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kind of constitutional 11/27/1908 20/11/1908

WARRANTIES REGARDING THE SECURITY SINGLE:

1 ª WARRANTY: LEGAL CASE FOR AUTHORIZED PERSONS DEPRIVED OF THEIR FREEDOM TO OTHERS.

Only the C and the law can establish the circumstances and manner in which a person may be detained or restricted, this is the guarantee of legality of detentions and arrests. Order requires competent official in accordance with Article 129 of the penal code, the agents police are obliged to arrest any offender of crime or misdemeanor in the act, the just sentenced prison, detention or imprisonment has broken his conviction or the detainee or prisoner shall escape. At first no one can be arrested without warrant but in the act (Article 130), is deemed flagrant offender:

• When currently committing the crime

• When you just commit

• When the run of the place of commission of the crime and is designated by the victim or another person as a perpetrator or accomplice

• At that time the commission immediately of the crime was found with objects from crime or signs in themselves or in their clothing that is suspected to participate or weapons or instruments used to commit
people
• To be assaulted, injured or victims of robbery or theft indicated as a perpetrator or accomplice to the crime just
committed
2 ª WARRANTY: LEGAL FORM OF DETENTION.

The arrest warrants to be duly intimidated, that is displayed prior to the offender and the force should only be used if they become necessary (Article 125 CPP) to prevent evasion of the question.

3 rd WARRANTY: LEGAL PLACES OF DETENTION.

The C states that only public places and only rarely affected house itself can be used to detain. It adds the prohibition on receiving the detention of a person without recording a public record of the warrant and the absolute isolation of the detainee (art. 19 n º 7, letter d).

4 th WARRANTY: LEGAL LIMITS OF DETENTION.

The C indicates the time at which to bring the detainee before a judge, these are the length of police custody, as opposed to judicial custody counted once as an individual before the court. The C deals with the period of police custody pointing 24 hours after arrest. If the arrest was carried out by court order, the subject should be made available within 48 hours, which in specific cases can last up to five or ten days by court order. The new penal code sets shorter periods (Article 131 CPP)




pretrial detention and provisional release

Preventive detention is a precautionary measure adopted by the supervising judge when he examined the defendant enters into the investigation but only if other precautionary measures are insufficient to ensure the procedure. The CPP is exceptional preventive detention, formerly vice versa, freedom was exceptional. The C of 1980 provides that the freedom of the accused shall, unless the arrest or detention to be considered by the judge as required for investigations or the security of the person concerned or society, adding that the law establishes the requirements and conditions (please e). The probation was a benefit that was granted to detained or "processed" to await the results of the research release. In the current system of preventive detention is exceptional and the C should be amended in this part. BAN


required to incriminate, POINT f

Prohibits to compel a individual to incriminate himself in criminal case can only urge you to tell the truth, another thing is the benefit to the work.

the prohibition against the penalty of confiscation, POINT g

Confiscation of property is the award to the treasury of the assets of the offender that affects the whole family. What is the fundamental law allows confiscation, a penalty of deprivation or loss of the effects of crime or property used to commit. Eg drugs that have fallen into seizure in violation of the Law 19366 and firearms for violating the gun law, 17,198

BAN ON PENSION RIGHTS, POINT
h
The prohibition against the loss of pension rights because it also affects the family.

action for compensation for miscarriages of justice, POINT i

Environment to enforce the liability of E º allowing a person to receive an indemnity as compensation for damage caused when he was deprived of liberty or convicted unjustly

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Are Andy Sixx Piercings Real?

class class constitutional constitutional constitutional 13/11/1908 06/11/2008

ARTICLE 19 .- The Constitution guarantees EVERYONE:

15 .- "The right to associate without prior permission.


LEGAL PERSONALITY TO ENJOY, THE ASSOCIATION IS TO BE INCORPORATED IN ACCORDANCE WITH THE LAW.


NOBODY CAN BE REQUIRED TO BELONG TO AN ASSOCIATION.


PROHÍBENSE ASSOCIATIONS contrary to morality, public order and security of E º
POLITICAL PARTIES NOT BE INVOLVED IN ACTIVITIES OTHER THAN THOSE YOU ARE YOUR NOT HAVE PRIVILEGE TO ANY OR MONOPOLY OF CITIZEN PARTICIPATION: THE LIST OF ITS ACTIVISTS IS REGISTERED IN THE SERVICE OF ELECTIONS E º, he who keeps BOOK OF THE SAME, WHICH WILL BE ACCESSIBLE TO THE ACTIVISTS OF PORTION THEREOF, YOUR ACCOUNTING MUST BE PUBLIC, THE SOURCES OF FUNDING can not come from money, goods, donations, contributions or credit of foreign origin, its statutes must CONSIDER THE RULES TO ENSURE EFFECTIVE INTERNAL DEMOCRACY. A constitutional organic law regulation of the other matters that concern them and the sanctions applicable to infringements of its provisions, WITHIN WHICH MAY CONSIDER Its dissolution. THE ASSOCIATIONS AND MOVEMENTS, ORGANIZATIONS OR GROUPS OF INDIVIDUALS PURSUING OR MAKING YOUR ACTIVITIES OF POLITICAL PARTIES NOT COMPLY WITH THE ABOVE RULES ARE ILLEGAL AND WILL BE SANCTIONED ACCORDING TO SAID Constitutional Law.


THE COP political pluralism. PARTIES ARE UNCONSTITUTIONAL, MOV OR OTHER FORMS OF ORGANIZATION WHOSE OBJECTIVES, ACTS OR CONDUCT NOT RESPECT THE PRINCIPLE OF DEMOCRATIC AND CONSTITUTIONAL SYSTEM, seek to establish a totalitarian system, AS THOSE WHO ALSO MAKE USE OF VIOLENCE, advocate or AS incite METHOD POLITICAL ACTION. CORRELATE TO CONSTITUTIONAL COURT TO DECLARE THIS UNCONSTITUTIONAL.


NOTWITHSTANDING THE OTHER SANCTIONS SET FORTH IN THE CONSTITUTION OR LAW, THE PEOPLE THAT HAVE BEEN PARTICIPATING IN THE EVENTS basis for the declaration of unconstitutionality REFERRED TO IN THE FOREGOING PARAGRAPH MAY NOT PARTICIPATE IN THE TRAINING OF OTHER POLITICAL PARTIES, MOVEMENTS OR OTHER FORMS OF POLITICAL ORGANIZATION, OR ELIGIBLE FOR PUBLIC OFFICE OF POPULAR VOTE OR PERFORM THE CHARGES LISTED IN THE NUMBERS 1 TO 6 OF ARTICLE 57, BY THE END OF FIVE YEARS AFTER THE RESOLUTION THE COURT. IF PEOPLE SAID THAT DATE in possession of above loads FUNCTIONS OR, THE LOST OF LAW.


sanctioned individuals OBLIGATION UNDER THIS CAN NOT BE IDENTIFIED DURING THE TERM REHABILITATION IN THE PRECEDING PARAGRAPH. DISABILITIES LONG POINT REFERRED TO IN THAT is doubled in case of recidivism "

This right is related to the right of assembly because both refer to groups of people who recognize each other some kind of reciprocal relationship and common purpose that can not be achieved only in partnership voluntarily with others. Both

rights budget used for the practice of other fundamental rights and are intended for joint exercise with others.

The difference between assembly and association is that the associative link has a claim to greater stability over time at the meeting.



Human beings are sociable by nature, exists in relation to other human beings and to the satisfaction of each of their needs, creates various forms of association such as family, church, municipalities, states.

Partnerships are groups more or less permanent common people, profit, religious, political, labor, professionals, students and others.

The right of association refers to the lawful authority to organize entities, to enter and stay there and retire.

this right was recognized in two aspects, one positive and one negative.

• In its positive aspect is the freedom to form or join associations freely existing without government or individuals to prevent it.

• In its negative aspect involves the exclusion of any form of compulsory membership given the impossibility of being compelled to join an association.

As the association is important for the human being is important to regulate to ensure free and proper exercise of the right.
With
able to exercise freely, it protects the right of society to prevent associations exist contrary to public interest.

The legislature can not prevent the right of association except in the case that C forbids it because its aims undermine morality, public order or security of E º.

The C 80 refers in particular to the type of association, paragraph 5 º and subsequent political parties for its importance in modern democracies, and because they doubted he could be their business if they lacked controls.

Article 1 of the Organic Constitutional Law 18,603 of 23/03/1983 defines political parties political party

"Voluntary Associations having legal personality, formed by citizens who share the same DOCTRINE OF GOVERNMENT POLICY whose purpose is to assist the functioning of constitutional democracy and to exercise a legitimate influence in driving the E º TO ACHIEVE THE COMMON GOOD AND SERVE THE NATIONAL INTEREST. "

The C indicates that political parties may not intervene in activities other than those that own them, nor have any privilege or monopoly on the participation of citizens, it seeks to prevent political parties from invading the field of national organizations and these become politicized, and considers that participation in national life is not restricted to political parties this being a right of every person, in this way also allows the participation of independent






PROTECTIVE ACTION
or constitutional guarantee (UNDER / PROTECTION)

ARTICLE 20 .- THAT BECAUSE OF ACTS OR OMISSIONS arbitrary or unlawful suffers denial, disturbance or threat to the legitimate exercise of the rights and guarantees established in article 19, NUMBERS 1, 2 nd, 3 rd paragraph four, 4 º , 5, 6, 9, final paragraph, 11 º, 12 º, 13 º, 15 º, 16 º WITH REGARD TO THE FREEDOM OF WORK AND THE RIGHT TO YOUR CHOICE AND FREEDOM OF CONTRACT, AND AS PROVIDED IN PARAGRAPH FOUR, 19 º, 21 º, 22 º , 23 °, 24 °, and 25 º WILL HAPPEN BY ITSELF OR BY ANYONE IN YOUR NAME, THE COURT OF APPEALS RESPECTIVELY, IMMEDIATELY UNDERTAKE THAT THE Measures it deems necessary to restore the rule of law and ensure due protection of AFFECTED, REGARDLESS OF OTHER RIGHTS THAT MAY ENFORCE OR TO THE AUTHORITY FOR THE COURTS. PROCEED
ALSO THE RESOURCE PROTECTION IN THE EVENT OF ARTICLE 19, WHERE THE RIGHT TO LIVE IN A POLLUTION-FREE ENVIRONMENT IS AFFECTED BY AN ILLEGAL ACT OR OMISSION attributable to an authority or individual.

ARTICLE 21 .- Any individual who is found to be arrested, detained or imprisoned in violation of provisions of the Constitution or Laws, CAN HAPPEN BY ITSELF, OR ANYONE IN YOUR NAME, A THE JUDICIARY TO INDICATE THE LAW, so that this order is saved the legal formalities and take immediate measures it deems necessary to restore the rule of law and ensure due protection of AFFECTED. ESA
JUDICIARY MAY ORDER THAT THE INDIVIDUAL IS BROUGHT TO YOUR PRESENCE AND YOUR ORDER WILL BE FOR ALL must obey charge of prisons or detention. BACKGROUND instructed, decree the immediate release or cause to be repairing the defects LEGAL OR WILL THE INDIVIDUAL A competent judge, PROCEEDING IN ANY brief and summary, and correcting such DEFECTS OR GIVING ACCOUNT TO WHOM IT MAY CONCERN Correct them.
THE SAME REMEDY AND IN THE SAME WAY, may be deducted FOR EVERYONE WHO ILLEGALLY WILL BE ANY OTHER DEPRIVATION, DISTURBANCE OR THREAT ON YOUR RIGHT TO LIBERTY AND PERSONAL SECURITY. THE JUDICIARY RESPECTIVE shall in such case, the measures in subparagraphs PREVIOUS deemed conducive to RESTORE THE RULE OF LAW AND ENSURE THE PROTECTION OF THE AFFECTED DUE.

precautionary actions are the mechanisms or instruments that enshrines the C for the shelter and legal protection of rights. The C referred to in Articles 20 and 21, although most are owned shares. Resources are the means referred to by law to challenge decisions or judgments. The denomination is the proper precautionary action, because the term action refers to the legal power of everyone to occur to the judicial authority of E º asking to be recognized or declared the law that claims to have, besides constitutional actions are not restricted to judgments. This supports the proviso under that exception can be understood as a resource, that is after the issuance of a judicial decision violates any guarantee of freedom and individual security.

ACTION OR REMEDY OF ART. 21

Also known this action as a habeas corpus. Born in England in the thirteenth century in the English Magna Carta of 1215 and its objective is to safeguard the rights protected by Article 19 No 7 of the CF, namely personal freedom and individual security of the person who is threatened to be arrested , detained or imprisoned or suffered or may suffer any deprivation, disruption or threat of that freedom or security breach of the C and the law. Its aim is to proactively prevent the execution of arrest warrants and detention or recover and obtain the immediate release of the detained or imprisoned illegally. This precautionary action enshrined in Article 21 is regulated by Articles 306 and following of the Code of Criminal Procedure should be understood repealed by Articles 483 and following of the new penal code. Also banc of December 19, 1932

GROUNDS: (inc 3) the fundamental assumptions that warrant the actions of defense are any deprivation disturbance or threat of liberty or personal security, which is verified with a breach of C and the law. Deprivation of liberty is set if the person has been arrested detained or imprisoned in violation of the provisions of C and the law. Threats to freedom of movement are configured when the person has any other kind of disturbance or deprivation in personal freedom and personal safety as a result of a breach of C or laws, for example, unlawful detention or threat of kidnapping.

The remedy is preventive in case of threat and repressive in the event of disruption or deprivation. The preventive or under ex ante is deducted, processed and failed before they commit the attack on personal freedom and follows to prevent irreparable consequences later. The under repressive or ex post is further deducted, processed and failed in relation to conduct and held that damages the legitimate exercise of this freedom.

WHO CAN BRING? The subject active, the C says it can be deduced by themselves or by anyone on behalf of the affected, ie it need not stand the person who suffers the deprivation, disruption or threat of freedom of movement, anybody can do in your name. The third party need not prove in the courts any specific interest, suffice to place on record the facts and in this sense is a CONSTITUTIONAL GOVERNMENT ACTION.

JURISDICTION: the C says: the judiciary that the law, this is the C of appeals, but must first determine whether or not judgments, if any, the appellate court shall have jurisdiction which is superior the court that issued the ruling. If no resolution but it is known where the facts have occurred, the respective appellate court will have jurisdiction in that territory, if there is no certain knowledge of that fact, the appellate court jurisdiction is the jurisdiction over the place where the residence of the person protected.

PROCEEDINGS OF THE COURT: the court, knowing the amparo is authorized to order any protective measures deemed necessary to restore the rule of law and ensure adequate protection of the affected, for example, order that the individual be brought to their presence, order after hearing the witty immediate release or make the person available to the judge. Par deduct amparo is not required to comply with formalities and do not use legal forms of any kind, can be deduced via fax, email or verbally where you need a written record in the Registry of the Court of Appeal. The appeal should fail within 24 hours unless some care is necessary, if the court accepts the appeal may be appealed to the CS. Finally, it should be noted that Article 95 of the new penal code provides for the judge under warranty, preventive action is meant complementary or the extra work envisaged in CF.

THE RESOURCE PROTECTION

The application for protection is a preventive action of certain fundamental rights against impairment may encounter as a result of actions or omissions arbitrary or unlawful or private authority.

It aims at avoiding implementation of the rights that these are mere statements because as stated in the Constitutional Act which established it, no matter how perfect a bill of rights as these are unrealistic if not devote the resources necessary for its adequate protection .

Grant a right solemnly proclaimed without recognizing effective legal action contributes a violation of the basic principles of constitutionalism.

The incorporation of resource protection in the C 80 is the most important innovation in the D º Chile in the last 100 years (cea Egaña) and allowed to implement the rights even of a preventive nature.
This action is intended to protect the rights that the CF states explicitly, but in its case law evolution has been covering other rights by way of bonding with protected rights such as equality before the law and property law , understanding In the first case that arbitrary discrimination occurs in the second property also exists on certain situations or legal status, what Professor Alejandro Vergara Blanco called proprietarization rights.

WHO CAN BRING?: The active subject, Article 20 says in paragraph one "who ..." wide expression does not exclude anyone in advance of filing the action, threatened, disturbed or in private unlawful exercise of its right, you can use by themselves or by anyone acting in his behalf before the Court of Appeals. It may be a natural person, corporation, national or foreign resident or transient, more or less of age.

WHAT IS THE JURISDICTION?: Court of Appeals, that is, the court in whose jurisdiction has committed the act or omission committed arbitrary or unlawful.

custodial measures, the court has broad authority to protect, foster the appeals procedure can take the measures it deems necessary to restore the rule of law and ensure adequate protection of the affected, it is a vast power entrusted to the courts which fit a wide range of protection measures that are determined in each case.
Example. Order not innovate, paralyzing effects of the act which is depriving, disrupting or threatening the legitimate exercise of a fundamental right, but only while ultimately resolved. For this reason the application for protection represents advantages, there is no passivity of the courts.

The regulation of resource protection, complements the car agreed on the handling and failure of the action for protection of constitutional guarantees given by the CS and published in the OJ on 27 June 1992, renovated in 1998 and in July of 2007 (it was said that it is unconstitutional).

CAUSAL ASSUMPTIONS OF ORIGIN OR: facts and reasons for filing protective action is on one hand the existence of an unlawful act or omission or arbitrary and for the other that such acts or omissions cause deprivation, disruption or threat to the legitimate exercise of any right to exhaustively stated in Article 20, requires:

1 The existence of an act or omission, that is, actions or conduct or omissions or abstentions

2 º illegality or unreasonableness of such act or omission, it is understood that what is illegal is a violation of a contrary statute or more broadly the existing legal order. Arbitrariness is the lack of rationale, ie, a manifestation of mere whim of unfair or irrational agent

3 º following the act or omission the person concerned suffers deprivation, disruption or threat to the exercise of any of the rights and freedoms listed therein.

means to suffer is to experience or suffer physical harm or injury. The deprivation is that a person is prevented from exercising absolute right or is stripped of it, is completely unknown or their elected essential, for example, if someone reports that will meet and denies the authority or if stripped of their property. The disturbance is imposed on the holder obstacles or difficulties or unfairly burdensome makes the peaceful exercise of a right which it owns. The threat is that the person gives you a legitimate fear that the right of the currently enjoys can be compromised in some way, not sure, or feel an imminent danger, such as when you install a polluting factory
4 º causal link between the act or omission and the deprivation, disruption or threat.

5 ° Inclusion of the right or freedom Arriagada exhaustive catalog forth in Article 20.

6 The legitimacy of the right whose violation is claimed. The C indicates that only legitimate exercise of a right is protected by the protective action.

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ARTICLE 19 .- The Constitution guarantees EVERYONE:
8 .- THE RIGHT TO LIVE IN A POLLUTION-FREE ENVIRONMENT.
STATE DUTY IS TO ENSURE THAT THIS LAW IS NOT AFFECTED AND SAFEGUARDING THE PRESERVATION OF NATURE.
The law may establish specific restrictions on the exercise of certain rights or freedoms TO PROTECT THE ENVIRONMENT
ARTICLE 20 PARAGRAPH TWO: PROCEED, ALSO, THE USE OF PROTECTION IN THE EVENT OF N ° 8 of Article 19, WHEN THE RIGHT TO LIVE IN AN ENVIRONMENT FREE OF CONTAMINATION IS AFFECTED BY AN ILLEGAL ACT OR OMISSION attributable to an authority or individual.

For the first time enshrined in the C. The law 19 300 "APPROVES LAW ON GENERAL ENVIRONMENTAL CONDITIONS" DO 09/03/1994 complementary. The environment is all around us and that allows the development of life, refers to the earth, its waters, the atmosphere.

Law 19,300 defines the environment in its Article 2 letter ll:

"ENVIRONMENT: IS THE GLOBAL SYSTEM MADE UP OF ELEMENTS NATURAL AND ARTIFICIAL NATURE OF PHYSICAL, CHEMICAL OR BIOLOGICAL, CULTURAL AND ITS INTERACTIONS IN PERMANENT CHANGE BY HUMAN ACTION OR NATURAL AND GOVERNING AND CONDITIONS OF EXISTENCE AND DEVELOPMENT OF LIFE in its various manifestations "
The same Law 19,300 defines pollution in Article 2 letter c:

" POLLUTION: THE PRESENCE IN THE ENVIRONMENT OF SUBSTANCE, ELEMENTS, ENERGY OR COMBINATION OF THEM, IN MERGER OR STAY HIGHER OR LOWER, AS APPLICABLE TO THOSE REQUIRED IN THE LAW "

DUTIES ENVIRONMENTAL OF E º:

Article 19 No 8 in C provides two duties environmental for the E º:

• THAT THE LAW IS NOT AFFECTED: under this obligation, the E º should be prevented, that is, do they violate the law, the preventive actions that the E º must take to comply with This should relate to the precautionary principle (principle used in international matters)

• promote the conservation of nature: nature is taking care that its resources are not exhausted, destroyed or impaired.

The duties of the E º materialize through the environmental management instruments, among which are:

• Environmental impact assessment
• Issuance of environmental quality standards
• emission standards pollutants
• Performance management plans, prevention or decontamination

There is a principle of responsibility of the polluter-pays (eg Bonds issue), but there is a more philosophical answer today about the consequences of tomorrow (see Hans Jonas )

The legislature is empowered to restrict certain rights such as property, economic freedom, freedom of movement, hence, is guilty of vehicular restriction because it is given by decree and the C says law.

this right is protected by a writ of protection of Article 20 item 2. In the original C of three conditions required copula:

• That was an act
• That they were an unlawful or arbitrary
• That is attributable to an authority or individual

The requirement of all these requirements made it difficult constitutional actions that stood to be successful. After the reform introduced by Law 20,080 of 2005, the use of protection is broader and less demanding. The appeal must be whether the right is affected by an unlawful act or omission attributable to authority or person, illegal or arbitrary (illegal is against the law, the arbitrariness is baseless).

ARTICLE 19 .- The Constitution guarantees EVERYONE:
13 .- "The right to assemble peacefully without prior permission and without arms.
MEETINGS IN PLACES, STREETS AND OTHER PUBLIC PLACES OF USE ARE SUBJECT TO THE GENERAL PROVISIONS OF POLICE "

The right of assembly is related to other rights and values \u200b\u200bthat are essential and necessary in a democratic system and through which civil society participates in public affairs, for example, the right of petition, freedom of expression, freedom of association is related to values \u200b\u200band principles such as pluralism, participation, control of government actions, etc. For example, when an unknown number of people who share a common purpose or interests voluntarily decide to express them, make them public or events jointly exercised not only the right of assembly, but also freedom of expression, whereas other rights , freedoms and legal interests, the relationship with the right of assembly is not so harmonious, like property rights, freedom of movement, right to privacy, public order, etc. In the event of an impact if it does not resolve the C or the law, be determined in each case the that takes precedence or adopt measures to exercise and harmonious whole.


The constitutional provision distinguishes peaceful and unarmed meetings and meetings in public places. This distinction matters in determining the regulation must adhere to, those which are in private premises do not require permission, the limitation is to be peaceful and unarmed, the public spaces require a notice, may eventually not authorized by the authority or may prohibit them on certain streets and places, if notice has been omitted and no authorization may be dissolved by law enforcement and public safety.


The meeting this right is protected by the public meeting, a group of people who recognize each other some kind of reciprocal relationship or common interest or have held in places open to public use, streets or squares. This may relate to the group of persons belonging to more or less formal organizations or those who come voluntarily to a call, with the resulting union only accidental or temporary. These meetings require adjustment so that they can take timely measures to enable the speedy access to their homes and jobs to non-participants and to take measures to avoid the excesses and abuses, protect people and property public and private.


Article 19 No 13 to refer to this law refers to its regulation to the general police regulations, which constitutes an exception to the legal reserve, since it is the only case in which the regulation of a right is given to a rule under which the legal hierarchy contained in the DS 1086 September 16, 1983. In this part of the C does not agree with the system for the protection of human rights:

• Pact of San Jose, Costa Rica, art. 30

• International Covenant on economic, social and cultural, art. 4 º.

This transfer from C to police standards is an anomaly that could eventually lead to arbitrary regulations, especially considering the very broad terms in which it is intended.

What is meant by general police regulations?

Cea Egaña author distinguishes between three positions:

• Those who think that these rules are not laws and regulations or rules of lower rank because the rights can only be regulated by law

• Those who understand that it comes to rules issued by the President the republic as the DS 1086 to 1983.

• Those who argue that Article 19 No 13 refers to orders issued by the director general of police and the rules that have been issued by a competent police authority in a territory as an area manager.

These discussions do not seem relevant, since what matters is that in practice this right is still governed by a statutory provision. The principle of legal reserve is a guarantee of fundamental rights regulations under which the supplementary regulations can only come from the legislative or at least that should be the general basis excluding it to the executive.

also regulates this right:

• Law art 113 votes and ballots

• Law 19,638 of worship, Article 6 letter e.

ARTICLE 19 .- The Constitution guarantees EVERYONE:
14 .- "THE RIGHT TO REQUEST AUTHORITY ON ANY MATTER OF INTEREST TO PUBLIC OR PRIVATE OTHER WITHOUT LIMITATION THE PROCEEDING IN respectful and appropriate "

is related to the principle of helpfulness of the E º for the human person (art. 1). People have the right to make requests to the authority, whether the representatives of the three branches of E º, without any limitation other than to proceed in a respectful and appropriate. Not include the right to have a favorable response.

This is a right exercised primarily to the administrative authority and this has been delivered to the comptroller says:

"PUBLIC ENTITIES ARE REQUIRED TO RESPOND TO REQUESTS FOR MANAGED A REASONABLE TIME AS THE BASIS OF ADMINISTRATIVE TECHNICAL ACCURACY AND GOOD Should be written "
CGR Opinion No. 12,960.

"EXPOSES THE LIABILITY OF PUBLIC TO ANSWER AS THAT APPLICABLE LAW, be accepted, refused or declared incompetence, IF NECESSARY, BECAUSE GIVING KNOWLEDGE OF THE APPLICANT TO ANSWER, WHAT REASONS FOR ACCURACY AND good management techniques must be in writing. HOWEVER, THE ABOVE INDICATES THAT INDIVIDUALS HAVE COMMITTED ANY ACTS BY LAW IN WHICH THE CLAIM "
CGR Opinion No. 42,096, 2003

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weeks of the journal article online legal legal publisher NEWS CONSTITUTIONAL

Information for the week of 28.11.2008 to 04.12.2008
(well wena publisher, each book you buy what you updated and you can read this magazine)

relations and the principle of supremacy reality
Rodrigo Ignacio Palomo Vélez Professor of Labour Law
Faculty of Laws, University of Talca

Summary. The principles of labor law up one of the main elements needed to support the autonomy of the legal discipline. Nevertheless, the doctrine did not paid sufficient attention. The aim, at this time, confront the traditional theory of the principle of supremacy of reality with new problems arising from their application in industrial relations.

initial approach

One of the elements to affirm the autonomy of labor law as legal discipline is the existence of certain principles that are proper and, therefore, are different from those existing in other areas of law. These principles are to form the substrate of labor law and respond to a particular conception of it. In this regard, the principles of the Labor Law must appear connected and harmonious, since, in full, outlining the characteristic features of this branch of law.

Indeed, the Labour Law has certain principles that inform and inspire some labor standards directly or indirectly a number of solutions (judicial, administrative, etc.), so it can serve to promote and guide the adoption of new standards, guide the interpretation of existing and resolve cases not covered. However, the receipt and application of these principles in our legal system has not been uniform and has waxed and waned. In this sense, Professor José Luis Ugarte has confirmed the importance of "quiet return after decades of silence during the era of labor flexibility, as classic as the forgotten principles of labor law. "

Now, pick the question posed by Professor Américo Plá, author inevitable when discussing the principles of labor law: Who can invoke these principles?, "Only the workers or you can rely on the employer? The same author tells us that an initial response suggests it may only be invoked by the workers, since these principles respond to the rationale of the Labour Law, that is, a guardianship or protective nature of most Weak relations work. However, careful reflection point requires a more nuanced. The first is to distinguish the principles derived from the idea that protective or custodial nature (protective principle, the principle of inalienability and principle of continuity) of the other principles (for example, the principle of supremacy of reality).

Regarding the former, it seems logical that can only be raised by the worker. In contrast, in principle no reason to prevent others can be invoked both by the worker as the employer. In short, the principles of labor law need not always apply for the worker, although generally so, but must be read to apply to any employment relationship, under any circumstances.

problems in implementing the principle of supremacy of reality

approach the problem in the application of these principles, the supremacy of reality, and review some illustrative cases. Professor Plá

defines this principle by stating that "in cases of discrepancy between what happens in practice and what emerges from documents or agreements, preference should be given to the first, ie what happens in the field of facts. " In this way, there have been the notions of "contract" reality "and" effective relationship work ", meaning that the application of labor law is increasingly dependent on a strict legal relationship, whose existence is independent of the act that determines its birth.

However, this principle also be applied with some habitual in our courts, has been taken over by our legal work on Article 8 of the Labour Code, which establishes a presumption of employment factors, stating that "any provision of services on the terms stated in the previous article presumes the existence of an employment contract. " Furthermore, the acceptance of so-called "clauses tacit "and the origin of the modification of contracts in this way confirm the validity of this principle. But, what problems has the principle of supremacy of reality with respect to certain legal concepts?

a) The concept of subordination or dependence. The employment contract has three essential elements to be submitted copulatively: the provision of services, compensation, and the subordination and dependence. Except for this last item, others are also in the provision of services not covered by the Labour Law (leasing services, office, commission, etc.) what follows that the element tipificante of the employment relationship is precisely the subordination or dependency.

However, this element has not been specifically defined by the legislature, as has been the doctrine and jurisprudence, administrative or judicial, who have filled this concept differentiating content. Thus, one could argue that there are tangible signs of dependence or subordination, such as the existence of generic or specific instructions on how to do the work, some time off work and well-circumscribed, the obligation assistance to the workplace, the use of uniform, the obligation to pay interim accounts, exclusive services, participation of workers in the business organization, and so on.

The problem is that the traditional or typical work is in crisis, so it is not so easy, now, to determine the occurrence of the element of subordination or dependence. Moreover, the requirement of evidence showing this link, by the law, has two limitations: a.

- First, there is no uniformity regarding the requirement of one or more of these signs demonstration. The rating can not be done in the abstract, but each case must be analyzed.

b. - On the other hand, Some of these are challenged by evidence showing the same line, so there is controversy over its authorship.

However, in respect of legal concepts such as this, is very important the principle of supremacy of reality. For this purpose, such principle can be summarized by noting that the terms the parties use to describe the form or manner that will regulate the legal relationship has no special importance, since Article 8 of the Labour Code establishes a presumption work. Generally, the question arises in respect of cases where the parties have self-appointed legal relationship as a benefit service, but when it ends, usually by unilateral decision of the employer, the provider of the service claimed that there was an employment contract. However, as originally anticipated, I believe this principle should apply in both directions, ie the new form view (provided they meet in particular the cases of subordination or dependence) and in the opposite direction, this is, when the parties have their legal relationship as self-appointed work and in fact there is evidence of the requirements of article 8.

The preceding statement becomes important if we think that, due to lack of clarity and uniformity on the subject, there are still Where the parties have signed labor contracts in circumstances where such contracts do not exist in reality, for lack of the relationship of subordination or dependence. Consider, for example, in the case of part-time faculty, for which the judicial and administrative law initially argued that it should be governed by the Labour Code to then consider and hold otherwise. Another example is the simulated work contracts for immigration benefits. In short, the principle of supremacy of the evidence suggests that in the event of a discrepancy between what happens in practice and what emerges from the documents or agreements, must accept what has been happening in the realm of facts, this solution is favorable or not the interests of the worker. Professor Plá notes in this regard that "in the search for real truth, that is what inspires the principle of primacy of reality, either party may invoke the real truth in front of the formal aspects that deface" .

This conclusion has been challenged, noting that the principle of supremacy is not really a first round, since it prevails in its application the protective principle, especially in dubio pro rule operator. In this way, and applying this reasoning to the problem, when in doubt about whether certain factual circumstances set or not the element of subordination or dependency, Shall be understood that there is contract work, because it implies a higher level of protection of the worker.

While experience shows that hardly the employer to the employee will recognize a category that does not perform effectively in the facts, or will commit in writing to enforce a contract which will then ignored in practice, the same experience shows that there are exceptional circumstances, so the employer can not be deprived of the possibility of invoking that principle of reality. Moreover, the rule in dubio pro operator only plays in the interpretation labor standards, but not in the establishment of factual circumstances, this would imply that that rule has left its natural environment. In short, the protective principle does not entitle to do anything in the name of protecting the worker, unless when in fact there is no employment relationship.

b) The concept of undertaking in the Chilean labor law. Another concept that has required the application of the principles of the Labor Law is the company for labor law purposes. In our current regulatory model has prevailed interpretation of the term that identifies companies with the legal form that shows the holder. This from definition in Article 3 of the Labour Code, specifically to the requirement of certain legal individuality. This design limits the exercise of employment rights even more than it already limits the legislature itself. On the other hand, new forms of economic organization show that business organizations are much more complex, so-called emerging business groups and other phenomena. Professor Sergio

Gamonal recognizes that the principle of supremacy of reality has played a crucial role in determining whether a group of companies is a single company for business purposes. But the author goes further. States that the principle of supremacy of reality is applied based on two elements: a) there is a discrepancy between what happens in practice and what emerges from the documents, and b) the situation where the facts are more favorable to worker who issued the documents. In the opinion of Professor Gamonal, so that the interpreter may give preference to the facts, must attend the two conditions copulatively. He argues this indicates that the principle of supremacy of reality is objective in its application, respecting the two items described, as it relies on the power control of the employer, within the organization that conducts and manages, and is inserted the worker, which leads to the reality of the employment contract never occurs behind the employer, because the law gives power hierarchy within the enterprise. " Again the question is moot.

however, already indicated that this principle is usually invoked by the worker, and that only in exceptional cases where it would appear its invocation by the employer. I think, in this order of things, that the tutelary nature of labor law in its current state, does not preclude the possibility of starting to analyze the reality of the facts regardless of the interests of each party. This does not mean entering the "diabolical test" of the motivations of employer, as the professor Gamonal, but only strictly apply the principle at issue. Conclusions



is necessary to reopen discussions on the principles of the Labor Law, from a dogmatic and practical. A factual scenarios arise daily calling for the application of these principles so that the debate is in itself important to reaffirm the autonomy of the legal discipline. Professor Plá notes that these principles "have enough elasticity to fertility and not get caught in concrete legislative formulas and must have the proper malleability to inspire different rules depending on the diversity of circumstances. " Elasticity and fertility is that which should not hinder that certain principles can be invoked by both sides of the employment relationship, to discuss the merits of its application, to indicate that there was an excess or to find the right frame if the counterparty has made improper use of it. Ultimately, and with the understanding that the application of the principles can not be measured with a precision characteristic of the sciences, was recognizing that the principles have a certain amplitude and plasticity, but no longer have limits and thoroughness. Can not be stretched to either side and with any intensity. Must conform to certain parameters, but existing elastic.

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APPENDIX CONSTITUTION OF THE REPUBLIC

's edition of the Official Journal on Thursday, December 4, 2008, published Law No. 20303, creating a professional army facility for the Armed Forces.

The above rule, amending Law No. 18,948, the Constitutional Organic Law of the Armed Forces. Feeddelamona

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publishing ke Tommy smoke? alfajores with Macon?

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