My Daughter Has Yellow/green Discharge

A Consumer Code

few days ago the Code Project Protection and Consumer Protection is about to be voted to send it to President Garcia to enact it. For those who have good memories, in the presidential address last year, Garcia had already announced, it may not be aware of what happens to consumers today, but looking a little more than popular approval. It is therefore very likely that this project will not find major obstacles in the executive, if it comes up there, and that by 28 and has appeared in El Peruano.

From a quick reading of the opinion of the Project and some conversations with some friends knowledgeable on the subject (as this and this ), I doubt that this new law will change the relations of consumption in our country. Although I think the consumer should be adequately supervised and protected material and procedurally specific views you may have about the book when I read, in turn, what they and other specialists write.

In fact, the national law has already had occasion to discuss the Draft Consumer Code, drafted by a committee chaired by Dr. Walter Gutierrez, "which was the germ of what few days could be law. In fact, there is a special Legal News No. 186 of May that has important opinions, which we refer the reader.

To tell the truth, I have always believed that the consumer will be effectively protected by the jurisdiction and not by the Indecopi, who over the years, since its creation, it becomes a body sui generis administrative given their enormous powers in all matters on which you decide (especially consumer). I must confess that I am quite skeptical that this entity has powers identical to those jurisdictions (Indecopi resolves contracts compensation and now provides, among other things, invalidate contractual terms), as between a state function and the other must necessarily be a difference, but anyone who thinks that this juncture is justified by the evils of the Judiciary makes clear the fact of our country's state courts: that there are many legal situations, for now, are not and can be effectively supervised by problems caused by the system. That no remedy for what it is, but realistically, how long until the state courts to provide adequate and timely protection to the consumer?

This overwhelming frustration, however, does not prevent me to critically analyze the procedural protection that the Code and Consumer Protection presents, giving, of course, the post Indecopi. Many things caught my attention, but there are some very specific: the regulation of collective process (art. 128), the possibility that Indecopi is part of a collective jurisdictional consumer protection (art. 130) and the establishment of an arbitration system to resolve consumer disputes "in a simple, free, quick and binding" (Article 137). Soon I will be able Broadening the scope and some thoughts about this new regulation.

For now, the opinion can be read here.

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Applying the principle of cooperation in the civil process far

partnership principle

At a brief rescensión on a book on this blog , I've had the opportunity to discuss the formalism-evaluative and one of his proposals: encourage collaboration between the judge and the parties. And the best proof that this postulate is not only theory is that I recently came across a case where the application of this principle is crucial to obtain the best possible solution.

controversial matter concerns the opportunity for comment by the parties to the expert report. The analysis of the LIMA Appeal No. 5340-2008, issued by the Transitional Civil Division of our Supreme Court. Here the text of the decision:

Open publication - Free publishing - More expertise

can summarize the case that led to this ruling in a nutshell: According to the Transitional Civil Division, the judge dismissed the aforementioned observation, saying that the expertise is intended ordered that the sentencing judge at the time of count with stronger evidence, therefore found not subject to any observations. Thus, it should ask the following questions: Are the submissions of the parties must be addressed before a decision? If so, should it be called a special hearing or complementary?

First, it is extremely wrong that the trial judge thinks that the expertise used only for the judge and, therefore, that the observations that the parties could do not deserve to be addressed. Nothing wrong, and not just because the rule contained in Article 266 of the CPC gives relevance to the remarks of the parties, but also because, from a cooperative vision that seeks to foster participation and dialogue in the process, the conduct of the court (which has the duty to promote such cooperation) is quite authoritarian. It is undeniable that the parties are entitled to comment and, of course, that these are addressed by the judge and even answered by the expert, "but it is not a mere whim of the rule, on the contrary, what issue is that the judge can deal better (in this case, he draws from the expertise most appropriate probative value), thanks to the contributions of the parties. And the consequences of failure to observe or deny the participation of stakeholders in shaping the decision as in this case, decanted in violation of the right to effective judicial protection. Therefore, answering the first question, the comments from the parties themselves must be adequately addressed.

On the other hand, as the legislative design is about, I think the second question involves greater complexity. In this regard, it is verified that the observations can be made at the evidentiary hearing, where experts present their conclusions. However, a first hypothesis is that the observations are addressed there, so there would be no problem, unless the judge, given the complexity of the case, decide that the expertise is based on a special hearing in which the parties may submit their concerns (this rule clearly stipulates in Article 265 of CPC). On the other hand, a second hypothesis is that the expertise is presented in the hearing of evidence and, subsequently, within the limits allowed by the procedural rule that the parties to develop or encourage their observations on that. In this case, what should the judge? So just to have this "the pleadings when ruling? I think this is not enough. Although section 266 does not expressly say, the judge shall call a special hearing as the first scenario, so that the parts with better observations raised after three days, questioning the expertise. Only in this way, in this case, genuine participation is encouraged and, subsequently, a fairer decision.

Thus, we conclude that the Transitional Civil Chamber was right in finding that there was a violation of due process of the individuals who submitted their observations because, in fact, the absence of a special hearing to discuss what relative to the skill-and even more so the excuse given by the judge of first degree, affects the right of defense. But what the Board did not consider it is precisely the importance of collaboration in the process, whose impact on case is crucial.

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Justice is not justice

few days ago a friend of mine asked me what could do with a debt of 200 soles that someone owed him. He told me just the guy did not want to pay, even though my friend took the trouble to make him sign a paper. Even to my surprise, agreed to a penalty clause, which amount was higher.

At his insistence, I tried to explain as simple as possible the way the state protected the situation: first was to begin a grievance procedure where the debtor is quoted. If the procedure ends without agreement, "he said to my friend, then you can claim before the judiciary. Here I was thrilled and offered my services free of charge, telling him how we could raise the demand and expectations of winning the case. However, my friend asked me how much it would cost to handle the process and how long it would take. When I replied, thanked me very much and told me not to worry, that will some other means to persuade you to pay.

After we parted, I felt totally frustrated, not because he rejected my advice, but because the reasons abdicated recourse to the judiciary should be exactly the same as thousands of citizens who have small causes, but so many obstacles in the system as designed, simply shun the state courts. Cappelletti and described this situation: contained litigation, ie, to the inefficiency of the system, individuals will gradually lose their sense of rights, and conflicts that surround them are never solved or are resolved outside the law. This dire situation is the direct cause of complete failure of the procedural system with one of their goals: social peace.

What then? I think one of the key points for a reform of justice, beyond improving the system of appeal or repontenciar the National Judicial Council (to speak of two important aspects) is the creation of a system that addresses unique exclusively to solve those little things, to which can be effectively supervised by the court. This does not mean a reaction of the State with the intent of increasing the delivery monopoly justice, as there are other options such as arbitration or conciliation extrjudicial who are there to be used. The point is that the State meets the most suitable way possible what the Constitution was commissioned to establish the right of access to justice. This fundamental right, like many others, imposes on States to perform services and factual standards, which are carried out in different ways: creation of laws, government policies, actions of its agents, etc. Unfortunately, it is clear that the Peruvian State, throughout its history, has failed in this duty.

worth noting that the above proposal is nothing new. In Italy, for example, there are called the Small Claims Tribunals in the United States small claims court, and Brazil are the Juizo Especiais created by the 9099 Act in 1995 (replacing the Law 7244, 1984, law of Juiz de Small Causes ). However, Juizo Especiais -which may well be the role model in our country are not made by courts that simply dealt with minor processes. Absolutely. consists of a true realization of the phenomenon of access to justice for those who have limited resources, who are offered a procedure Celera, informal, free (at least entirely in first grade), where it promotes reconciliation, which can occur at any stage and, above all, where the judge decides less complex causes more for their standard of justice than by strict application of legal rules (this is a requirement in Article 6). In addition, public defenders assigned to each court plays an important role, as they provide legal advice to those who can not afford a lawyer *.

Beyond how it should design a similar system in our country , Whose starting point has to be a diligent study, responsible and interdisciplinary-is essential to note that justice, even for serious flaws in the system (where it says an alarming lack of political will), can no longer remain away from citizens so lazy. It is necessary for her to be there, having adequate remedies for any kind of need to raise the right material.

The judiciary can not continue to be synonymous with rejection, illegitimacy, delinquency, corruption. While overcoming these evils requires a lot of work, you must start somewhere, and I think there may well be an effort to get closer to justice individuals; that she cares about them, and they believe in that. And this seems like a dream, gradually may acquire shades of reality if you put your hands to work.


* This track is exciting because it is a concrete manifestation of the challenges of contemporary procedural law. I will try to shortly a paper on the subject.

Beautiful Woman Squirting

An interview ... and a thank Brief

Some time ago I had the opportunity to interview the lovable Prof. Juan José Monroy Palacios, which was published in Act of February 2010. However, for cold issues of layout and much to my regret, had to be reduced. Happily, thanks to a specific request of Juan Jose, the entire interview was posted on his blog with an undeserved mention to me. But if the words he used to refer to me filled with gratitude, the greater was my surprise when I found out that our conversation also appeared at number 15 of the known Revista Peruana de Derecho Procedure (now led by my Mario Monroy friend Palacios), where even dream to write. The Journal be purchased here .

Let this opportunity to thank both John Joseph and Mario for the great friendship they have given me over time that I know.

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criticism of the announced death of procedural law

General Theory process

"civil procedural law: RIP. At least this applies to commercial contract disputes. And it's good to be so. Next of 'rest in peace', on his tombstone may appear proud of their murderous name: it is called arbitrage. And the weapon: common sense. " These were the first words of a short article entitled "Strengths arbitration in the country ", authored by Alfred Bullard, published some time ago in El Peruano . The opinion can be read here .

I must admit that these first words gave me some concern. So far you've come to the arbitration has become the "killer" of the civil procedural law (even in contractual matters and commercial)? The author justifies his claim by warning that business disputes are being ventilated in larger quantities arbitral proceedings before the court, despite government subsidies to maintain its operation. This, "says Bullard," means that "the arbitration is defeating civil process on trade issues. "But his real position is not only in an apparent triumphalism or revenge of the arbitration that, finally, would have shed the yoke of the jurisdiction, as it makes no sense" divert resources "to solve those issues that the parties can resolve their own expense and without subsidies. Then he sympathizes with the judicial function, by asking:" Why overburden an already crowded PJ? ".

these ideas are I produced an overwhelming desire to write something about it. I realize that I do not intend to start here an ideological debate over the role of government, it would be a filibuster. On the contrary, I just want to address two issues arising from the ideas drawn from the reading.

i) The "antagonism" between procedural law (civil) and arbitration: Unless Alfredo Bullard is careless in the use of terminology when writing about law, there is no du da occasional He has placed the civil procedural law and arbitration for opposing poles, to the point that figuratively devoted to it as "murder" of that. However, this statement could happen as obvious, represents a serious theoretical error.

me explain. Before we talk about civil procedure, criminal or employment is deb and bear in mind the notion of general theory process (or procedural law, period) as an autonomous discipline of legal science, which is composed of all those principles, rules and theories that seek to describe this phenomenon called process, which refers to one of the planes of the legal system: the level of procedural law. It speaks of a general theory eral because, in fact, there are common elements among the various branches, in turn, are differentiated by their adaptation to the right material that protect (this is another level of law). Hence it is not difficult, for example, determine why the criminal process is so essential to the principle of presumption of innocence, because this process seeks to protect legal rights such as freedom of the accused. But the general theory of the process does not provide agency Unicam principles or rules for the judicial process.

By attempting to cover the procedural phenomenon in its entirety, the general theory of the process takes full effect in any event that could be described as a process. Thus, the processes that are pending before the court have particular features (Including the possibility of concluding final decisions and unchangeable), but not the only ones that exist at the state level. On the contrary, there are legislative processes , such as those used for the making of laws or political impeachment, and authentic administrative processes, administrative procedures misnamed only to distinguish them from the proceedings before the court. And what is the reason for the technical name? Very simple: a dialectical process is a set of ordered and successive acts, tending to an end. What is the purpose? It depends on what is the subject of protection of each process. And if you think the process is limited to the state, because it incurs a new error: there are also non-state processes, such as those present in societies and associations and also to a third party devoid of jurisdiction, legitimized by the legal system whom the parties submit their dispute to resolve. I refer to arbitration.

This is not nothing strange, it seems to be for Alfredo Bullard, based on that there could not have made a mistake in the use of technical terms. In fact, if anything can be inferred from the term arbitration is that arbitration as an institution is carried out through a process. But here is where the staunch supporters of arbitration have wanted to innovate and, of course, have not succeeded. The arbitration process which takes place anywhere in the world is fully informed by the categories and assumptions of the theory of the process. This can not be something of a surprise, if the Legislative Decree No. 1071-inspired by the Law of UNCITRAL and Alfredo Bullard leads a eulogy-establishes normative categories procedural and enforcement, counter-claim, the injunction, rebellion , etc., not counting the basic institutions upon which any process is sustained, as the legitimacy to act, inappropriate, revocation proceedings, and what followed. Indeed, the whole amount of the arbitration rules do not escape this conclusion. Thus, the categories that the arbitration process borrows Peruvian procedural law can be found and well explained in a book of this last area *.

worth, then ask Alfredo Bullard did He mean when put to litigation and arbitration in both ends, as if they were technically and conceptually distinct. By contrast, the two disciplines are so close that he does not know the process theory can not tell the arbitration process. Then again, if it is accepted that Alfredo Bullard used the terms with absolute conviction, resoundingly wrong. Moreover, a statement such as "civil procedural law: RIP" is completely unaware of the progress of science of the process in recent years in terms of access to justice and effectiveness of the process. "On what basis to assert that the procedural law, legal discipline is dead? This is simply incomprehensible.

However, Alfredo Bullard maybe not so blatant falsehoods on. Maybe he knows everything that has been said so far. In that case, there would be no choice but to "interpret the obtained" and admit that there was a "little" slip terminology on his part, he did not want to refer to civil procedure, but jurisdiction. And how different would it be, to the point that this review would have been much shorter because it would save all the ideas. Moreover, only by making this replacement would be fully felt the opinion of the writer, always from the perspective of a technical rigor is never over. In fact, here it is clear that Bullard speaks of a preponderance of the arbitration before the court when it comes to business commercial disputes. First talk of a "murder", then talks about a "defeat." This idea motivates the second point which I will discuss next.

II) aims to arbitration on the supremacy of jurisdiction: Alfredo Bullard does not hide his joy when he meant to imply that the arbitration would have defeated the jurisdiction, which would unequivocally state that justice is meaningless when the parties can resolve their own conflicts without state subsidies to promote that. However, errs again, singing a supposed victory when there is not even war.

If the arbitration has been recognized by the law is not to detract from the jurisdiction or, what is the same, make less jurisdiction. False. The reason was always give the parties a different mechanism to solve their problems. It is used little or a lot will depend, of course, whether or not attractive to users, and here the State, Legislative Decree No. 1071, has given a concrete answer, he wants to encourage the use of arbitration and, for power has reduced the "interference" of the jurisdiction almost to a minimum. This option is good or bad not put into question this time, I want to emphasize is that arbitration is an alternative to the jurisdiction, who wants to travel on that route, with all its advantages and disadvantages, to do so. But this solution, it is perfectly plausible to decline jurisdiction for those who can afford arbitration is a startling argument, only the product of a neo-corporatist vision of justice. The fact that recourse to arbitration over the state courts in certain areas means the gradual acceptance that comes from having this mechanism. If those who can afford it resort to arbitration because it offers a specialization will decide the conflict quickly, a formalism more flexible and mutually accepted by the parties, trust or any other advantage, then there is more than congratulating. Our legal system it has allowed those who offer this option for you. But this does not justify in any way to make up a conflagration between arbitration and jurisdiction (and not civil procedure, please) and, above, is declared the triumph of the former. Both coexist and are part of heterocomposición system in our country, Mr. Bullard.

On the other hand, the writer does not explain how the state can continue subsidizing the state courts if there are individuals who can afford the costs of arbitration, but after this protest is a perennial blind trust and all our ills can be solved through the intervention of the private sector. Does no corrupt referees? Do no evil awards? What happens to those who can afford arbitration but will resort to state courts? And in turn, to the claims of its well known Bullard underlying ideology and dogma, "the state is inefficient because it squanders resources and everything that comes from it is bad" / "private manage resources more efficiently and is good for them control everything. " This leads, inevitably, to think of any privatization of justice, but she, as an essential service of the State, never go to private hands, it should not.

The issue is not going to avoid talking subsidies or competition, but do fairer justice . This means better training of legal professionals (already took a first step), to promote higher quality standards, creating in judges a greater commitment to their society, and not under icy efficient argument, the State abdicates the administration of justice and the private rented a will equal or greater injustice that we experience now. The importance of the judicial function is far beyond what seems to Alfredo Bullard conceived. Not all great men who poured years of his life making process never lost the hopes in the state courts.


* On this, I recommend a short article but full of better ideas expressed here: Juan Jose Monroy Palacios, "Arbitration, jurisdiction and process." In: Revista Peruana Procedural Law, X, Lima: Communitas, 2008, pp. 141-151.

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Mandatory law school accreditation and professional certification: First step towards justice reform?

justice reform

It is no stranger to our justice system is in deep crisis. Corruption, lack of preparation of their actors and-why not-the deficiency of some regulations that hamper the effective provision of legal protection for individual cases have been listed as major causes. But this crisis is not solved in one day, we must go step by step.

apparently wanted the Central Government take the bull by the horns, as issued Supreme Decree N º 016-2010-ED published on 12 June, amending Articles 7 and 23 of Supreme Decree N º 018-2007-ED, Regulation of Law No. 28,640, Law of the National Assessment, accreditation and certification of educational quality. What were the changes? Now the bars are required to evaluate their members, in order to grant professional certification to exercise the profession. Also, law schools should be assessed in order to obtain accreditation to continue providing educational services. Indeed, this situation was something that the Executive had been announcing for some time (see The Law, No. 29).

As stated in the preamble to the amendments, "noted the increased powers of law and affiliates do not provide adequate training to ensure appropriate professional development, making the determination required to undergo mandatory an evaluation process to ensure minimum standards of learning, reasoning, ethical and defense skills as well as certification of their professional quality. " So, which aims to address one of the factors of the crisis in the Peruvian justice: the poor that have training system actors (judges, prosecutors, lawyers, assistants).

But what exactly is amending? The following rules describe the situation before.

Article 11 of Law No. 28640 establishes three stages in the evaluation: a) self-evaluation by the school itself, b) assessment for accreditation, filed voluntarily if any, and c) accreditation, which is the temporary public recognition of the institution who participated in an evaluation process. However, Article 7 of the Rules provided that the assessment for accreditation of law schools was voluntary, with mandatory only in the fields of health and education. For its part, the Act also provides a certification process for professionals, which is in charge of professional and conducted at the request of stakeholders. Again, the obligation to certify colleges is limited to the same categories: health and education.

But with the amendment, the mandatory assessment for the accreditation of educational institutions and certification of members of professional associations and not just limited to health professionals and education, but also lawyers. This means, first, that any educational institution of legal education must begin the process of self-assessment, culminating in a report to be submitted to a judging organization designated by the Board of evaluation, accreditation and certification of quality college education (Coneau), body operator of the National Evaluation, Accreditation and Certification of Educational Quality (Sineace). Then, the judging organization will initiate an external evaluation, where you can check the veracity of the self. If the assessment is favorable, will be granted accreditation, which is recognition for a period of five years.

should be noted that the legislation does not provide for suspension or closure of schools who do not obtain accreditation. This is not a condition for the functioning of such institutions (unless this is enforced by a subsequent law which, perhaps, would be desirable). By contrast, establishing various benefits for those who already obtained, such as allocation of funds, preference in government contracts, international donations, etc .- and also a record by the Sineace where results are displayed evaluation. Thus, the objective is: to offer this consumer information, the market would drive out those institutions that do not have a suitable teaching quality.

other hand, has also been established that professional certification will be mandatory for lawyers. Since them, to exercise the profession, are part of a professional association, can only be evaluated by the institution to which they belong, provided that it has been authorized by the Coneau and comply with the requirements prescribed in the Regulations, which allow that the Bar perform as certification authorities. Also, the assessment to its members is monitored by the Coneau. That is to say that- Unlike accreditation, the Regulations do not set the schedule for the professional certification, so that the Bar should determine this. Also, while not explicitly stated, I think it should be understood that the requirement of certification is required only for new members of the College, especially considering that the lawyers and colleges were not subjected to any certification.

I think the initiative is good and could bring benefits to solve our terrible problem, but from the rule of law there is much to be done, especially considering that is not the same evaluate teaching the Education Law or Medicine. Just to mention some issues: How strict should be the criteria for accreditation for educational institutions? Who will be responsible for designing? How will the register of accredited? What are the requirements to certify professionals who require colleges and Coneau approved? Should they be as stringent or allow a difference in certain areas of the country? What to do with those who fail the certification? The questions multiply, and only the State has the answer. We'll see how it addresses this challenge, could well be the first step of the long-awaited reform of justice.