Ius et Praxis

Presentación

Ronald Cárdenas Krenz — Mon, 03 Feb 2025 00:00:00 -0500

Entrevista con María Ángeles Egúsquiza Balmaseda: Desafíos y soluciones en la protección de datos para consumidores de salud

María Ángeles Egúsquiza Balmaseda — Mon, 03 Feb 2025 00:00:00 -0500

Health insurance of people with down syndrome. Comments on casement 7225-2022 Lima. The confusing boundaries between freedom of contract and consumer protection

Americo Hidalgo Gómez , César R. Pérez Gil — Mon, 03 Feb 2025 00:00:00 -0500

This article critically analyzes cassation ruling 7225-2022-Lima, which sanctioned an insurance company for refusing to provide health insurance to a person with Down syndrome. The authors also examine the conceptual errors in the judicial decision and its potential impacts on the Peruvian insurance market. According to the analysis, the ruling increases the obligations of insurance companies without considering that the additional costs will be passed on to consumers, thereby affecting access to insurance and health services. Additionally, it is highlighted that the case was resolved within a limited regulatory framework, which posed challenges in applying constitutional principles, such as non-discrimination, in contrast to freedom of contract. Finally, the authors propose that state intervention in public policies must be clear and avoid shifting its responsibilities to private actors in order to ensure proportionality between individual and business rights.

Conflicts in marketplaces: liability of digital platforms in modern consumer relationships

Alonso Morales Acosta — Mon, 03 Feb 2025 00:00:00 -0500

This paper analyzes issues in consumer relationships within marketplaces or two-sided digital platforms, focusing on the liability regime applicable to platform owners in relation to consumers. First, the concept of a two-sided digital platform, its characteristics, and the externalities generated in this type of market are defined. The consumer relationships between the consumer, the establishment hosted on the platform, and the platform owner are examined. Then, the most common problems for consumers, such as product defects, fraud, and service non-compliance, are addressed. Finally, guidelines are provided to determine the liability of the platform owner, including cases in which joint and several liability with the establishment would be appropriate, and it is concluded that the validity of the limitation of liability depends on the consumer’s expectations and the degree of the platform’s involvement in the consumer contract.

Statute of limitations and expiration in health sanctioning procedures

Frank García Ascencios — Mon, 03 Feb 2025 00:00:00 -0500

The public administration does not have the power to instruct and sanction for an infinite time. This is a constitutional and legal guarantee. The statute of limitations and administrative expiration are legal figures regulated in sanctioning procedures. The authority analyzes the former to determine administrative liability. The second, as the maximum duration of the sanctioning procedure. The National Superintendence of Health Insurance (Susalud) has the sanctioning power to repress any action or omission of the Health Insurance Fund Management Institutions, Health Service Provider Institutions (IPRESS) and IPRESS Management Units, which affect the right to health of consumers and users of health services. The article develops from a doctrinal and practices cases, the prescription and expiration of Susalud’s sanctioning procedures.

Asymmetric information: reflections on misleading advertising

Fabiana Sevillano Ono, Valentino Mamani Escajadillo — Mon, 03 Feb 2025 00:00:00 -0500

Misleading advertising is not only an act of unfair competition but also a violation of consumer rights, undermining trust in the marketplace. By disseminating incomplete or inaccurate information, whether to influence purchasing decisions, conceal product defects, or as part of a broader commercial strategy, businesses generate uncertainty and place consumers at a clear disadvantage. This article examines the impact of misleading advertising on the business-consumer relationship through an analysis of significant national cases. The study adopts two essential legal frameworks: the theory of legal act in Civil Law, which addresses the validity and enforceability of contracts formed under misleading or insufficient information, and the offense of fraud in Criminal Law, which sanctions such practices when they constitute criminal deception. Both approaches highlight how these actions breach the duty to provide clear, accurate information and the obligation to ensure product quality, ultimately violating fundamental consumer protection laws.

AI washing: a new form of consumer deception

Malena Cárdenas Tello , Natalia Avalos Espinoza — Mon, 03 Feb 2025 00:00:00 -0500

The article will begin by developing the concept of AI washing, for which this strategy—mostly used in the marketing sector—will be analyzed. Companies often employ AI washing to make their products appear more attractive or offer better benefits compared to others, capitalizing on the influence of new technologies in the market. Once we understand how this practice works, we will analyze why this strategy can become misleading and create a competitive advantage over other providers in the market. Based on this premise, we will review the negative impacts this practice has on consumers, as well as discuss emerging global regulations, which result from efforts by countries to curb this trend. Finally, we will attempt to answer the question: Is it necessary to regulate AI washing in Peru?

Technology for the care of people with disabilities: forming consumer relationships

Próspero Martín Cortez — Mon, 03 Feb 2025 00:00:00 -0500

Consumer protection regulations assume that a reasonable consumer will choose a suitable product or service, based on the relevant information received for their purchase; and, only if the supplier fails him, the law will protect him. However, what happens to people with sensory disabilities (deaf, blind and/or mute people) who cannot receive information like the majority, even if the provider complies with transferring information through traditional channels (advertising, brochures, messages, calls, face-to-face speeches). If they comply with the current regulation, and if they prove that they did not fail, the law will not protect people with sensory disabilities, making them responsible for buying wrong. Therefore, it is the purpose of this article to provide technological solutions that allow overcoming the problem that people with sensory disabilities have to receive relevant information and thus be able to contract products and/or services according to their interests (ideal).

Banking compensation practices: consumer protection perspective

Ursula Patroni Vizquerra, Juan Sebastián Muñoz Valderrama — Mon, 03 Feb 2025 00:00:00 -0500

The following article addresses the bilateral compensation in regard to its application to the banking services. Specifically, it contains an analysis of the decisions issued during the discussions that took place before the administrative authorities in charge of the consumers legislation and before the courts in which the lawsuit against the previously mentioned authority was filed in order to obtain an annulment ruling. The final decision states that the bilateral compensation, as agreed on the terms and conditions of the banking institutions, does not entail a lack of adequacy of the services rendered by financial institutions. That conclusion is reached, when it is established, that the bilateral compensation is governed by rules different from the unilateral compensation. Also, that the terms and conditions as agreed between the banking institutions and consumers, can perfectly uphold the legislation regarding the bilateral compensation, therefore there is not a violation of consumers’ rights.

The right to essential medicines: balancing health and the market

Mon, 03 Feb 2025 00:00:00 -0500

The intersection between the fundamental right to health and commercial dynamics in the Colombian context is examined, focusing on the legislative and judicial evolution that has strengthened this right since its constitutional enshrinement. Through a hermeneutic-interpretive approach, pharmaceutical policies and international treaties are analyzed, illustrated with case studies such as the conflict with Novartis over Imatinib. The influence of neoliberalism on the privatization of health services is questioned, and the flexibility of regulations, such as compulsory licenses, is suggested to promote equitable access to essential medicines, reconciling intellectual property rights with universal access to health within the framework of a Social State governed by the rule of law.

Limits of legislative authority: the secular state in Ecuador

Doménico Carrillo Abad — Mon, 03 Feb 2025 00:00:00 -0500

This paper will analyze the meaning of the concept of secular state in the context of the Ecuadorian legal system, with the purpose of examining its relevance and practical application within it. For this purpose, a concrete case related to the legislative authorities of Ecuador will be taken as a starting point, which will allow identifying and reflecting on key questions about this principle. The analysis will consider the historical circumstances that have shaped its interpretation in the country, as well as the currents of legal thought that influence its application. From this study, it will seek to draw relevant lessons about the secular state as a fundamental limit for the actions of the legislative authorities, highlighting its importance in the consolidation of a democratic, pluralistic and respectful of diversity state. This approach will allow a better understanding of the role of the secular state in strengthening the Ecuadorian legal order and its essential values.

The importance of determining territorial competence in violence cases

Juliana Gabriela Kina — Mon, 03 Feb 2025 00:00:00 -0500

El presente artículo tiene por objeto visibilizar el impacto de la aplicación de las normas de procedimiento sobre competencia territorial de los tribunales en el marco de procesos centrados en hechos de violencia contra niñas ejercidos por adultos o por adolescentes, cuando el delito no encuadra en el concepto de violencia de género del derecho español. Ante un aumento creciente de violencia entre personas menores de edad y, en particular, contra niñas o jóvenes, corresponde evaluar críticamente —desde el derecho— la posible revictimización que puedan sufrir las damnificadas ante la aplicación de las reglas de competencia territorial, dada la situación de especial vulnerabilidad en la que se encuentran. En este análisis, se hará referencia al derecho internacional a efectos de enriquecer las conclusiones.

Virtual infidelities… real divorces? Between law and cyberlaw

Miguel Ángel Bolaños Rodríguez — Mon, 03 Feb 2025 00:00:00 -0500

This article approaches the advance of information technologies in conjugal relations, as a generation of new situations previously not thought of by legislators and what was once science fiction is now a paradoxically non-tangible reality such as the virtuality created by the development of the Internet. These advances create new challenges for the Law, which with its traditional rules will want to regulate them by itself, but at the same time a new response arises, such as cyberlaw with its own rules different from the traditional rules. Clearly, the new information technologies and applications that appear, such as WhatsApp, Facebook, Instagram, Snapchat, TikTok, generate new relationship scenarios between people that could affect the very foundations of conjugal relationships. Virtual situations that have real impacts on personal relationships protected by law and that deserve to be addressed from every point of view.