University of Concepción Law Review

ABOUT SAVIGNY: INFLUENCES ON CHILEAN LAW THROUGH BELLO AND THE CONNECTION OF HIS METHODICAL PROPOSAL WITH DWORKIN'S HERMENEUTIC CONCEPT

Alejandro Vergara-Blanco — Mon, 30 Jun 2025 00:00:00 -0400

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.

DUTIES OF GUARANTEE, DUTIES OF CARE AND ARTIFICIAL INTELLIGENCE

Laura D'Amico — Mon, 30 Jun 2025 00:00:00 -0400

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 (rectius, 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.

ON THE ADAPTATION OF CRIMINAL LAW TO CONFLICTS ARISING FROM ARTIFICIAL INTELLIGENCE TECHNOLOGIES

Roberto Navarro-Dolmestch — Mon, 30 Jun 2025 00:00:00 -0400

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.

GIVING MEANING TO GENDER-BASED FEMICIDE

Alejandra Castillo Ara — Mon, 30 Jun 2025 00:00:00 -0400

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 contra legem 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).

THE IMMINENCE RULE FOR SELF-DEFENSE AND VIOLENCE AGAINST WOMEN

Bruno Rusca, Gustavo Beade — Mon, 30 Jun 2025 00:00:00 -0400

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.

THE INTRAPENITENTIARY SANCTIONING POWERS

Marcela Tapia-Silva — Mon, 30 Jun 2025 00:00:00 -0400

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.

THE ELDER ABUSE THROUGH ABANDONMENT IN CHILEAN CRIMINAL LEGISLATION

Carlos Cabezas Cabezas, Andrés Acuña Bustos — Mon, 30 Jun 2025 00:00:00 -0400

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.

RESTORATIVE JUSTICE BETWEEN ITALY AND CHILE

Cecilia Valbonesi — Mon, 30 Jun 2025 00:00:00 -0400

Through the Cartabia 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.

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.

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.

DUAL NATURE OF THE PURPOSE FOR MEDICAL TREATMENT IN THE OFFENSE OF CANNABIS SATIVA CULTIVATION

Manuel Esteban Rodríguez Vega — Mon, 30 Jun 2025 00:00:00 -0400

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.

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

Diva Serra Cruz — Mon, 30 Jun 2025 00:00:00 -0400

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.

LOGOS AND CRIMINAL LAW

Giuseppe Losappio — Mon, 30 Jun 2025 00:00:00 -0400

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 being and duty in the “classical” interconnection between word and reason.

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.

ABOUT THE CONCEPT OF DUTY AND ITS LINK WITH JUSTIFIED POLICE ACTION UNDER ARTICLE 10 N°10 OF THE CRIMINAL CODE

Angélica Torres Figueroa — Mon, 30 Jun 2025 00:00:00 -0400

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.

PUBLIC ORDER CONTROL AS A MANIFESTATION OF THE CONTEXTUAL ELEMENT OF CRIMES AGAINST HUMANITY

Francisco Bustos-Bustos, Juan Pablo Delgado Díaz — Mon, 30 Jun 2025 00:00:00 -0400

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.

IRRELEVANCE OF PASSIONATE ACTS IN ATTRIBUTION AND CRIMINAL LIABILITY?

Tatiana Vargas Pinto — Mon, 30 Jun 2025 00:00:00 -0400

The article analyzes the new exclusion of the extenuating circumstance from Article 11, N^o. 5 of the Penal Code, introduced by Law N^o. 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.

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

Antonia Martínez Vargas — Mon, 30 Jun 2025 00:00:00 -0400

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.

THE PROJECTED CRIME OF HARASSMENT IN THE CHILEAN CRIMINAL CODE

Christian Scheechler Corona — Mon, 30 Jun 2025 00:00:00 -0400

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.

CRIME OR NOT CRIME: THAT IS THE QUESTION

Emanuele Corn, Leopold Sanhueza-Tobosque — Mon, 30 Jun 2025 00:00:00 -0400

In the middle of 2024, the so-called Karin’s Act 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 chiaroscuro. 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.

THE CHILEAN CRIMINAL CODE DRAFT (2016). THE LEGACY OF PROFESSOR ALFREDO ETCHEBERRY

Carlos Künsemüller Loebenfelder — Mon, 30 Jun 2025 00:00:00 -0400

The writer of this article presents some comments about certain aspects of the project of Criminal Code, general part and special part.

Editorial

Mon, 30 Jun 2025 00:00:00 -0400

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.