https://revistas.udec.cl/index.php/revista_de_derecho/issue/feed University of Concepción Law Review 2025-07-01T19:25:29-04:00 Producción Editorial rderecho@udec.cl Open Journal Systems <p>The <strong><em>University of Concepción Law Review</em></strong> has been published since 1933 by the Faculty of Legal and Social Sciences of the University of Concepción. It is the oldest university legal journal currently circulating in Chile and one of the oldest of its kind in Latin America. </p> <p>Of semi-annual periodicity, its objective is to disseminate the analysis and critical discussion on issues of all branches of Law, especially Administrative, Civil, Constitutional, Commercial, Procedural, Labor, International, Criminal, Economic, Environmental, Tax Law, Sciences of Law, as well as the respective historical sources of these disciplines. It is aimed to the national and international academic community, students, teachers, researchers and professionals in the field of law and related disciplines.</p> https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20265 DUTIES OF GUARANTEE, DUTIES OF CARE AND ARTIFICIAL INTELLIGENCE 2025-05-29T17:03:15-04:00 Laura D'Amico laura.damico@unime.it <p style="font-weight: 400;">This paper aims to reflect on the role played by artificial intelligence in our society nowadays and, in particular, on the licit offence potential connected to its use. Reflecting on the intersection between the themes of negligence and omission (<em>rectius</em>, duties of diligence and duties of guarantee), the aim is to investigate the possible configuration of a position of guarantee for the operator of an artificial intelligence system. This issue makes it possible to face, with a modern approach, some classic problems that the incrimination of the commission by omission crime has already posed over time, and to reflect on the so-called omissive moment of negligence<em>.</em></p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Laura D'Amico https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20325 ON THE ADAPTATION OF CRIMINAL LAW TO CONFLICTS ARISING FROM ARTIFICIAL INTELLIGENCE TECHNOLOGIES 2025-06-10T11:58:44-04:00 Roberto Navarro-Dolmestch rnavarro.dolmestch@gmail.com <div><span lang="EN-US">An examination of the treatment of criminal-law conflicts involving intelligent machines, i.e. devices equipped with artificial intelligence technology (AIT), is presented in this paper. Rejecting the view held by part of the academic literature concerning the inadequacy of criminal law structures to manage such conflicts, this article argues that all (or at least a substantial part of) difficulties related to attribution can be resolved by recognizing intelligent machines as occupying an intermediate category (‘actants’) between the traditional notions of ‘object’ and ‘subject’ upon which modern criminal law is founded. The article briefly outlines structures that would be influenced by such actants.</span></div> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Roberto Navarro-Dolmestch https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20312 GIVING MEANING TO GENDER-BASED FEMICIDE 2025-05-29T15:23:10-04:00 Alejandra Castillo Ara alecastilloara@gmail.com <p>This article addresses the most problematic aspects of gender-based femicide, understood as the only form of femicide whose motivation lies in contempt for the condition of being a woman, in contrast to intimate femicide as defined in Article 390 bis of the Criminal Code. It offers a conceptual clarification of categories such as sex, gender, and gender-based motive, from a systematic and dogmatic perspective, avoiding <em>contra legem</em> or identity-driven interpretations, despite the potential political cost. The article is structured in four sections: an introduction to the issue (I); a critical analysis of the imprecise use of these concepts in the criminal field (II); a dogmatic interpretation of Article 390 ter and its subsections (III); and the conclusions (IV).</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Alejandra Castillo Ara https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20769 THE IMMINENCE RULE FOR SELF-DEFENSE AND VIOLENCE AGAINST WOMEN 2025-05-22T10:27:50-04:00 Bruno Rusca bruno.rusca@uach.cl Gustavo Beade gustavo.beade@uach.cl <p>The paper addresses the issue of whether, in the context of gender violence, a battered woman who kills her abuser when he is completely off guard can be justified under the rules of self-defense. In favor of the admissibility of self-defense in such situations, it has been argued that either the traditional requirement of imminence of the aggression must be dispensed with, or the aggression of the abuser complies with this requirement because it is of a permanent or incessant nature. After rejecting the first proposal, both for its theoretical foundations and its practical consequences, it is argued in favor of considering the violence exercised by the batterer as a kind of radical domination, which satisfies the requirement of actuality or imminence. &nbsp;</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Bruno Rusca, Gustavo Beade https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20317 THE INTRAPENITENTIARY SANCTIONING POWERS 2025-05-30T15:52:31-04:00 Marcela Tapia-Silva marcela.tapia@uach.cl <p>In the intra-penitentiary context, the sanctioning power of the State administration is relatively autonomous from the execution of the custodial sentence. This means that: firstly, it does not form part of the sphere of punishment understood as mere deprivation of ambulatory liberty, but rather forms a sector of administrative sanctioning law, the main peculiarity of which is its express subjection to the standards of the constitutional penal order; secondly, it is evidence of the existence of a penitentiary ius puniendi comprising both sanctioning manifestations: Secondly, it shows the existence of a penitentiary ius puniendi comprising both penal and administrative sanctions, which, in the case of solitary confinement, are combined and determine the greatest degree of infringement of a person's fundamental rights; and thirdly, it shows that the criterion of guarantees as a parameter for differentiating between criminal and administrative sanctions is not suitable for the case of persons deprived of their liberty.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Marcela Tapia Silva https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20323 THE ELDER ABUSE THROUGH ABANDONMENT IN CHILEAN CRIMINAL LEGISLATION 2025-05-20T12:14:50-04:00 Carlos Cabezas Cabezas carlos.cabezas@uantof.cl Andrés Acuña Bustos andres.acuna@uantof.cl <p>The abandonment of the elderly has been considered by international conventions and domestic legislation as a serious attack on the rights of this age group, which is constantly growing in Chile and the world. This paper seeks to review how abandonment of the elderly is sanctioned in the Chilean legal system, with special emphasis on criminal law in order to determine whether the criminal protection against these behaviors is sufficient or has deficiencies.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Carlos Cabezas Cabezas, Andrés Acuña Bustos https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20320 RESTORATIVE JUSTICE BETWEEN ITALY AND CHILE 2025-05-19T16:27:25-04:00 Cecilia Valbonesi cecilia.valbonesi@unitelmasapienza.it <p style="font-weight: 400;">Through the <em>Cartabia</em> Reform, a structured system of restorative justice has recently been introduced in Italy. Therefore, complementary forms of conflict management derived from the commission of the crime are now allowed, designing a path guided by professionals, connected or not to the holding of the criminal trial, which allows to repair the existential tear through the voluntary meeting between the alleged perpetrator and the victim of the crime.</p> <p style="font-weight: 400;">On this occasion the author compares the Italian and Chilean experience with particular reference to the trial of the Tsunami case, after the earthquake of February 27, 2010.</p> <p style="font-weight: 400;">The potentialities not yet expressed by this complementary form of administration of justice are thus explored, with particular reference to two specific areas of negligence: a) the consequences of natural disasters for the life and health of the population; b) the protection of the environment.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Cecilia Valbonesi https://revistas.udec.cl/index.php/revista_de_derecho/article/view/19729 DUAL NATURE OF THE PURPOSE FOR MEDICAL TREATMENT IN THE OFFENSE OF CANNABIS SATIVA CULTIVATION 2025-06-04T15:12:36-04:00 Manuel Esteban Rodríguez Vega merodrig@uc.cl <p>This article examines the justification defense introduced by Law N° 21.575 in relation to the criminal offense of unlawful cultivation of Cannabis sativa when intended for therapeutic purposes. It provides an in-depth analysis of the dual nature of the provision, which simultaneously establishes a substantive justification and a legal presumption aimed at facilitating evidentiary assessment in judicial proceedings. The text further identifies interpretive challenges, warning against both overly permissive applications that may lead to de facto decriminalization, and excessively restrictive readings that could render the therapeutic exception ineffective. The article concludes by underscoring the necessity of a systematic interpretation consistent with foundational principles of criminal law—one that appropriately balances legal certainty with the right to health, while preserving clear and well-defined boundaries for therapeutic self-cultivation.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Manuel Esteban Rodríguez Vega https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20316 EXPLORING THE LIMITS BETWEEN CRIMINAL LAW AND ADMINISTRATIVE SANCTIONING LAW BASED ON THE REFORM TO ARTICLE 20 AND THE INCORPORATION OF ARTICLE 78 BIS INTO THE PENAL CODE 2025-06-12T15:28:57-04:00 Diva Serra Cruz divaserra@udec.cl <p>The purpose of this paper is to determine that the modification incorporated to article 20 of the Criminal Code, added to the incorporation of the new article 78 bis to the same legal body, which expressly allows the duplication of sanctions (criminal and administrative), provide new arguments in favor of a substantive thesis of differentiation between criminal law and administrative sanctioning law. Such a substantive thesis of differentiation would be linked not only to the function that each of the disciplines fulfills but would also allow defending -from there- another difference linked to the availability of the examination of material unlawfulness in criminal law but not in administrative law. Finally, the work develops arguments that seek to give meaning to the rule of payment of the fine and disqualifications, contained in the second and third paragraphs of the new article 78 bis of the Criminal Code.&nbsp;</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Diva Francesca Serra Cruz https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20290 LOGOS AND CRIMINAL LAW 2025-06-14T19:55:15-04:00 Giuseppe Losappio giuseppe.losappio@uniba.it <p>The essay moves from the close correlation between philosophy and criminal law, being the word (the logos) the real starting point. Moving from the word to the discourse, the Author considers how the ten propositions of guarantee, in which Luigi Ferrajoli's “Law and Reason” is articulated, give life to a descriptive and prescriptive system, which links <em>being</em> and <em>duty</em> in the “classical” interconnection between <em>word</em> and <em>reason</em>.</p> <p>The well-known theories of the Italian philosopher of law is related throughout the article with Han's statements regarding the transformations of contemporaneity that he reads from concepts such as “psychopolitics” and “infocracy”. Thus, the last part of the paper begins by considering that a reading of criminal law that claims to be exclusively rational is in fact irrational and ends by suggesting practical guidelines for the defense of the deepest guarantees of the legal system.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Giuseppe Losappio https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20151 ABOUT THE CONCEPT OF DUTY AND ITS LINK WITH JUSTIFIED POLICE ACTION UNDER ARTICLE 10 N°10 OF THE CRIMINAL CODE 2025-06-23T21:31:58-04:00 Angélica Torres Figueroa angelica.torres@mail.udp.cl <p>This article argues that Article 10 N° 10 of the Penal Code contemplates a justification that contains two differentiable hypotheses, derived, in turn, from two matrix ideas: duty and right. On the other hand, and in relation to police actions, it is proposed to distinguish, within the concept of “duty”, between two notions: “broad duty” and “restricted duty”. The distinction will have practical relevance when it comes to applying article 10 No. 10 of the Penal Code.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Angélica Torres Figueroa https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20326 PUBLIC ORDER CONTROL AS A MANIFESTATION OF THE CONTEXTUAL ELEMENT OF CRIMES AGAINST HUMANITY 2025-05-22T10:12:20-04:00 Francisco Bustos-Bustos fbustos@derecho.uchile.cl Juan Pablo Delgado Díaz jpkavafis@gmail.com <p>This paper reviews the main judgments of the Supreme Court of Chile in which some form of control of public order has been interpreted as an element of a widespread or systematic attack against the civilian population, in proceedings for crimes against humanity perpetrated by agents of the military dictatorship between 1973 and 1990. To begin, we will show that in the rulings under analysis, the courts of justice, when reviewing borderline cases regarding the concurrence of the generality requirement, required by international custom and the classification of crimes against humanity, have resorted to what they called control of public order to give concrete content to what should be understood as a widespread attack against the civilian population.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Francisco Bustos Bustos, Juan Pablo Delgado Díaz https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20460 IRRELEVANCE OF PASSIONATE ACTS IN ATTRIBUTION AND CRIMINAL LIABILITY? 2025-05-19T16:09:25-04:00 Tatiana Vargas Pinto tatianavp@uandes.cl <p>The article analyzes the new exclusion of the extenuating circumstance from Article 11, N<sup>o</sup>. 5 of the Penal Code, introduced by Law N<sup>o</sup>. 21,675 regarding gender-based violence against women. It argues that this elimination affects not only femicides but also any crime related to this type of violence, which creates several problems. It questions the effectiveness of this measure in achieving the cultural change sought by the legislator. It also invites reflection on the elimination of emotional considerations, the complexity of human behavior, and its attribution. Ultimately, the article advocates for a more in-depth review of how legislation can address gender-based violence without dismissing the influence of emotions on human behavior.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Tatiana Vargas Pinto https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20319 A PROPOSAL FOR THE CONCEPTUALIZATION OF COMPANIES THAT PROVIDE A PUBLIC UTILITY SERVICE UNDER LAW NO. 20.393 IN LIGHT OF THE PRINCIPLE OF PROPORTIONALITY 2025-05-20T15:30:41-04:00 Antonia Martínez Vargas antonia.martinez@derecho.uchile.cl <p>Law 21.595, published on August 17, 2023, introduced numerous amendments to the Chilean model for attributing criminal liability to legal entities. Undoubtedly, the most substantial modification incorporated by this legal instrument to Law 20.393 is the elimination of the reference to the interest or benefit of the legal person as a requisite for the establishment of its criminal liability. Consequently, the scope of applicability of criminal sanctions against companies has been considerably broadened. In this scenario, it becomes relevant to clearly determine the cases in which legal entities are exempt from the enforcement of penalties, particularly the most severe sanction within the legal system, the extinction of the legal entity, as in the case of “companies that provide a public utility service”, a concept whose boundaries this paper seeks to outline.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Antonia Martínez Vargas https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20322 THE PROJECTED CRIME OF HARASSMENT IN THE CHILEAN CRIMINAL CODE 2025-06-03T16:35:38-04:00 Christian Scheechler Corona cscheechler@gmail.com <p style="font-weight: 400;">This paper addresses a crime contained in the Chilean Criminal Code proyect, which describes one of the most common forms of persecute today: harassment, also known in doctrine and comparative law as predatory harassment or stalking. First, it will review how Chilean legislation, in recent years, has addressed the phenomenon of harassment in different areas of law, such as labour and criminal law. It will then analyze whether the inclusion of this crime in Chilean substantive law is pertinent and justified, in light of some foreign experiences, such as the Spanish one. Finally, it will review how harassment is described in the draft, breaking down and analyzing its objective and subjective aspects.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Christian Scheechler Corona https://revistas.udec.cl/index.php/revista_de_derecho/article/view/20328 CRIME OR NOT CRIME: THAT IS THE QUESTION 2025-06-28T22:38:07-04:00 Emanuele Corn emanuele.corn@uantof.cl Leopold Sanhueza-Tobosque leopoldosanhueza@gmail.com <p style="font-weight: 400;">In the middle of 2024, the so-called <em>Karin’s Act</em> came into force, regarding the prevention, investigation and punishment of labor, sexual harassment or violence in the workplace. Without ignoring the merits and the great improvement that this act will mean for Chilean society, the discipline presents important <em>chiaroscuro</em>. <span style="font-weight: 400;">The article investigates, in particular, how Karin's Act differentiates between a formal penal framework, based on the chosen sanction, and the substantive dimension: it is a act formally external to the criminal sphere that, nevertheless, imposes harsher sanctions for lesser crimes, especially considering the speed of the trial and the fact that there is no way to suspend the penalty.</span></p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Emanuele Corn, Leopoldo Sanhueza Tobosque https://revistas.udec.cl/index.php/revista_de_derecho/article/view/19691 THE CHILEAN CRIMINAL CODE DRAFT (2016). THE LEGACY OF PROFESSOR ALFREDO ETCHEBERRY 2025-06-18T15:35:02-04:00 Carlos Künsemüller Loebenfelder ckunsemullerl@gmail.com <p>The writer of this article presents some comments about certain aspects of the project of Criminal Code, general part and special part.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Carlos Künsemüller Loebenfelder https://revistas.udec.cl/index.php/revista_de_derecho/article/view/21740 Editorial 2025-07-01T17:40:30-04:00 Veronica Delgado-Schneider vedelgado@udec.cl Diva Serra-Cruz divaserra@udec.cl Gamalier Caniuqueo-Burgos gcaniuqueo@udec.cl Valentina Llanos-Munoz valenmunoz2017@udec.cl <p>Editorial of Issue 257 of the University of Concepción Law Review, a Thematic Issue with special reference to the 20th National Conference on Criminal Law and Criminal Sciences in 2024, and presentation of the papers published in this issue by the Journal's Editorial Team.</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 https://revistas.udec.cl/index.php/revista_de_derecho/article/view/21604 ABOUT SAVIGNY: INFLUENCES ON CHILEAN LAW THROUGH BELLO AND THE CONNECTION OF HIS METHODICAL PROPOSAL WITH DWORKIN'S HERMENEUTIC CONCEPT 2025-06-12T10:12:41-04:00 Alejandro Vergara-Blanco alvergar@uc.cl <p>Based on Savigny's work, this paper offers two analyses of the circulation of legal ideas. First, it shows the influence that Savigny's work, through Andrés Bello, effectively had on nineteenth-century Chilean law, as well as two false influences and another frustrated one. It then connects Savigny's methodical work with Ronald Dworkin's hermeneutical proposal, developed at the end of the 20th century.&nbsp;</p> 2025-06-30T00:00:00-04:00 Copyright (c) 2025 Alejandro Vergara Blanco