Anuario de Derecho

Editorial

Arelys Eliana Ureña C. — Wed, 24 Apr 2024 00:00:00 +0000

The Closing of the School of the Americas in Panama

Oscar Vargas Velarde — Wed, 24 Apr 2024 00:00:00 +0000

El Tratado del Canal de Panamá, celebrado por Omar Torrijos, jefe de Gobierno de Panamá y Jimmy Carter, presidente de los Estados Unidos de América, cuyo propósito fue desmontar el enclave colonial en el Istmo de Panamá, entregar el Canal al legítimo dueño del territorio y retirar las bases militares estadounidenses de Panamá, estipuló que a los cinco años de la entrada en vigencia este tratado, los Estados Unidos pondrían fin a la Escuela de las Américas en Panamá, institución que había operado por varias décadas en la Zona del Canal, entrenando a las fuerzas militares latinoamericanas, actividad repudiada por los pueblos de la región, en virtud de la actitud golpista y represiva de tales fuerzas en muchos países. En 1984 debía concluir tal Escuela, pero el general Manuel Antonio Noriega, comandante en jefe de las Fuerzas de Defensa de Panamá y el general Paul Gorman, jefe del Comando Sur, celebraron un acuerdo para que la institución siguiera funcionando en nuestro país, con otra denominación. A esta situación complicada se enfrentó el presidente Jorge E. Illueca, con el propósito de impedir que los Tratados Torrijos-Carter fueran burlados. Su actitud firme y decidida logró imponerse a todo tipo de presiones internas y externas, de tal forma que el mandatario recibió el 1.º de octubre de 1984, en representación de la República de Panamá, todas las instalaciones donde funcionaba hasta el día anterior dicha Escuela de las Américas, que cerró definitivamente sus operaciones en el territorio nacional.

Terrorism and limitations of international humanitarian law

Erasmo Elías Muñoz Marín — Wed, 24 Apr 2024 00:00:00 +0000

Since the end of the 18th century and the middle of the 19th century, instruments of international law were developed that aimed to make war less cruel or, even though it sounds counterproductive, to humanize war, with the signing of the San Francisco charter, and the birth of The United Nations among its main contributions is the banning of war, but even in the face of this, the International Committee of the Red Cross (ICRC), elaborated the 4 Geneva Conventions of 1949 that later in 1977 their additional protocols were annexed. Prohibiting war was not going to stop the ambition of the States, and understanding this, a whole regulatory framework is created that has the purpose of complying with certain rules in the midst of conflicts. But the classic concept, reached by the Geneva Conventions and developed for centuries about who is a combatant and who is a belligerent in the middle of a conflict, has been changing throughout the 19th century, clear examples such as the Basque group ETA in Spain, terrorist group that caused great damage, such as the Irish Republican Army IRA, which faced the British crown in search of its independence, through the use of unconventional actions, or the Tupamaro in Uruguay, who carried out acts of the same firm considered terrorist against the established power. But it is not until the attacks on the World Trade Center on September 11, 2001, that a new paradigm emerges by virtue of the attacks recognized by the terrorist group Al Qaeda, commanded by Osama Bin Laden, which introduced a new actor, who used unconventional actions and where the objective was not only state infrastructures but also to provoke the greatest possible terror, to the point of changing our way of living, introducing a series of regulations, and starting the war against an invisible enemy, the war on terrorism.

New Perspective on Abuse of Law

Julio Lombardo — Wed, 24 Apr 2024 00:00:00 +0000

This work contemplates a new perspective about the undue exercise of the right, in order to obtain specific parameters and, with an objective direction, to ease the configuration of the elements of that one. Such elements regardless of its consequences, are: overreach in the exercise of the right and harm to a legitimate interest.

The impact of Artificial Intelligence on Criminal Law

Plinio Hernández — Wed, 24 Apr 2024 00:00:00 +0000

We cannot rest it adapting to the digital age that has caused 360-degree changes in our live, one of those changes is artificial intelligence in the digital age applied to many areas, to mention our example in medicines where there are robotic surgeries. The law does not escape from that reality. That is why my article seeks to interpret how artificial intelligence can positively impact criminal law by offering us information and toold to improve criminal justice in a ethical manner, respecting Fundamental Guarantees and Human Rights.

Competition Law: From the Liberal State to the Social State.

Alex Reyes Gutierrez — Wed, 24 Apr 2024 00:00:00 +0000

We have that it is Liberalism that based the codifications on the ideological and socio-economic assumptions of the 19th century undergo important changes that make the State assume a different position before the market economy. There is an abandonment of natural law that will lead to the positivism of State Law. Values ??such as freedom and equality will not come to be presented spontaneously but will become a must. The realization of justice will be sought through Private Law, which should not be limited when developing individual activity, a certain material equality through the Social State, which represents a split between the State and society. We will carry out an approach where liberal capitalism is replaced by neocapitalism, which is characterized by the intervention of the State in the pursuit of a different economic policy. Undoubtedly, this historical conjuncture creates a mood of tension and uncertainty in principle between the business sector and the powers in such a way that, in States with this vision of social State, the Constitution consecrates the social function of property, which will come to represent that in the same way the social function of business activity is promoted. Among the conclusions and for the purpose of this study, it is intended to subject the social interests over the private interests of the Private Law of the "autonomy of the Will", to seek the benefit of the interests of the whole society.

The Digitalization of State Services Brief Analysis of the Panamanian Experience

Rubén E. Rodríguez Samudio — Wed, 24 Apr 2024 00:00:00 +0000

Digital government and justice systems constitute two fundamental pillars of smart societies. Therefore, ample funding is dedicated to modernizing these services to expedite public administration. However, Economic investments are not enough; thus, digitalization also requires legal reforms.

Panama is no exception to this phenomenon, and since the mid-90s, our country has invested in the required infrastructure to utilize ITC in public services. Since 2000, multiple legal reforms have adapted judicial and public administration to this new reality. This paper analyzes Panama’s digital and government experience from a comparative law standpoint

The Accusatory Criminal System versus Judicial Delay

Luis G. Peñalba R. , Mónica A. Carrión. — Wed, 24 Apr 2024 00:00:00 +0000

In this research, a series of objectives are proposed; The main one is to determine if the Accusatory Criminal System (SPA) has eradicated the Judicial Delay, in the Province of Veraguas. To achieve this objective, a survey was applied to those who have the hard work of implementing and applying the principles and rules of this new system of criminal prosecution. This research is analytical and descriptive and non-experimental, with a sample of 40 participants including: judges, prosecutors, private lawyers from the Province of Veraguas, professors from the Faculty of Law and Political Sciences of the Regional University Center of Veraguas. The implementation of the SPA has eradicated judicial delay in the Province of Veraguas, therefore, it has been a guarantee of human rights, prompt justice, and individual freedom. However, it should be noted that it has not been removed.

Effective Judicial Protection of Social Rights in Panama

Brenda Elizabeth Vega Atencio — Wed, 24 Apr 2024 00:00:00 +0000

The Panamanian reality presented in this research may be very similar to that of some Latin American countries, which do not have effective judicial protection of their social rights. From a critical perspective, we analyze the lack of effective judicial protection of social rights protected by the Panamanian constitution, and the constitutional resources available to the State to protect individual rights, in order to then support the importance of the implementation of constitutional actions such as amparo, to protect individual homogeneous or collective rights, such as social rights. It is necessary to define minimum and maximum standards applicable to social rights, without leaving the criteria for protection to the discretion of the executive and legislative powers.

It is necessary to make the scope of the Amparo action more flexible, through a jurisprudential construction, which collectively protects social rights in Panama.

The decentralization of environmental management from the legal framework of Panama

Vanessa Campos Alvarado — Wed, 24 Apr 2024 00:00:00 +0000

The territorial extension of the State can become an obstacle to better control of environmental preservation, as well as delays in the distribution of resources to meet these objectives. Likewise, the total dependence on a central government awaiting decisions that, by granting jurisdiction to regional and local authorities, could contribute to providing a better agile and equitable response, are some of the arguments that justify the practice of decentralization of environmental management. added to greater participation of civil society actors from the directly affected territory in the search for answers to environmental problems. The above merits a model to modernize public administration such as decentralization.

Blockchain and Civil Law

David Ellister Zamora S. — Wed, 24 Apr 2024 00:00:00 +0000

No tiene resumen.

The role of the resident agent. A look at its metamorphosis.

Cesibel Del Carmen Jiménez Muñoz — Wed, 24 Apr 2024 00:00:00 +0000

On several occasions, the severity of the panamanian legal system has been questioned. However, such criticisms resonate with a strident voice when they address tax issues, corporations, transparency and international cooperation in the exchange of information, for example. Such questions are decisive for organizations such as the Financial Action Task Force (FATF) to assess our performance and propose recommendations.

We have had consequences from this that affect our reputation and the development of the economic and financial sector; which means that we have to make adjustments that make the legislation more robust around certain activities, among which is, as expected, that of the resident agent as a visible face when it comes to public limited companies.

It is our objective to offer a brief account of the construction of this figure, starting from Law 32 of February 26, 1927, on public limited companies until Law 254 of November 11, 2021 with important adjustments in terms of international tax transparency and prevention of money laundering, the financing of terrorism and the financing of the proliferation of weapons of mass destruction.

Importance of Classification Societies in Maritime Traffic

Oziel De Gracia — Wed, 24 Apr 2024 00:00:00 +0000

What is sought through this article is to make known the regulations that govern fishing in Panama, as well as the authorities that supervise the entire subject of fishing in Panama.

International sources of private international law. International treaties and their scope of application

Francisco Fanol Flores Villa — Wed, 24 Apr 2024 00:00:00 +0000

This paper deals, inside the field of sources of private international law, with the concept of treaty and the context in which the provisions of an international agreement can be applied to a private international law’s case. Reference will be made to the 1969 Vienna Convention on the Law of Treaties, the Private International Law Code of the Republic of Panama (Law 61/2015) and other Panamanians and international legal documents.

Legal advances on the obtaining of plant varieties.

Jorge Luis García G. — Wed, 24 Apr 2024 00:00:00 +0000

Plant variety rights can be defined as the protection granted to those who develop a new plant variety through plant breeding and the application of scientific knowledge. The beneficiary of this protection is referred to as the breeder, and among the rights obtained, they have the right to prevent third parties from performing certain acts related to the production, reproduction, preparation for reproductive purposes, multiplication, or propagation, among others, of the new plant variety they have developed. To enforce these rights, they receive a certification that allows them to take legal action against those who violate their rights. This protection has a duration of between 15 and 25 years, depending on whether it pertains to forest trees, fruit trees, or other species. This new plant variety must have a distinct generic name, and for intellectual property rights to provide protection as mentioned, the plant variety must meet certain requirements, such as being new, distinct, uniform, and stable.

Control De Convencionalidad Difuso En Los Fallos Indígenas En Los Tribunales Panameños

Aresio Valiente López — Wed, 24 Apr 2024 00:00:00 +0000

Los Estados en virtud de la libre determinación de los pueblos ratifican los Tratados internacionales, a fin de cumplir de buena fe y sobre todo en virtud del principio de Pacta Sunt Servanda. Los Tribunales panameños y las entidades administrativas, están obligados a cumplidos con los Tratados que el Estado ratifica, a través de la institución de Control de Convencionalidad Difuso.

El Control de Convencionalidad Difuso es un mecanismo que tiene como finalidad que los Estados, a través de sus entidades locales en base a sus competencias, llámense Órgano Legislativa, Órgano Ejecutivo y Órgano Judicial, hagan realidad los compromisos adquiridos en los Tratados internacionales.

Las altas Tribunales de justicia de Panamá poco a poco han estado incorporando el Control de Convencionalidad Difuso, incluyendo en los procesos judiciales en las que una de las partes son pueblos indígenas.

About the Trust Regime Panamanian Testamentary

Lidia Mercado — Wed, 24 Apr 2024 00:00:00 +0000

The "trust" constitutes a juridical mechanism for the disposal and protection of assets useful to simplify the way in which a subject organizes the assets and, above all, to avoid family disputes over inheritance or creditors. The asset protection achieved through this figure consists of “separating” personal wealth or assets and dedicating a portion of assets to achieving a specific purpose. Consequently, it is about separating personal assets from the so-called trust assets so that the latter cannot be judicially pursued. The figure under examination will be approached from the perspective of continental law's legal culture to identify its characteristics in Panamanian law and differentiate it from the Anglo-Saxon trust. However, it is certainly recognized that in its origins and evolution, it is a figure inspired or derived from the Anglo-American trust, but adapted to civil law regulations.

Proceso de Sucesión Agraria y su comparación con la Sucesión Civil

Ibeth Vanesa Muñoz Almanza — Wed, 24 Apr 2024 00:00:00 +0000

The concept of succession in private law is well-known among jurists. Agricultural succession, on the other hand, is introduced for the first time in Law 55 of 2011, better known as the Agricultural Code, and is an institution of a novel nature. In practice, this concept is largely unfamiliar. This has gradually led to the civil jurisdiction falling behind and becoming congested, as it must assume jurisdiction in those areas where specialized tribunals do not exist.

Now, considering that agricultural matters are governed by specific principles and rules, this work aims to present and emphasize that the purpose of the legal norm in the context of agricultural succession is to prevent property fragmentation, not because it is impossible, but because its purpose is the preservation, protection, and continuity of agricultural activity for its sustainable development.

The electronic invoice in Panama

Gavid J. Díaz Branca — Wed, 24 Apr 2024 00:00:00 +0000

Undoubtedly, electronic invoicing is here to stay and within a very short time it will be a system that every natural or legal person must implement to support their transactions for the marketing of goods or the provision of services.

The thematic axis of this article is the electronic invoice in our country from a legal perspective in Panamanian law, with the purpose of examining its historical evolution in the region, the process used to request this type of billing, determining the figures that it converge, their regulation and their particularities.

State’s Organs in Charge Of International Relations.

Emanuel Castro — Wed, 24 Apr 2024 00:00:00 +0000

On this occasion we will discuss what concerns the State Bodies those in charge of International Relations, in which systematically explain the division of these, namely: Internal Organs and International Organs. Where the Internal Organs correspond or fall in terms of their representativeness to the Head of State or Head of Government and to the Minister of Foreign Affairs, while the International Organs comprise the Diplomatic Missions and the Consular Offices.

Second chances

Reina E. Outten Barría — Wed, 24 Apr 2024 00:00:00 +0000

The adoption of legal age persons did not have greater requirements than the legal limitations to proceed with the declaration of parentage by adoption. Subsequently, Law 61 of August 12, 2008, known as the General Law of Adoptions of the Republic of Panama, was created, limiting the term for adoptions of legal age persons to a minimum of two (2) years, after the adoptee reaches the age of majority. Then, the law was reformed, being substituted, in some articles, by Law 46 of July 17, 2013, which in its article 128, numeral 4, provided the time limit of two (2) years to request an adoption of an adult. Currently, by a decision of July 7, 2023, the Plenary of the Supreme Court of Justice declared that numeral 4 of article 128 of the General Law of Adoptions was unconstitutional.

Foundation of the concept of crime victim, typologies and their participation in the development of alternative procedures for solving criminal conflict

Joel De León — Wed, 24 Apr 2024 00:00:00 +0000

The victim of a crime, beyond being understood as a simple passive subject of the criminal type or the person on which the criminal action is executed or suffers from the negative

consequences of the action itself, on its assets or rights; possesses typologies that may vary depending on the analysis derived from the objective and subjective dimensions of the different victimization process. The participation of the victim in the crime, their risk and vulnerability contribute to define the types of victims. Diverse disciplines of the academic chores, Criminology, Human Rights, Criminal Law and Process Law acknowledge the autonomy and interdisciplinarity that this process subject has and that results to be necessary for the definition of the criminal policy of all States. This article, quoting the valid legislation, allows the understanding not only of the victim´s rights, but also its process participation in the development of the alternative procedures of solution of the criminal conflict.

The importance of Environmental Arbitration in relations between States in International Law.

María Mercedes Alverola Delgado — Wed, 24 Apr 2024 00:00:00 +0000

El Derecho Internacional Público como disciplina, busca la regulación de las relaciones entre los Estados, basándose, en distintos principios como lo es, el de soberanía. Para ello, se han suscrito diferentes instrumentos internacionales, siendo uno de los principales el Convenio de Viena sobre el Derecho de Los Tratados. Por lo que, en materia ambiental, no es la excepción, naciendo a la vida jurídica el Convenio sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestre (CITES), el cual es vinculante para los países que forman parte; y que, ante el incumplimiento, el conflicto que de ello surja se dirimirá ante la Corte Permanente de Arbitraje.

The previous procedures for larger contracts in Panama and the means of defense in the governmental way

Abner Alberto Palacios Selles — Wed, 24 Apr 2024 00:00:00 +0000

Public tender, applicable for the generality of administrative contracts, with amounts greater than B/50,000,00 and the award is made to the bidder offering the lowest price. For best value, viable when the amount exceeds B/500,00.00, there is complexity in the contractual object and it is awarded to the highest weighted.

Framework agreement, used for passive use goods or services for the public sector.

Auction in reserve, applicable to obtain the best price for the state, through the bidding and rejection mechanism. Public auction, by the same procedure, to obtain the highest price in sales or lease of public goods.

Action of claim, before the general directorate of public procurement, against the acts prior to the award, desertion or cancellation.