Project Title
La creación de riesgo no permitido como solución normativa causal en la causalidad difusa y alternativa en el ámbito sanitario: una propuesta para el sistema chileno
Partner Organisations
Internal ID
11190188
Principal Investigator
Type
basic research
Start Date
January 11, 2019
End Date
October 31, 2022

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    La vinculación entre el concepto y la prueba del daño moral
    (2023)
    Cristián Aedo Barrena
    ;
    MUNITA MARAMBIO, RENZO ESTEBAN  
    The analysis of moral damages must lead us to reflect upon the boundaries of such a concept, either from a subjective or an objective standpoint. In the case of the first approach, the specialized literature has understood moral damages, in general, under the idea of non-pecuniary disturbances on goods, things or rights. While, in the case of the second, efforts have been focused on analyzing the infringement of certain interests, which is actually the standpoint we defend here. Additionally, it should be noted that the respective conceptual approach has major implications on the evidentiary standard when it comes to proving moral damages, as well as it also impacts on the quantification of torts. Accordingly, subjective moral damages imply a more relaxed standard, while objective moral damages (or those anchored to interests) call for a stricter one. Although these two aspects can be distinguished according to the corresponding sphere, whether it be contractual or non-contractual, they remain limited in the former mainly because of its own legal regime, which requires identifying a protected interest within the scope of a contract.
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    Some problems raised by the theory of the equivalence of conditions and the theory of adequate causation in civil liability
    (2023)
    Cristian Aedo Barrena
    ;
    MUNITA MARAMBIO, RENZO ESTEBAN  
    <jats:p>In this work we intend to highlight some questionings regarding the application of the theory of the equivalence of the conditions as well as the theory of adequate causation in the resolution of complex causal issues. Said complex issues involve factual characteristics that do not allow determining harmful effects for later qualifying them as damages (at least from a sensible sense of justice). Regarding the first theory, it is stated that since there are damages whose origin can only be attributed to omissions, the causal approach of mental suppression loses relevance; The same thing happens in contexts of alternative or hypothetical causation, in which it is essential to resort to statutory criteria to respond to these complex issues. Regarding the latter theory, it is argued that it reveals complexities, mainly its connection with foreseeability, which can be seen both in the context of the an debeatur and of quantum respondentur, which are part of the stages of any liability judgment. This occurs when determining the scope of those who are deemed liable. In this latter case the distinction between adequate causation and negligence is not really appreciated; the same occurs in the determination of damages; if this latter theory were followed, the principle of comprehensive damage provided for by our legal system would be violated, at least for non-contractual liability, in accordance with the provisions of article 2329 of the Civil Code (CC).</jats:p>
    Scopus© Citations 1  1