La motivación judicial por remisión (per relationem) en el Derecho procesal peruano

• Autor: Leon Bustamante, Shirli Marisol
• Formato: tesis de maestría
• Fecha de Publicación: 2024
• Institución: Pontificia Universidad Católica del Perú
• Repositorio: PUCP-Tesis
• Lenguaje: español
• OAI Identifier: oai:tesis.pucp.edu.pe:20.500.12404/29939
• Enlace del recurso: http://hdl.handle.net/20.500.12404/29939
• Nivel de acceso: acceso abierto
• Materia: Derecho procesal--Legislación--Perú; Resolución (Derecho civil)--Legislación--Perú; Derecho procesal civil--Jurisprudencial--Perú; Metodología jurídica--Perú; Derecho--Interpretación--Perú; https://purl.org/pe-repo/ocde/ford#5.05.01

This research focuses on the analysis of one of the controversial assumptions of the duty to give reasons, the so-called “motivation by reference (per relationem)”, inserted in the Peruvian procedural law from Article 12 of the Organic Law of the Judiciary of 1991, which allowed judges in second instance to give reasons for their judgments by reproducing all or part of the grounds of first instance. The referred article was modified, but this assumption has also been recognized by the Peruvian Constitutional Court and the Supreme Court of Justice of the Republic. Some references indicate that it is from the legal practice of yesteryear derived from the terminology “by their confirmed fundamentals” that the synthetic and economic motivation by reference is reflected. However, per relationem motivation comes from comparative law, in continental Europe, the first arguments for the same were given, highlighting authors such as Taruffo and Aliste, who have made a comprehensive study of this assumption of motivation, highlighting, that by reference, the judges refer to a decision in order to support their decision as it is to the resolve an appeal. Thus, it is intended to provide an answer to various problems that have arisen in connection with this issue, mainly: Does per relationem motivation allow a decision to be duly motivated? And, if so, under what conditions or circumstances is this type of motivation justifiable? These questions will be answered on the basis of the application of criteria and limits to the aforementioned motivation. The line of research to which this research corresponds is “Constitutional Principles of the Process”, and the methodology to be applied is historical and properly legal dogmatic, by means of an analysis of the events of the motivation by reference and a study of certain judicial decisions. Therefore, the aim is to prove that it is possible to motivate by reference, as long as the duty to motivate is respected and certain limits of the same are applied.