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Ius Humani. Law Journal

iushumani
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Published by Universidad de Los Hemisferios

ISSN : 1390440X EISSN : 13907794 DOI : -

Core Subject : Humanities, Art, Social,

Arts Humanities Law, Crime, Criminology & Criminal Justice

Ius Humani Law Journal is a platform (iushumani.org) open to researchers around the world. It contains articles in all languages, where writers publish original studies on persons rights (natural, human or constitutional) and about the effective procedures for the protection of rights. The studies are viewed both form the philosophical perspective and the perspective of the fundamental juridical principles. Ius Humaniâ€™s purpose is the diffusion of knowledge, and the promotion of debate on different juridical perspectives.

Arjuna Subject : -

Articles 15 Documents

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Search results for , issue "Vol 5 (2016)" : 15 Documents clear

El garantismo y el punitivismo en el Código Orgánico Integral Penal Sebastián Cornejo Aguiar
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

The objective of this article is to determine the need for the existence of a punitive and a guarantor party within the Integrated Criminal Code, starting from the study of the doctrinal updating in criminal matters within the Ecuadorian legal system considering that since Ecuador is a constitutional State Of rights and justice, inspires us to construct mechanisms that have as basis and aim the protection of the freedoms of the individual, against the various forms of the arbitrary exercise of punitive power of the State, where the guarantees and principles established in the Code Organic Integral Criminal, should be considered as punitive power containment filters that prevent that power from overflowing and destroying everything in its path. Then the meaning of the guarantee and punitivity is analyzed. Finally, we consider the relationship between guarantee and punitivity, concluding that the guaranty is a current that provides substantial ideas to transform the judicial process thus preventing the arbitrariness of punitive power.

Justiciabilidad de los derechos sociales Gabriel Galán Melo
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

Since 2000, social rights have gained prominence in our countries (Andean countries), inside the Doctrine, and in the worldwide and regional organizations, for the protection of human rights. These have been raised as apparent leveling mechanisms between the real freedom of each of the individuals and legal freedom, that the constitutional and legal framework recognizes them. In Latin America, due to considerable levels of inequality and poverty, an effective model of comprehensive and reasonable social rights, that can really ensure the factual freedom of all citizens alike are looking for. So, the imposition of a single model that reaches theoretically equate factual or real freedom of all citizens, but one that also ensure, its justiciability despite the implications that would result in the budgetary policy of the state is not enough. Thus, it seems relevant the creation of a Latin American Doctrine on social rights, taking into consideration that a latent danger that lurks behind the discourse of such rights is the social demobilization caused by the Latin neopopulism and should propose, in this case, the construction of a national system for optimal protection with additional security systems, regionally and internationally protection and its appropriation by the population in the political and legal practice. It means, an integrated multi-level social rights protection system.

La Acción de Protección como mecanismo de garantía de los derechos: configuración institucional, práctica y resultados José Luis Castro Montero; Luis Santiago Llanos Escobar; Pablo Sebastián Valdivieso Kastner; Wladimir García Vinueza
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

Since 2008, the Ecuadorian Constitution introduced several changes in the institutional layout of constitutional mechanisms intended to protect fundamental rights. The present work analyzes protective action (PA) —acción de protección—, a constitutional guarantee which was created to safeguard and protect constitutional rights against acts or omissions of non-judicial public authorities or non-public actors. In absence of empirical evidence about how the PA works, this study evaluates its performance through a quantitative analysis of an original database. Thus, this study explores the operation of the PA in Quito, covering first instance and appellate court decisions, issued between November 2008 and June 2014. Then, patterns in the resolution of this constitutional guarantee are described. The results show a limited performance of the PA, as it is insufficient to guarantee and repair fundamental rights, mainly when the state acts as the defendant.

Revisitando la idea / el ideal de la Sociedad Civil Global a la luz de los Derechos Humanos Andrés López Rivera
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

In the past few decades, the proliferation of a “third sector” of nongovernmental and non-profit organizations that operate across borders has prompted a reformulation of the concept of civil society. A number of contemporary studies contend that the previously state-centric civil society is becoming international, transnational or global. Whether the emergence of an autonomous realm of world citizens is merely a projection of a cosmopolitan ideal or a real phenomenon is a contentious issue. The present article problematizes the idea of a global civil society by analysing its descriptive purchase and its normative implications. Drawing on a constructivist approach, the paper proposes the term “ideational infrastructure” to analyse its discursive and interpretive underpinnings. The analysis finds that global civil society is a reification rooted in human rights discourse as a contemporary ideal and a moral aspiration.

El neoconstitucionalismo. Una definición y una taxonomía latinoamericana Vicente Solano Paucay
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

In order to define some of the main elements of neo-constitutionalists theses, we must ask ourselves some fundamental questions that can help us to distinguish the relationship between this “tendency” and traditional legal theories. These questions will allow us to figure out the different notions denominated neo-constitutionalists in order of accomplishing the objective of identify and classify them. The first question would be related with the thesis of the connection between law and morality; the second question would have to review the thesis of the necessity of morality for the identification and validity of law; the third question has to explore the thesis where principles or constitutional values refer to morality and its implicative thesis of how to apply the principles and rules. In this way, we can find into the neo-constitutionalists theses some convergences or divergences that may lead us to better clarify plausible criteria for the identification of transcendental elements. These elements denote if “neo-constitutionalism” is a new “theory” of the overriding law of dichotomy between non-positivism and legal positivism.

Mediación y participación ciudadana en México María Guadalupe Márquez Algara; José Carlos De Villa Cortés
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

This paper describes the origin and development of the mediation in Mexico, a procedure that is currently gaining great force in that country. However, its beginning dating from 1997 had a certain problematic since the mediation did not begin as a national movement, because was local and only in a judicial forum. However, in 2008 it became a federal obligation that all the states of the country offer alternative justice mechanisms, including the mediation in their respective judicial powers, although each state developed its own way, because their respective laws are local, so their results at the individual level are very diverse. Also, in recent years, it has also developed the school, community and indigenous mediation in some states, which promote citizen participation, which is one of the major factors for the development of mediation in such scenarios. The article narrates in a chronological way the described evolution, using, besides doctrine, statistics and official information. Also shows, that though the mediation in Mexico is gathering strength, it is not doing it in a homogeneous way in the whole country because the state differences sometimes are very big.

El rol del número de cédula en el derecho a la identidad Javier Ribadeneira Sarmiento
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

Among the rights enshrined in our Constitution is the right to personal identity, which is also considered a human right and inalienable of every person since birth. Under the guideline of this right, the article presents a comparative analysis between the repealed Civil Registration, Identification and Registration Law (LRegCiv) and the current Organic Law on Identity and Civil Data Management (LOGIDC), and to deepen the normative changes. Despite the novelty of the current legal framework, this article identifies and lists several errors of conception or omission that the new law contains. Also the article highlighted several concepts that lend themselves to confusion. In addition, with the support of a case study, the mistakes that the administration committed and could still commit are exemplified. It is concluded that the new law is not sufficient to guarantee in a reliable way the right to identity due, mainly, to its gaps and lack of definitions. The author presents and explains the main new legal developments in civil registration. The article was written using mainly legal texts, doctrine, papers of recognized writers and for didactic purposes it analyzes a practical case. It is structured as follows: (i) introduction, (ii) the right to identity, (iii) normative developments, (iv) case study, (v) conclusions and recommendations.

Neoconstitucionalismo, nuevo constitucionalismo latinoamericano y procesos constituyentes en la región andina Jorge Benavides Ordóñez
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

The purpose of the paper is to account for the importance attributed by the constitutions inspired by the so-called new Latin American constitutionalism to popular participation in matters of constitutional changes. To that extent, the analysis will be carried out in a comparative manner. To this end, in the first place, we differentiate between neoconstitutionalism and new Latin American constitutionalism. Later, we describe the influence of the new Latin American constitutionalism in the processes of creation and reform of the Constitutions of Colombia, Venezuela, Ecuador and Bolivia. Next Chapter is dedicated to Ecuador, one realizes the present inconsistency in terms of participation that exists between the model contemplated in the constitutional text and political and legal practice. Finally, there are five conclusions that shows the future way for a true participation in regional neoconstituionalism and some contradictions between dogmatic and organic part of Ecuadorian Constitution.

L’indisponibilità del diritto all’integrità fisica della persona umana in ambito sportivo e i limiti al rischio consentito Maria Cimmino
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

Nowadays, people engage in fun and exciting activities, which are risky, knowing that they might be injured, or incur some type of property damage. Sports and physical activities could also be dangerous for people’s health and safety, because it often has inherent risks that cannot be eliminated without destroying the very essence of the activity. According to the doctrine of the assumption of risk, a participant in a sporting activity accepts its normal and reasonable risks and ordinary blows and collisions incidental that happen during the match, but the athlete does not accept the abnormal incidents. Sport is also one of the necessities of communities, because it can improve common and individual wellness and encourage the diffusion of the value in the modern society. How and when should the assumption of risk be applied in the sport? This paper would like to analyze the relationship between sport right and personal injury; the aim is to verify how the Italian legal system ensure the promotion of the sport by protecting the safety and the physical integrity of the human person, as fundamental right, in the light of the doctrine of the assumed risk.

Registro civil y secularización. Comparación entre Ecuador y Francia Joël Hautebert
Ius Humani. Jornal do direito Vol 5 (2016)
Publisher : Universidad Hemisferios

The study of the creation of the Registry Office of people and of its linkages with the Church’s sacraments gets us right to the heart of legal, political and religious paramount issues. The comparison of recent French and Ecuadorian histories, two historically Catholic countries but from different continents, offers a relevant outlook for analyzing such general problems. The many comments of the bishop and lawyer Juan Larrea Holguin on the theme of relationships between the sacrament of marriage (and of Baptism) and civil obligations (civil status) can be largely applied to France. The accurate understanding of institutions still requires to refer to their history. The origin of Civil Registration unveils the purpose of secular states according to a logic of secularization, that is a logic of fight against the Church. Thereafter, we observe the maintenance of rules developed for Civil Registration but in new national and international political contexts, that changed Church’s diplomatic choices. The directions taken by these two countries splited up very recently. This study on Civil Registration gives us a picture of the issue related to Church freedom in these contemporary times which raise questions again about the links of Church with secular law.

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