Ejemplo De Vacio Legal En Chile

There was also a legal vacuum in municipal capital gains, exempting the payment of municipal capital gains tax to those who sold or inherited property between October 26 and November 9, 2021. A judge has a problem when there is a legal vacuum in the law. Faced with this situation, the judge must always give a solution, that is, he cannot refuse to promulgate a resolution at any time, so he must do something to fill the legal void. In order to fill in the legal gaps in the law, the judge may use various techniques. It is interesting to observe the approach with which certain codes, both European and American, approach the problem of legal loopholes. Finally, the other way to fill the legal void is to go to other sources of law. In this case, you can resort to customary law or general principles of law. `Where a dispute cannot be settled in accordance with a particular legal provision, recourse shall be had to the provisions applicable to similar or similar matters. However, if the case remains doubtful, it shall be decided in accordance with the general principles of the legal order of the State. In the last part of the commandment, the new code introduced an amendment to the previous one, which established the use of “general principles of law,” which was certainly based on the desire to decide, in some sense, the discussion of the nature of these, a discussion that we will discuss in the next paragraph.

These fundamental principles, enshrined in the Constitution and in international treaties, must be respected, promoted and guaranteed by all public and private bodies, as stipulated in articles 5 and 6 of the Chilean Constitution of 80. Therefore, as Ibáñez (2003) pointed out, the centrality of the Constitution requires an understanding that the judiciary is endowed with a certain dimension of power or compensatory control within the framework of the rule of law and that its competence represents greater room for manoeuvre, given mainly by the obligation to protect dynamic and extensive fundamental rights. A loophole occurs when there is a loophole in the law. With a legal vacuum, we refer to this situation, which is not foreseen, but which the legal system considers correct, which leads to difficulties in the application of legality. The legal vacuum in VTC was another of the most notorious, a vacuum that allowed Uber and Cabify to compete directly with taxis. Swiss Code.-It deals with the issue in its article 1 °, which stipulates in the corresponding part: “In the absence of a legal text applicable in the matter, the judge must rule according to customary law and, in the absence of habit, according to the rules that he will dictate when he has to act as legislator. The judge will be inspired by the solutions set out in the doctrine and on page 905 of the Jurisprudence”10. This is, on the whole, the system advocated by François Gény11. The recent judgment of Judge Macarena Rebolledo Rojas of the Second Family Court of Santiago established the rights of filiation of two women over their child born as a result of an assisted reproduction procedure and instructed the Civil Registry Office to amend the respective birth certificate in order to register this fact.

The decision has led to critical comments and accusations from opinion columns and letters. It has been said that there is an instrumentalization of judges by “gay activism”, that the above decision violates the legal rule of ancestry, and that these and other actions constitute a dangerous erosion of the rule of law by ignoring the constitutional distribution of competences (see, for example, “Gay activism and instrumentalization of judges”, statement by Hernán Corral, El Mercurio, 10. June 2020; “There is only one mother”, opinion of José María Eyzaguirre, La Tercera, 27 June 2020, and “Rule of law: another crisis that adds up?”, opinion of Hernán Corral, La Tercera, 19 June 2020). Given the harsh reality that most of our politicians and elite are corrupt, the only solution on the horizon is to draft laws that will fill those “legal voids” that allow for the emergence of the “irregular” behavior we condemn today. That is why today`s elites, as a great defense, try to excuse their behavior by appealing to the inaccuracy and inadequacy of the legal framework that governs them. And as a solution, they propose the development of new laws and regulations that fill these “gaps” and regulate behavior. Are we safe? According to experts, we have rights to our data, but the legislation is not clear as to its protection. For example, today many private institutions and websites have the Ruth databases of the population, which they use without the consent of the people, although this can be claimed. It also raises concerns about the ethical aspects that are implicit in this whole system. For example, can mitigation measures be required from the owner of a home in the floodplain if resources have not been concentrated prior to measures to mitigate the source of risk? In practice, with the exception of investors in the real estate sector, the possibility that a person could benefit from Article 2.1.17 is almost non-existent due to the high cost of a well-founded study. Other forms of solution include a full interpretation of a narrow norm or consultation with other sources of law that equate this type of gap with the legal gap. The problem with the obsession with constantly drafting laws to fill all the “legal loopholes” that arise whenever someone finds a way to gain personal advantage at the expense of the rest of us is that, as Plato puts it, they “will spend their lives publishing new regulations every day…

Make corrections to corrections” in the hope of one day establishing the common good. But those who seek this will look like the sick who, knowing they are wrong, limit themselves to taking painkillers and remedies to relieve suffering, but do nothing to cure the disease or change the lifestyle that makes them sick. Plato says that “all the remedies they take only complicate and exacerbate their disease, and yet they always wait for the health of any remedy that is advised to them.” In addition, the same patients are upset and angry with all those who, instead of prescribing painkillers, advise them to make radical changes to their lifestyle. All the more reason for the courts to act if there is a gap, i.e. a situation not expressly provided for by the legislator, which also affects fundamental rights. It should be recalled that, in the above-mentioned first judgment, Judge Rebolledo held that the Chilean legislature had only partially regulated the situation of children born of in vitro fertilisation techniques with regard to their filiation, since Article 182 of the Civil Code – the only legal norm in this area – presupposes that couples undergoing this technique, are still heterosexual couples. in circumstances which, in practice, are also the case for same-sex couples, as was the case in the case which was the subject of their decision. The judge noted that the absence of a comprehensive settlement of this situation implies a violation of the human rights of both women and their common child, as set out in the Constitution and in the international treaties ratified by Chile. In the presence of the legal vacuum, there is the problem of its correction, a problem that is no longer that of the interpretation of the law, but in the strict sense of the integration of the law. It cannot be interpreted because it seeks to determine the true legislative will, it presupposes that there is such a will and that there is therefore a law that must be interpreted. Otherwise, interpretation would be unnecessary.

We do not believe that on page 903 it is possible to speak of an presumed will of the law, of what Parliament would have wanted if it had not foreseen that the situation was resolved, because in doing so it would not determine what exists, but would seek what does not exist or could not exist. The problem of loopholes1 is one of the most interesting and difficult to present to the legal interpreter, and undoubtedly one of the most worrying for teaching. The reason is simple: no legal system, not even the most perfect, can contain loopholes. Josserand says: “The text, even the clearest, could not foresee all the difficulties that arise in practice, because life is more ingenious than the legislator and the best lawyers. 2 In the light of the above, it should be added that, in accordance with the provisions of article 10 of our Code of Organs of The Courts, once their intervention has been legally invoked, they cannot apologize for the exercise of their authority, even if there is no law regulating the dispute submitted to their decision. French and German codes.-Like ours, these prestigious legislative texts do not contain rules concerning legal loopholes.