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Based on a historical and comparative-law approach, the paper aims to clarify the content of sections 52 and 53 of the Chilean Securities Market Act (Title VIII of the Act), whose infraction triggers severe criminal liability (section 59 [e] of the Act), in addition to administrative sanctions and civil-damages liability (sections 58 and 55 of the Act). After considering the historical figures of agio and price tampering, the paper focuses on a comparison with the most influential foreign law in the field: sections 9 (a) and 10 (b) of the U.S. Securities Exchange Act (including Rule 10b-5) and the European Union Market Abuse Regulation (Directive 2003/6 and Regulation 2014/596, mainly). In this way, the author seeks to unveil the precise anti-manipulative content of Title VIII of the Chilean Securities Market Act, and especially of its section 53, offering keys for a right understanding of Title VIII and the respective criminal offence of section 59 e). Once the Chilean law is placed in a historical and comparative-law context, the path towards an exhaustive dogmatic reconstruction of Title VIII -and its related rules - is highly favored. Thus, the paper aims to represent a substantive basis for a comprehensive and detailed hermeneutic proposal on the matters of Title VIII. Such proposal will be addressed in a subsequent work. [ABSTRACT FROM AUTHOR]

The purpose of this paper is to describe the criminal admonition procedure and list its main features. Moreover, this paper lists some key points that need to be replicated in the upcoming updates of legal procedures. Finally, it highlights some practical issues arising from forensic practices. The paper thus aspires to contribute to the ongoing research on admonitory procedures as well as to help highlight current critical issues. [ABSTRACT FROM AUTHOR]

The aim of the paper is to explore the content of the duty of care, which is the most important element of imputation by way of negligence. For this, the paper argues and defends three main ideas: First, these duties of care are constructed by an objective standard, which contradicts a mere psychological negligence that identifies a mental failure in the agent. Second, the notion of care is always inalienable, hence any dogmatic effort to change it by mere cognoscibility of the wrong is insufficient. And, finally, in order to define what the careful conduct according to context is, it is essential to take into consideration the specific knowledge and capacities of the subject, which denies those theories that focus in the knowledge and capacities of an abstract average man. [ABSTRACT FROM AUTHOR]

This paper contrasts the process of recognition of the victim's rights in the Chilean criminal procedure reform, which was introduced alongside the new accusatorial system in the year 2000, with the one that has occurred after that, which has consisted in several proposals for legal reforms, in a constitutional reform and in litigation before the Constitutional Court. The paper discusses the hypothesis that there is no continuity among the two phenomena, which are based in opposing understandings of the issues at hand. Finally, there is a description of how, if some or all of the new reform proposals that affect the victim's rights are implemented, the Chilean criminal procedure will face a unique situation, and one that was in no way foreseen by promoters of the original reforms. [ABSTRACT FROM AUTHOR]

The goal of this paper is to make a contribution for scholarly knowledge and jurisprudential development of our country through the presentation of information and the elaboration of arguments to resolve a specific problem that has been highly debated before Chilean courts: the possibility to allow or to deny the defendant (or her lawyer) --according to article 332 of the Criminal Procedural Code-- the use of statements made by witnesses and expert witnesses in a trial that was annulled in the new trial that is the consequence of the first one. I will argue that there are no good legal reasons nor of principles and values that inspire our adversarial system that justify an absolute prohibition to use these statements with the goal to confront those witnesses and expert witnesses with their prior inconsistent statements. To achieve this, the paper will propose a conceptual framework to understand the problem (right to confront witnesses and particularly right to cross-examine) and then will elaborate arguments in favor of this position and critically review the arguments against it. [ABSTRACT FROM AUTHOR]

The recent amendment to Law 18.216 completes a silent process of insertion of actuarial technologies of risk prediction of recidivism among offenders. These technologies are closely linked to changes that Anglo-Saxon penal systems have experienced in the past 30 years. This paper aims to explain the origins of these technologies, their content and what are the main problems and challenges that their introduction poses to the penal system. This paper will contrast two types of explanatory speeches of risk paradigm that, while epistemologically different, allow us to have a more complete picture of the analyzed scenario. [ABSTRACT FROM AUTHOR]

Attempts to always avoid the conviction of factually innocent defendants is a task that no criminal proceedings would aim to achieve, it is unfeasible. In fact, criminal systems condemn innocent people, and the Innocence Movement has been responsible –in some countries more than in others– of proving it. This paper proposes, over the basis of the empirical and theoretical information that has emerged from this movement, to analyze in a critical perspective our criminal process and to draw attention to its vulnerability to prevent the conviction of innocents. Along with this, the paper suggests several changes in the different scopes of treatment of evidence, and suggests a review of the adversarial model because, due to its insufficient regulation, its goal of reducing convictions of factually innocent defendants is currently more a problem than a solution. [ABSTRACT FROM AUTHOR]

On the basis of an analysis of categories of cases most commonly related with the criminal and regulatory offence of stock market manipulation (from the perspective of comparative law), the paper provides a characterization and taxonomy of stock-price manipulation in securities markets. The solutions are brought into light through the examination of the economical and financial functions displayed by securities markets, under the assumption that studying manipulation as a socially undesirable behavior (harm) is the one procedure in order to adequately grasp and conceptualize manipulative phenomenon. In this way, the paper illustrates two kinds of manipulative behavior within securities markets, both introducing different degrees of harm: general manipulation and special manipulation. The paper's last section enlarges the characterization of stock-price manipulation as a socially undesirable behavior, on the grounds of the ethos that gives life to the securities system, characterized by the author as meritocratic and community-oriented. The paper concludes by offering some brief and provisional insights from a sanction policy angle, acknowledging that such effort requires a further and deeper research in the matter. [ABSTRACT FROM AUTHOR]

This paper is the second part of an investigation made with the purpose of reviewing the scope of the right of juveniles to be judged by a specialized system in criminal cases in comparison with the prosecution of crimes committed by adults. The project established that there are special standards developed in the subject in international human rights law and also attempted to identify their use in national legislations in several countries. In this context, the specific goal of the paper is to analyze how this right has been introduced and the way in which High Courts have developed their contents in the case law in four countries that have been very influential in the design of the new Chilean juvenile system: Costa Rica, Germany, Spain and The United States of America. For that purpose the paper focuses its analysis in two main axes: strengthening of due process guarantees and aspects of procedural structure. The paper identifies several legal tools developed in the comparative law that allow fulfilling the rights of the juveniles to be judged by a specialized system. [ABSTRACT FROM AUTHOR]

This paper is the third part of an investigation made with the purpose of reviewing the scope of the right of juveniles to be judged by a specialized system in criminal cases in comparison with the prosecution of crimes committed by adults. The project established that there are special standards developed in the trial of juveniles and also attempted to identify their use in national legislations. In this context, the specific goal of the paper is to analyze how this right has been introduced in the Chilean legislation but more specifically the way in which our High Courts have developed their contents in the case law. For those purposes the paper focuses its analysis in three main axes: strengthening of due process guarantees; aspects of procedural structure, and necessity of having a broad policy of diversification of cases. [ABSTRACT FROM AUTHOR]

The paper critically reviews the core aspects of Chilean Act N° 20.393, enacted at the end of 2009, which for the first time in this country introduces a provision on criminal liability of legal entities. After a brief account of the political context that led to this legal innovation in Chile, marked by its need to comply with the requirements to become a full member of OECD, the paper focuses on the liability model chosen by the Chilean legislator - the so called "liability based on organizational fault" model, and its main consequences. Finally, and notwithstanding a general positive opinion of it, the author points at the risks and challenges the Act will face in its enforcement process. [ABSTRACT FROM AUTHOR]

The history of Chilean State and its relationship with indigenous peoples has been marked by inequality and conflicts. This paper critically analyses the relationship between Chilean Criminal Law and the indigenous peoples, describing different perspectives that have perpetuated the denial of a different culture. By means of analyzing case law of different Chilean Criminal Courts, the existence of a model of legal inequality is established, model that doesn't recognize the existence of an indigenous culture, undermining worth to its conflict resolution mechanisms and production of own rules. [ABSTRACT FROM AUTHOR]

The objective of this paper is to improve the knowledge available in Chile regarding to miscarriages of justice by delivering empirical information obtained from cases of wrongful convictions exonerated by the Supreme Court in the context of the work of our adversarial system regulated in the Criminal Procedural Code between years 2007-2013. The research analyses and present the main aspects from the data base of the Supreme Court (470 cases) and the reading of all the decisions of wrongful convictions claims (recursos de revisión) admitted in the period (44 cases). The purpose is to depict those cases according three types of variables: general information; aspects of the wrongful convictions claims; and, causes that explain the wrongful convictions. [ABSTRACT FROM AUTHOR]

The article contains several conference papers presented at the conference "La víctima en el sistema de justicia penal. Una perspectiva jurídica y criminológica," held June 13 and 14, 2013 at the University of Talca, Chile llevado a cabo los días 13 y 14 de junio del año 2013 on topics such as the rights of victims in Chilean criminal law, the status of the victim in Criminal process, and the victim in international criminal law.

What crime recurs with recidivism? This paper analyses the patterns of recidivism among the population sentenced to imprisonment in Chile. For this purpose, subgroups of offenders who specialize in each type of crime are identified. The analysis is based on data of imprisonment between 2007 and 2010 provided by the Chilean Gendarmerie. The results indicate that 65% of the recidivist population will specialize in some criminal category. Three of seventeen possible categories (burglary, theft and nonviolent robbery) concentrate 50% of criminal specialization. There were statistically significant differences in levels of specialization by age and gender of the offender. Finally, the probability that an offender is specialized in one type of criminal category tends to one after his third recidivism. [ABSTRACT FROM AUTHOR]

The purpose of this paper is to set out an articulating principle in the provisions that regulate sentencing on case of repetition of offenses of the same kind, as regulated in Article 351 of the Criminal Procedure Code. The proposed central thesis is that this articulating principle is that of constitutional proportionality, in its strict proportionality aspect. Said principle allows building a model of sentencing that justifies the distinction by the legislator when it restricts this rule's application to just one case of repetition of offenses: those that affect the same legal right. Under this concept, the principle of proportionality works as a limit to the scope of the penalty that will be applied in case of repeated offenses of the same kind, structured in function of correlation between the significance of the disvalued fact's severity (as guardian of the protected legal right) and the penalty associated to it by the legislator. Therefore, the penalty --as an infringement of the convict's fundamental rights-- holds an essential relationship with the severity of the typical fact, which is the magnitude of the sanction's signification of severity as it completes the penal injunction that seeks to prospectively avoid the execution of that felony. Consequently, in this relationship of proportionality the concept of penal legal right will function as the central core of the scale in which counterposed principles to consider are evaluated. Finally, in this order of ideas, the unjust act's main content implied by the repetition phenomenon only contributes marginally to determine the fact's severity; only if the applicable penalty is allowed to oscillate within certain ranges that cannot overcome the aggregate of the materially accumulated penalty. [ABSTRACT FROM AUTHOR]

Eyewitness identification has become more relevant over the past in Chile. Among the measures that have been taken, protocols and a bill have been passed to attempt to regulate identification proceedings. Notwithstanding these initiatives, there is a lack of clarity on the best way to regulate identification proceedings, as well as the standard to evaluate the quality of these and the consequences in a judicial proceeding in case of noncompliance. For this reason, this paper seeks to initiate the development of this issue, proposing, first, that the law should be the mechanism to regulate the topic, and second, that reliability be the standard to evaluate the quality of eyewitness identification. This standard permits a determination of whether the identification was performed under certain conditions that make the conclusion reliable, to then be able to justify judicial decisions. At the same time, this work seeks to determine how the witness that makes the identification can be excluded from the trial when is not reliable. [ABSTRACT FROM AUTHOR]

One of the problems of greatest practical impact, and underserved, is the influence of the victim prohibited behavior in the author responsibility determination. While the affected person seems to have no role in that, doubts begins when it also violates a rule. It is unclear the kind of conflict, how to solve it and what effects it has. From a practical and dogmatic basis the study seeks to answer such questions. Solutions are discussed with a specific proposal, from the normative point of view and attending real events (avoiding hypothetical considerations). From general regulated effects, the paper presents the main national jurisprudential trends and then makes a dogmatic analysis from a specific normative perspective. This test is presented with a known case by the fame of the accused that somehow appears as a guide. [ABSTRACT FROM AUTHOR]

The resort to a legal definition is a legislative technique seldom used in our criminal law, which could be used to achieve greater legal certainty and reduce the possibilities of judicial interpretation. In this paper we analyze the definition of pornographic material whose production have been used of minors under eighteen years to determine if it is a proper technique from a formal perspective and in relation to its content. Previously, we had to review what is meant by legal definition and its most important characteristics. [ABSTRACT FROM AUTHOR]

This paper contains a dogmatic and critical analysis of the crime of storage of pornographic material whose production uses minors under eighteen, regulated in Article 374 bis, paragraph two, second hypothesis, of the Chilean Criminal Code. In its assessment of the criminal behavior, it highlights the systematic and legitimacy problems of the crime's regulation. It concludes that the regulation is useless because in order to respect the principles of a liberal criminal law and the fundamental rights of people, its scope is reduced to marginal cases and little practical relevance. [ABSTRACT FROM AUTHOR]

This article proposes to introduce the analysis of a set of technical rules designed for risk management in the context of the company's business, and that are extremely useful for determining the expectations on corporations regarding the prevention of criminal behavior that may result from their own activity. As defended in this paper, these technical rules will provide the necessary content of crime prevention models or the Compliance Programs that companies must implement according to Article 4 of Law 20.393. [ABSTRACT FROM AUTHOR]

Article 369 quater of the Chilean Penal Code created by Law 20.207 of 2007 amended the way the statute of limitations for crimes against sexual indemnity and liberty of minors is calculated. The following paper seeks to examine the exact juridical nature of said norm, that is, whether or not Article 369 quarter is in fact a circumstance that suspends the statute of limitations, as well as some problems that said norm can create when applied. [ABSTRACT FROM AUTHOR]

This paper analyses prison privatization policies, in particular the empirical results of such policies and the debate surrounding institutional values. The article tackles the cases of Chile and the United States, both countries in which neoliberal economic policies are linked with the expansion of tough criminal policies. With regards to values, the analysis suggests that prison privatization promotes a tainted commercial alliance between the State and private sector, generates a deep conflict of legitimacy and fosters an unsustainable concept of the common good. In terms of results, prison privatization, in all of its forms, has failed to fulfill the promise of relieving States' budgets and providing decent incarceration conditions. Without empirical reasons to sustain prison privatization, the article concludes by highlighting the need of an ideological debate of the values implicated in this manifestation of neoliberal penality. [ABSTRACT FROM AUTHOR]

The doctrine of equivalents and its limitations are a determining element in the balance between the certainty of the protection granted by a patent and the restriction of such protection so far as it is convenient for the community. This balance is at the base of the industrial property system and the tension between its two ends characterizes the legally protected object in the crimes of patent infringement. This paper seeks to show, in the light of comparative law, the relevance of this doctrine for the interpretation of the crimes under Article 52 of Law Nr. 19.039, in particular as regards the terms “patented invention", “patented process" and “imitate an invention patent application pending" when it comes to contrast a patented (or patent application pending) invention or process with an allegedly infringing invention or process. [ABSTRACT FROM AUTHOR]

The paper shows that price agreements between suppliers of consumer goods are not currently punishable in Chile, according to the correct interpretation of the rules that have been invoked to that end, Articles 285 and 473 of the Criminal Code, and the historical evolution of the regulation and punishment of offenses against free competition, today delivered exclusively to the administrative authority and a special court created for that purpose. At the same time, it is shown that the principle that a general law can be applied when the special law is repealed, it can be argued that when previously general law (or the relevant part) has been repealed because it would mean a violation of the guarantee of the principle of legality, which involves the application of existing laws at the time of commission of the offenses. [ABSTRACT FROM AUTHOR]

The paper addresses the question whether (secret) price collusion between providers of goods and services is a crime under Arts. 285 and 286 of Chilean Penal Code. The following reasons lead to the conclusion that these provisions are indeed applicable to many current cases of collusion: on the one side, both the statutory notion of "fraudulent means" and its interpretation by Chilean legal doctrine is broad enough to cover those cases and, on the other side, the "displacement" of the general provisions of Chilean Criminal Code by the special provisions of Law Nr 13.305 of 1959 and DL Nr 211 of 1973 was in any case just transitory. [ABSTRACT FROM AUTHOR]

This discussion paper contains a critique of the establishment of a system of criminal responsibility of legal entities and proposes a restrictive interpretation and application of the law No. 20.393. According to the author, the dilemma of criminal responsibility of legal entities lies in the fact that an option for compromise that allows the legal entity to be considered criminally liable in the strict sense does not exist, since this would mean freeing from responsibility the natural person who represents the organization, or dispensing with the principle of guilt. In effect, if the criminal charge is examined in terms of how it should be understood so that it is possible to impose a punishment on a party that has the characteristics of a legal entity, it is found that such a charge necessarily should be indifferent to the legal status and guilt of its recipient. For this reason, it is deemed that the criminal responsibility of legal entities is a foreign body in Chilean criminal law, which is fundamentally guided by the principle of guilt. [TRANSLATION]

This paper leads the attention to both the need and convenience of implementing international criminal law in the Chilean legal order. To this end it delivers, in a first part, an overview of crimes against international law, followed by both juridical and policy arguments to be considered in the discussion about implementation. Among the legal arguments it develops certain pre-existent obligations of the Chilean State and the general need that appears in civil law countries to implement international criminal provisions in their internal legal order to make them applicable following the mandate to fully describe though a law both the criminal behaviours and their punishment. A third part is dedicated to the different forms of implementation existent to date in different States, both relating how to implement and where to implement. This part seeks to give the reader some guidance on the different options available in this respect. [ABSTRACT FROM AUTHOR]

The new Penal Code Bill in Chile initiated a public and parliamentary debate regarding which social conflicts should be punished and which should be excluded from the criminal system. The struggle to impose a particular discourse on criminality is a critical issue under the current criminal-political setting. This paper discusses the discriminatory liberal criminal model which, on the one hand, legitimizes the enforcement of the criminal system over underprivileged classes and on the other, displaces specific social conflicts by means of the powerful classes' exclusion discourse. [ABSTRACT FROM AUTHOR]