or through certificates of deposit in separate lawsuits.


The effects of these rules apply to the processes of the date of publication of this statement on the website are pending in both the Judiciary and the Constitutional Court and those who get in later. Also, there is this sentence report to the Ministry of Labour and Employment, in order to disseminate the decision and inform workers about the requirements to contest a dismissal harmful fundamental rights.

In accordance with Article VII of the Preliminary Title of the Code of the Constitution, and bearing in mind that different courts have been applying operators the jurisprudence set by the Collegiate previous case regarding the declaration of invalidity of the shelter when the employee was paid his compensation for length of service, this school from the date change of approach, which is compliance - mandatory - in order to generate predictability in legal operators.

Lima, August 23, 2010

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Tuesday, August 17, 2010

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Monday, August 16, 2010

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: CONSTITUTIONAL COURT DECLARES VOID EMPOWERS PRECAUTIONARY MEASURES AND START FROM CIVIL AND CRIMINAL JUDGES dealt treacherously

The sentence passed in Exp No. 00001-2010-CC/TC, the Constitutional Court has set a precedent binding, among others, the following rules: a.


Court rulings that have the non-application of Legislative Decree No. 843, or the Supreme Decrees Nos. 045-2000-MTC, 053-2000-MTC, 017-2005-MTC-MTC 042-2006 or Emergency Decrees Nos. 079-2000, 086-2000, 050-2008 and 052-2008, or in violation resolved, away or unobserved rules established as a precedent binding on the STC 05961-2009-PA/TC are null and void for being unconstitutional . B.

Judges who have issued judgments, providing for derogation of Legislative Decree No. 843, or the Supreme Decrees Nos. 045-2000-MTC, 053-2000-MTC-MTC 017-2005 and 042-2006 - MTC or the Emergency Decrees Nos. 079-2000, 086-2000, 050-2008 and 052-2008, or in violation resolved, unobserved away or established rules as binding precedent 05961-2009-PA/TC STC, must be prosecuted and sanctioned by the National Judicial Council and the Office of Judicial Control. C.

Entities of public administration are disabled to comply with any court order issued beginning June 18, 2010 that disapplying Legislative Decree No. 843, or the Supreme Decrees Nos. 045-2000-MTC, 053-2000 -MTC, 017-2005-MTC-MTC 042-2006 or the Emergency Decrees Nos. 079-2000, 086-2000, 050-2008 and 052-2008 or in contravention or failure to observe the rules established as a precedent binding on 05961-2009-PA/TC STC. D.

Judges who have issued judgments that provide for the disapplication of Legislative Decree No. 843, or the Supreme Decrees Nos. 045-2000-MTC, 053-2000-MTC, 017-2005-MTC-MTC 042-2006 or decrees Emergency Nos. 079-2000, 086-2000, 050-2008 and 052-2008, or in violation resolved, departing from established rules or unobserved as binding precedent 05961-2009-PA/TC STC, must be reported criminal by the prosecution for the crime of malfeasance.

Finally, the Constitutional Court has ruled that the precautionary measures to provide for the disapplication of Legislative Decree No. 843, or the Supreme Decrees Nos. 045-2000-MTC, 053-2000-MTC, 017-2005-MTC and 042-2006-MTC or Decrees Emergency Nos. 079-2000, 086-2000, 050-2008 and 052-2008, as well as being null and void for being unconstitutional, the defendant generated promote the declaration of civil liability as judges, lawyers and plaintiffs .

Lima, August 12, 2010

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Thursday, August 5, 2010

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Wednesday, August 4, 2010

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"The context of discovery involve in the study of a phenomenon, which the student chooses specific position in order to give an explanation to a particular theory. And on such a manifestation, it is not required an explanation justifying .. Atienza referred to on this kind of context is found or sustain a legal solution to a given conflict and applies to all disciplines ... "Edwin Figeroa
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Monday, July 26, 2010

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Article VII of TPL Constitutional Procedural Code:
Constitutional Court decision that acquire the force of res judicata are binding precedent as well as expressing the sentence, stating regulatory effect. When the Constitutional Court ruling away from the above, shall give the reasons in fact and law that support the decision and the reasons why depart from precedent.




Thursday, July 22, 2010

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Wednesday, January 13, 2010

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SOME PROBLEMS OF ACCESS TO JUSTICE IN OUR COUNTRY (1)

I. - INTRODUCTION

In the everyday common sense is unpleasant news, whether at the television, or radio writing. The recurring theme is the injustice (of nature: civil, criminal, labor, constitutional, etc.) Which the subject feels a number of Peruvians who do not find answers (appropriate to law) to their legal and social demands, and materialized view under the cloak of apathy and indifference ineffectiveness and lack of guardianship, by who is on duty to provide: The State.

Therefore, this paper will seek to identify those (algunos) obstáculos que con frecuencia suelen darse a través de los largos caminos de los pasillos judiciales de nuestro país.


II.- IDENTIFICACIÓN DE LOS PROBLEMAS

No hace falta realizar un trabajo estadístico o de recopilación de datos, para darnos cuenta que, para gran parte de nuestra sociedad -resulta casi una “presunción iure et de iure” (por darle una metáfora jurídica)-, la percepción de que la corrupción tanto pasiva como activa, es un lastre que genera una barrera a los justiciables de obtener una tutela jurisdiccional efectiva. Esta barrera socio And legal, is undoubtedly a wall with which we live whether we like it or not. And it is often not only the public official is the leading actor of the brutal scene, but, bad professionals and the famous lobby predominate in contributing to a vicious circle facing all moral ethical principle, which usually finishes "stoned slowly" to the disadvantaged (who does not have "sponsorship"), those without the resources to face the "most powerful" (corrupt and the corruption it generates) can not give a fight as equals in a process should be far removed from such unscrupulous mischief.


Another problem, with almost equal to the previous occurrence, is related to the economic and cultural development of our "colorful" population, many people living inside the country is unable to exercise their right action by having to litigate outside its territorial (usually on appeal), bringing economic situation detrimental to their flashpoints pockets, this together with that in many places far from the capital, namely in the provinces more isolated (often for lack of proper roads and lack of active state presence), the cultural level of its residents is below the citizen who lives in the capital (due to lack of dissemination of standards and ignorance of social reality), leading many times to solve their problems through self governance in its most degraded expression, frequent cases given in the department in Puno, where the alleged perpetrators of a crime, are stoned, lynched and burned up by the angry mob that seeks to do justice by own hand.


On the other hand, we can add another barrier to access to justice is often caused by the giving of legal rules that limit the effective judicial protection, eg it is the Section 15 Constitutional Procedural Code, which regulates a different procedure in the treatment of the injunction filed against an act issued by regional or municipal agency in relation to the process that gives precedence to other acts which alter the unprecedented aphorisms parties, evidence of a legal barrier against the ends of justice.


III .- SUGGESTIONS TO SOLVE THE BARRIERS IDENTIFIED

For at least reduce corruption that exist within the judiciary, the State shall adopt appropriate policies and punitive connotation, to prevent further proliferation corrupt in its broadest sense, to curb many acts of injustice given by judges biased to one party in litigation.


acts of corruption are a barrier to access to justice, since those can be used to harm a party to the issuance of decisions affecting the content of judicial protection effective. We have witnessed an exception, as in the early nineties, a certain group of people colluded to run an organized manner of criminal activities, monopolizing the top positions within the Peruvian judiciary, in order to "sell decisions to the highest bidder" and give a dye "legal" acts contrary to law.

Wanting to access to justice under the conditions described, is without a doubt, an impossibility, since the defendant beforehand that he wanted to touch the doors of the State for a decision according to law on a complaint raised only notice the dissatisfaction of interest because their desire for justice will become the chimera, if in the street, the other contender (parties to the litigation), belonged or was amical of one circle one Member Mafia-entrenched in the administration of justice.

There is a saying used in the legal justice delayed is not justice, that relates to the fact that our country is geographically uneven, and whose macro-level road infrastructure is poor, this means that the citizen who lives at 20 hours from the capital, hard to access to justice in equal opportunity that living in the capital or at least not so far from it.

contributes to the above mentioned, the fact that news that take place in the capital, can hardly be known in most remote places, this news about political, police, social, not to mention the legal content. A citizen apart from the parameters that govern life in society can hardly behave or develop in a medium from which ignores the principles or regulatory guidelines for a peaceful coexistence.

is the duty of state policies aimed at spreading between people outside the capital, the real event happening in the world and give them an education that aims to "undoubtedly" , knowing that the justice should be available to those whose purpose is to provide a solution to their conflicts,

Another measure to take is at the legislative level, with the enactment of the Civil Procedure Code was abundantly clear that the state has no privilege with respect to its counterpart, but there are rules that give prevalence to the state against the defendants, as is the case concerning the application of precautionary measures against acts of the regional governments and / or local. This type of rules, are to some extent the barriers to justice and to limit my right to effective judicial protection, in the same conditions as my counterpart, the State.


In this regard, the State must be more connected to the problems of citizens, shall issue rules that safeguard the rights of all citizens, ie the flag of strict respect for fundamental rights, and banish from our current system of sources coexistence of rules providing differential treatment when one of the parties to the dispute for the State, should survive only those that ensure equal treatment of individuals.



(1) Article written by Marco Antonio Torres Cumpa in the course of judicial protection and due process of the mastery of Civil Procedure, 2007.