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constitutional property » constitutional procedural (Expander búsqueda), constitutional protection (Expander búsqueda), constitutional procedure (Expander búsqueda)
para constitutional » peru constitutional (Expander búsqueda), spain constitutional (Expander búsqueda), a constitutional (Expander búsqueda)
constitutional property » constitutional procedural (Expander búsqueda), constitutional protection (Expander búsqueda), constitutional procedure (Expander búsqueda)
para constitutional » peru constitutional (Expander búsqueda), spain constitutional (Expander búsqueda), a constitutional (Expander búsqueda)
1
artículo
The liberal State emphasized that the right to property grants the attributes of using, enjoying, and disposing of an asset. However, beginning in 1911, Léon Duguit introduced the concept of the social function of property, asserting that the owner must not only seek personal satisfaction but also contribute to the well-being of the collective. Since its introduction, the social function of property has been incorporated into the constitutions of various states. However, the Peruvian constituent assembly of 1993 deliberately departed from this approach, and thus, Article 70 of our Constitution merely states that property shall be exercised in harmony with the common good—a provision that remains unchanged to this day. Consequently, the first objective of this research is to analyze the validity of the social function of property as a universal legal category within constitutional law....
2
artículo
The liberal State emphasized that the right to property grants the attributes of using, enjoying, and disposing of an asset. However, beginning in 1911, Léon Duguit introduced the concept of the social function of property, asserting that the owner must not only seek personal satisfaction but also contribute to the well-being of the collective. Since its introduction, the social function of property has been incorporated into the constitutions of various states. However, the Peruvian constituent assembly of 1993 deliberately departed from this approach, and thus, Article 70 of our Constitution merely states that property shall be exercised in harmony with the common good—a provision that remains unchanged to this day. Consequently, the first objective of this research is to analyze the validity of the social function of property as a universal legal category within constitutional law....
3
artículo
Publicado 2023
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In this article, the author proposes to expand the concept of property that is currently held under Constitutional law in Peru. Specifically, he proposes to protect the right of possession that communities hold over informal housing as part of the constitutional right to property. This right of possession, as the author states, consists of factual control over the asset and the recognition of this control by the community to which the individual belongs.The article confronts two apparently contradictory realities. On the one hand, almost 50% of the houses in Peru have a legal property title. On the other hand, the jurisprudence of the Constitutional Court has repeatedly indicated that the right of possession is not part of the constitutionally protected content of the right to property. In other words, almost half of&n...
4
artículo
Publicado 1981
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This article examines the right to land ownership within the framework of the agrarian regime under the new Peruvian Constitution, focusing on integral agrarian development and the issue of smallholdings. Within this context, it is noted that although the Agrarian Regime prioritizes integral development, without effective agrarian reform, this could favor the wealthiest and perpetuate inequalities, as seen in Peru. In this sense, the author addresses the constitutional protection of property and criticizes the confusion between "right" and "guarantee" in the constitutional text, highlighting the possibility of other forms of private property not prohibited by law. Additionally, emphasis is placed on the social function of land ownership, which entails its use in harmony with social interests, and imposes obligations on the owner beyond neighborhood relations or public interest, such as t...
5
artículo
Publicado 1985
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The paper analyzes the social market economy model enshrined in the 1979 Constitution, specifically in Article 115. In this context, the fundamental principles that define this economic system are studied, such as the subsidiarity of the State, which implies that the State should intervene only when necessary; freedom of private initiative, which allows individuals and companies to act without excessive restrictions; legal equality among competitors, guaranteeing an equitable scenario for all economic actors; and antitrust, which seeks to prevent the concentration of power in the hands of a few companies. The author then questions the ambiguity of the concept of “social market economy”, suggesting the need to adopt more flexible interpretations that allow the economic model to adapt to political and social changes. In turn, he emphasizes that the Peruvian Constitution, despite its ma...
6
artículo
Publicado 1981
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Starting from the precept of the 1979 Constitution regarding the legal regulation of the forms of celebration of marriage, the author provides an analysis of the obstacles to implement the constitutional norm in the Civil Code under preparation. In this context, he presents a historical review of marriage, highlighting its evolution and its regulation as a religious, civil or mixed institution. In this regard, he points out that in Peru the tension between civil and religious marriage is discussed, and proposes to recognize canonical marriage to align the law with reality and respect freedom of conscience and belief. Among the obstacles, it includes the differences in the requirements for valid and licit marriages, the lack of state control in parish registries and the need to recognize the legal value of marriages of other beliefs. Along these lines, servinakuy, a form of customary law ...
7
artículo
Publicado 2016
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The present article seeks to approach to the constitutional content of the right of indigenous peoples to their territories, especially the one developed by the Inter American Court of Human Rights, in view of the substantial pronouncements of this important court, its guarantor rights character, and it’s binding to the operators of the justice system of our country character.
8
artículo
Publicado 2019
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This article analyzes the judgment of the Constitutional Court in the matter of Docket No. 06920-2013-PA/TC Lima, in which, by a majority decision, the Court dismissed the appeal for amparo filed against the judgment that discussed the possibility of lifting the preventive measure of lis pendens dictated in a labor proceeding, on a property that was subsequently granted in ownership to a third person. In this regard, the article examines the unsuitable nature of the precautionary measure of lis pendens to guarantee decisions related to labor debts, as well as their lack of utility to prioritize the payment of credits. Furthermore, it questions the fact that the adjustment of the referred measure with respect to the protected interest was not respected; and that the precautionary measure of lis pendens was not lifted thereby seriously affecting the property rights of the party who obtaine...
9
artículo
Publicado 2019
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This article analyzes the judgment of the Constitutional Court in the matter of Docket No. 06920-2013-PA/TC Lima, in which, by a majority decision, the Court dismissed the appeal for amparo filed against the judgment that discussed the possibility of lifting the preventive measure of lis pendens dictated in a labor proceeding, on a property that was subsequently granted in ownership to a third person. In this regard, the article examines the unsuitable nature of the precautionary measure of lis pendens to guarantee decisions related to labor debts, as well as their lack of utility to prioritize the payment of credits. Furthermore, it questions the fact that the adjustment of the referred measure with respect to the protected interest was not respected; and that the precautionary measure of lis pendens was not lifted thereby seriously affecting the property rights of the party who obtaine...
10
artículo
Publicado 2023
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In this article, the author proposes to expand the concept of property that is currently held under Constitutional law in Peru. Specifically, he proposes to protect the right of possession that communities hold over informal housing as part of the constitutional right to property. This right of possession, as the author states, consists of factual control over the asset and the recognition of this control by the community to which the individual belongs.The article confronts two apparently contradictory realities. On the one hand, almost 50% of the houses in Peru have a legal property title. On the other hand, the jurisprudence of the Constitutional Court has repeatedly indicated that the right of possession is not part of the constitutionally protected content of the right to property. In other words, almost half of&n...
11
artículo
Publicado 2010
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The following paper develops a legal analysis of the verdict issued by the Constitutional Court which declared unfounded the resource of affront constitutional, the writ of Amparo, filed by the Pontifical Catholic University of Peru. The issue under discussion is about who should exercise the disposition of the property of the inheritance of Mr.Riva Agüero. On the one hand, the Administrative Assembly demands this right and on the other hand, the PUCP is protected in its right of university autonomy and property. Hence, the author emphasizes the need of using an appropriate methodology of foundation in the development of the verdict. This development considers the concept of property and constitutional heritage that is different and broader than the civilian concept. The following sections from this paper, explain how the foundations of the majority of the Constitutional Court, publishe...
12
artículo
Publicado 1978
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In the present article the evolution of property is exposed. Previously, the essence of property was constituted by the right of enjoyment, disposition and organization of social work. Now, the property covers various aspects such as the relationship between the shareholder and its action, the right of the owner of rental houses, the relationship between the company and its asset assets. For all these reasons, the author affirms that property has become an analogical concept that allows confronting diverse realities. First of all, the concept of Napoleonic property will be taken as the starting point of reference, to then compare and observe the changes made in the legal system. Then analyze what is the role of property as an instrument and manifestation in society. In other words, the functioning of the liberal society within which classical property is developed will be examined to det...
13
artículo
Publicado 1985
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The paper analyzes the Peruvian marriage regime, addressing its evolution and the legal principles that support it. In this sense, it highlights Article 5 of the Political Constitution of Peru of 1979, which recognizes various forms of marriage, such as civil and religious, but without establishing multiple legal regimes for each. That is, it is argued that the expression “forms” refers to the formalities of the act of celebration of marriage, so it cannot be understood as synonymous with classes or types of marriage. Furthermore, the author discusses the possibility that the Peruvian State may accept different marriage systems based on religious confessions, without this implying a plurality of marriage regimes. Finally, the work highlights the importance of maintaining the juridical unity of marriage and that the legal effects be uniformly regulated by the State.
14
artículo
In this inter view, Ferrajoli explains the positivization of constitutionalism and its relationship to the concept of morality and the role of contemporary democracies. He also discusses the issue of freedom of information relating to property rights, to economic initiative and freedom of expression. Finally, the author refers to the insufficiency of the proportionality test as a tool to resolve conflicts between fundamental rights with constitutional recognition.
15
artículo
Publicado 2022
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The persistence of subordinated and unequal gender relations affects women preventing them from fully enjoying their substantive right to equality. The gender- neutral language of laws can exacerbate challenges women face for their rights to be acknowledged. For that reason, gender mainstreaming constitutes an effective tool which enables adjudicators to better assess the facts and evidence of a gender-related case and thus construe laws in such a way as to adjust the structural imbalance between men and women. In recent years, courts have resorted more frequently to this tool to adjudicate cases. . However, it is still in an early face as regards the division of marital assets. For that purpose, this papers reviews, as an example, some Argentine judgments in which this approach helped restore the property rights of women.
16
artículo
Publicado 2022
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This article deals with the trading of other’s property in Peru as to whether it constitutes a case of invalidity or ineffectiveness of the contract, based on the different jurisprudence and doctrine that has been produced on the matter. This is based on a historical and comparative study of the contract of sale in Roman Law and in the various civil law legislations, including the figure of the sale of another’s property and the treatment of the registry rules. In the case of Peru, the influence of comparative law in the regulation of the sales contract is analyzed and how it has influenced the different interpretation of the sale of another’s property and the registry rules. Additionally, an analysis is made of the different cases of sale and purchase of another’s property, the corresponding remedies, the concordance with the registry rules; and finally, the corresponding conclu...
17
artículo
Taking into account decisions related to lands and territories of indigenous peoples, the article makes a socio-legal analysis of the situation of indigenous peoples, organized in rural and native communities. The first part discusses the lack of precision in national regulations on the concept of indigenous peoples in relation to communities, and then recounts various legal norms that constitute a setback in the protection of indigenous peoples’ rights. A succinct analysis is also made on collective titling policies, highlighting the tension with extractive activities such as mining and hydrocarbons. Finally, a specific case of the San Martin region is studied.
18
artículo
Publicado 2005
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The author claims that, from a general perspective, the economic analysis of infonnation and its relation with law presents a strong inefficiency. The author develops a study ofthe economic incentives in general and the manner how prívate property is constituted as the principal but is not the only one of the economic incentives for the production of information and innovation. In strict sense, the author explores the ontology of property, showing that it does not allow the inclusion of immaterial and intangible goods since the modern fundamentals of such institution come form the appropriation and the homesteading rule, categories incompatible with the ontology of information. Into such argumentation, the author studies the economic incentive theories for information and innovation, initiating with the study of the characters of information and the fallacies that always had surrounded ...
19
artículo
Publicado 2005
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El autor argumenta que, desde una perspectiva general, el análisis económico de la información y su relación con el derecho presenta una ineficiencia liminar. Para ello, desarrolla un estudio de los incentivos económicos en general y de la manera como la propiedad privada se constituye en el principal pero no el único de los incentivos económicos a la producción de información e innovación. En sentido estricto el autor hace una ontología de la propiedad, demostrando que ella no permite la inclusión de bienes inmateriales o intangibles en tanto que el fundamento moderno de tal institución proviene de la apropiación y la ocupación, categorías incompatibles con la naturaleza de la información. Dentro de tal argumentación, el autor se fundamenta en el espectro de los incentivos económicos para la producción de información e innovación, iniciando con un estudio de la na...
20
tesis de grado
Publicado 2025
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El presente Trabajo de Suficiencia Profesional tiene como propósito analizar hasta qué punto los reglamentos internos pueden restringir el uso y disfrute de un propietario dentro del régimen de propiedad horizontal, tomando como caso de estudio la sentencia del Tribunal Constitucional recaída en el Expediente N.º 03065-2018-PA/TC. Esta resolución aborda el conflicto entre el derecho a la salud y el libre desarrollo de la personalidad, derivado del consumo de tabaco dentro de un inmueble, lo que suscita un debate sobre los límites legítimos que pueden imponer los reglamentos internos frente al ejercicio del derecho de propiedad y el deber de convivencia armónica entre copropietarios. La investigación analiza los argumentos expuestos por las partes procesales, las decisiones emitidas en las distintas instancias y las posturas adoptadas por los magistrados del Tribunal Constitucio...
