vol. 18 núm. 24 (2016)

Introduction: Current analysis of the legal basis for the frequent de facto marriages and both the origin of these practices and their implications for the legal system supposes delving into a rather unknown area, bearing in mind that we are living in a time of possible crisis for the traditional family. Methodology: For this reason, we will investigate how the absence of basic assumptions—especially legal capacity, or conubium—inflenced extramarital relationships. We will also investigate what was, in short, the raison d’être of the prohibitions of the designation on the part of classical Rome of legitimate marriage as iustum matrimonium. Results: We defend six criteria for grouping together the large number of extramarital unions that followed, highlighting: concubinage; cohabitation; homosexuality; incestuous marriage, sham marriage, and marriage between absent parties; unions with parties who lacked the physical capacity for marriage; adultery; and prostitution.  Conclusions: We conclude with a brief mention of the ideological inflence of the emperors, Christianity, and regulations on intersexual and third gender relationships, recently approved in Europe

Introduction: In recent years, we have witnessed a process of institutionalization and formalization of culture in the country through the adoption of cultural rights, consolidation of cultural legislation, and creation of the Ministry and secretaries of culture, among other factors. At the same time, we have witnessed major transformations at the level of discourse, such as the notions of cultural development and cultural pluralism that are centrally promoted by unesco. Methodology: To describe the national and international context of policies on culture and examine the general framework of cultural policies in the department of Santander (Colombia), detailing the various programs that form the core cultural strategies and analyzing indicators of each strategy. Result: We have demonstrated changes in the filds of communications and the economy, where culture has begun to take on a central role in gdp, though it is yet to have signifiant importance in the policies of our governments. Conclusions: Th diffilty of grasping the cultural dimension—which vacillates between the artistic and anthropological spheres—generates imprecision in programs and diffilty in the conception ofthe link between culture, development, and democracy.

Introduction: Starting with the research problem, a doctrinal study was carried out to explain the regulation and evolution of the Colombian legal system, as well as its requirements, in order to achieve better understanding of innominate interim measures. Methodology: With statistical analysis of disciplinary proceedings against lawyers—in contrast to the number of graduates in law and related filds—the study seeks to demonstrate the moral crisis of lawyers in Colombia.  Results: Thre is a warning that this moral crisis could weaken extrajudicial conciliation as a procedural requirement within civil procedure. In this article, basic concepts such as the request, order, and implementation of an interim measure are studied. Similarly, the apparent diffrence between each of these procedural stages is explained, as their understanding leads to ready comprehension of the existing procedural diffilty. Conclusions: Based on the fidings presented, an amendment is proposed to the fist paragraph of Article 590 of Law 1564 of 2012, which allows any misuse of innominate interim measures to be countered when complying with extrajudicial conciliation as a procedural requirement.

Topic and Scope: Ths article is the result of the investigation “Effctiveness of Action for Recovery on the Territorial Entities of the Amazon Region of Colombia from 2001 to 2008.” Ths investigation was carried out for the completion of a Master of Administrative Law degree from the Universidad Libre, aiming to establish how Colombian case law has treated the legal concept of actions for recovery and impleaders for the purposes of recovery. Methodology: Th method consisted of a review of literature and pronouncements related to these mechanisms made by the main courts of the country until 2009. Findings: Th results of the analysis allowed the specifiation of their legal nature, concepts connected to their operation, characteristics, and purposes, among other aspects that will lead to better understanding of the legal concept. Conclusions: It was thus concluded that actions for recovery and impleaders for the purposes of recovery are an important mechanism to ensure that public entities recover those disbursements resulting from sentences and other mechanisms of conflct resolution, as case law has facilitated this task through legal tools adopted by the legislature for that purpose.

Introduction: Ths article is the result of research carried out by the research incubator of Procedural Law of the Bucaramanga Campus of the Universidad Cooperativa de Colombia (ucc). Methodology: Analysis of certain aspects of the new small claims procedure for declaratory judgment, which the General Procedure Code (cgp by its Spanish initials) successfully introduced into the legal system. Thse aspects are related to type, good faith of the creditor, exhaustion of procedural requirements, and propriety of interim measures. The analysis was performed pursuant to Articles 419 to 421 and 590 of the cgp, Law 640 of 2001, Decision C-726 of 2014 of the Constitutional Court of Colombia, and Calamandrei’s theory on small claims procedure. Results: Th legislature has shown the same procedural treatment to both pure and documentary small claims procedure, contrary to Calamandrei’s theory; the admission of pure small claims procedure implies that the judge supports the requirement of good faith payment to the creditor. In accordance with the norms onpre-trial conciliation, to initiate a small claims procedure classifid as special declaratory, the plaintif must prove compliance with the procedural requirements, that is, provide proof of having exhausted the attempt at conciliation. However, the plaintif may substitute this with the request for and, logically, with the propriety of an interim measure, for which security must be furnished. Conclusions: In small claims procedure, the plaintif must provide proof of having exhausted procedural requirements. Finding an innominate measure in the context of small claims procedure with a view to guaranteeing the effctiveness of the right to credence will be a diffilt task.

Introduction: Ths article discusses the concept of greater right, which has taken hold in academic research. Steeped in complexity that proves intriguing for researchers, this concept invites reflction on the best way to understand the ancestral worldview and ordering concepts of reality of the Misak community.  Methodology: Th research that culminated in this article was participatory action research (par), in which the Misak community had direct participation in the production of concrete knowledge about their reality. Results: Th research yielded the generation of new knowledge about the indigenous conception of greater right, which is based on harmony and the principles of correspondence and complementarity. Conclusion: Th article provides insight into basic issues of Misak thought through understanding of greater right, utilizing the guiding principles of Andean cosmology to create a cosmological portrait of the Misak communit

Purpose: To determine if malfeasance is possible when what has been called judicial precedent by the Constitutional Court of Colombia is not abided by.  Methodology: Ths article analyzes the existing norms of judicial precedent and, on this basis, whether it is lawful to try a public servant for malfeasance for departing from the doctrine of the high courts. Viewpoint: Judicial precedent, or judicial legislation, is not legitimate law in Colombia; therefore, no malfeasance is committed when a judge departs from the rulings of the high courts. Conclusions: According to the principle of legality and through induction, it is possible to demonstrate that the Constitutional Court lacks the functional competence to legislate, and its doing so constitutes malfeasance. Failure to give binding force to the doctrine of the high courts does not constitute malfeasance, as has been affied by the Constitutional Court of Colombia.

Introduction: Th central theme of this research article is the implementation of conventionality control exercised by the Inter-American Court of Human Rights and its reception by judges, judicial offials, and public authorities. Other core topics include the implementation of guarantees of innominate rights, and the creation of judicial activism through the right to education as a local jurisdictional matter within the American member countries, as well as how these member countries have lashed out in serious collective violation. Methodology: In order to analyze these issues, it is necessary to place them in the context of Mexican and Colombian law to demonstrate the necessary role of these legalsystems in the determination of the issues’ origin and causes, which include: 1) the transition from a block of constitutionality to a block of conventionality; 2) the internationalization of human rights; 3) the conventionalization of law; 4) transjudicial communication on precedent; and 5) innominate rights. Results: All of the above is a result of the open-textured norms of the American Declaration and American Convention on Human Rights, as well as a strong commitment to international human rights law. Conclusions: A hermeneutical interpretation of inter partes cases and their effcts on sentencing for the American countries is needed.  

When hostilities reach a conclusion —whether or not they were part of a formal armed conflct—, the parties must be held accountable for their actions. The belief is almost universally held, regardless of one’s moral or ethical convictions. However, the details of this responsibility are highly controversial and disputed. In the second section of this short article, a legal basis for post-war justice is provided that appeals to the anti-impunity norm. It is then concluded that criminal proceedings uphold the anti-impunity norm better than non-criminal mechanisms. In light of this conclusion, the third section poses the following questions:How do we achieve post-war justice? Who should be brought to trial: leaders or soldiers? Should they be tried in national or international courts? What should they be charged with: national or international crimes? What procedures should be followed in the trials and how? Finally, why should they be punished?

A partir del problema de investigación, en primer lugar y para una mejor comprensión sobre lo que es medida cautelar innominada, se hace un estudio doctrinario para explicar la regulación y evolución dentro del sistema normativo colombiano, así como sus requisitos; posteriormente, a partir de un análisis estadístico sobre procesos disciplinarios contra abogados, en contraste con la cantidad de egresados en derecho y afines, se pretende evidenciar la crisis en que está la moral de los abogados en Colombia. Seguidamente, se advierte cómo dicha crisis moral podría llegar a debilitar la conciliación extrajudicial como requisito de procedibilidad dentro del proceso civil. En este capítulo, se estudian conceptos básicos como lo son: solicitud, decreto, y practica de una medida cautelar. De igual manera, se explica la evidente diferencia entre cada una de dichas etapas procesales, ya que a partir de esto, se comprende fácilmente la dificultad procesal existente. De igual manera, a partir de los hallazgos evidenciados se propone una reforma al parágrafo primero del artículo 590 de la ley 1564 de 2012, que permita contrarrestar cualquier  uso inadecuado de medidas cautelares innominadas a la hora de cumplir con la conciliación extrajudicial como requisito de procedibilidad. Por último, se propone un modelo heurístico, a partir del cual se pueda reconstruir la moral del abogado en Colombia, desde el contexto social, religioso, político y familiar, que conlleve en ultimas al logro de una justicia más justa, de una paz verdadera, y por supuesto, al logro del bienestar de todos los individuos.