Maestría Derecho
URI permanente para esta colecciónhttp://hdl.handle.net/11634/144
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Ítem La oposición de buena fe exenta de culpa en los procesos de restitución de tierras: una revisión a partir de los fallos del Magdalena Medio durante el periodo 2018-2020(Universidad Santo Tomás, 2024-09-09) Herrera Leal, Mayra Alejandra; Buenahora Galvis, Iván DaríoThe genesis of the land restitution processes has been based on providing a scenario of care, assistance and comprehensive reparation to the victims of the armed conflict based on the creation of judicial, administrative, social and economic measures in an attempt to provide protection to the victims of the armed conflict as subjects of special protection by the Colombian State and society. Therefore, through the present research work entitled: "the opposition in good faith exempt from guilt in the land restitution processes: a review based on the rulings of the Magdalena Medio during the period 2018-2020" a study has been carried out detail of the factual and legal foundations that have been developed and applied by jurisprudence for the recognition of good faith free of guilt and in addition to this that the victims can access the recognition of the respective patrimonial reparation for each specific case, and finally , also highlights the proposal of some recommendations for the academic and legal community on the guidelines that must be met in accordance with the Colombian legal systemÍtem Reparación integral de las víctimas del corregimiento de Santa Isabel del municipio de Curumaní – Cesar en el marco del plan de retorno y reubicaciones durante el periodo 2014 – 2022(Universidad Santo Tomás, 2024-08-21) Garcia Avellaneda, Fatima; Rodriguez Quintero, MilciadesThis research analyzes the fulfillment of the actions of the Return and Relocation Plan in the process of comprehensive reparation to the victims of forced displacement in the township of Santa Isabel, municipality of Curumaní (Cesar), during the period 2014-2022. This analysis is framed in the context of the Social State of Law, examining the national and international regulatory framework that protects this population. In this sense, fundamental milestones such as the Constitutional Court's Ruling T-025 of 2004 and the Victims Law 1448 of 2011 are highlighted, which seek to guarantee the fundamental rights of victims, especially human dignity. Through a qualitative approach with descriptive scope and documentary design, the actions carried out by the municipality and the National System of Attention and Integral Reparation to Victims (SNARIV) were analyzed in this Plan, which guarantees the generation of income, health, education, among others. Subsequently, it determines the levels of compliance, showing partial progress in aspects such as productive projects and health insurance. However, there are worrying lags in the areas of entrepreneurship, psychosocial care and access to land, which continue to violate the essential rights of this community. Although the Return and Relocation Plan represents progress, its implementation has not been sufficient to guarantee comprehensive reparation. Greater inter-institutional coordination is required to effectively address these challenges.Ítem Valoración probatoria de los mensajes vía WhatsApp: análisis desde el proceso penal colombiano(Universidad Santo Tomás, 2024-07-24) Flórez Villamizar, Nayibe; Rojas Burgos, Angélica Tatiana; Casas Farfan, Luis FranciscoThe general objective of this degree work is to analyze the evidentiary value that WhatsApp messages have in Colombia in criminal proceedings. This aspect essentially derives from the debate that exists about the way in which jurisdictional operators carry out the evidentiary assessment procedure for data messages that come from the WhatsApp application, encouraged by the various positions that the high courts that have adopted them have taken. taken as indicative evidence, documentary evidence or purely electronic evidence. For this reason, the research uses a qualitative and deductive methodology, which allowed us to go from the general concepts to the particular application of the topic in criminal procedural law. That said, the degree work allowed the main results to be generated, a systematization proposal, in which i) the evidentiary validity of these data messages is accepted by any means they are incorporated into the process, ii) a margin of value given by the medium, be it documentary or expert, and iii) the assessment of the jurisdictional operator depends strictly on the criteria of sound criticism and the integrity with which said evidence is keptÍtem Clasificación de la minería en el marco jurídico minero y ambiental colombiano(Universidad Santo Tomás, 2024) Castañeda Nieto, Rosa Patricia; Santana Fernández, Consuelo del Pilar; Sosa Ruiz, Juan Carlos; Universidad Santo TomásThis investigation aims to identify the problems faced by miners who are still classified in a range of average mining with the volume reported in the Programas de Trabajos y Obras –PTO and the difference with the environmental process before the Autoridad Nacional de Licencias Ambientales [ANLA] with costs that are for large miners. The methodology developed is mixed, given that both qualitative and quantitative approaches are approached. From a qualitative perspective, a revision of the current regulations on the classification of mining in Colombia is unfolding, its implications and terms of reference at the environmental and mining level tending to obtain permissions for the exploitation of minerals. From a quantitative perspective, the collection of data related to costs is carried out by those who incur the average miner during the process of requesting environmental licenses before mining and environmental entities. In the surveys carried out with 35 people, it was found that, while aware of the regulations, 82.9% recognized the mining classification of Decree 1666 of 2016 of the Ministry of Minas, although 17.1% is not there. On the other hand, 68.6% know the classification according to Decree 1076 of 2015 of the Ministry of Environment and Sustainable Development MADS, and 31.4% do not know it. In both cases, it can be decided that it is valid to assume a generalized knowledge of the norm on the part of those surveyed. Keywords: Mining Classification, National Environmental License Authority [ANLA], Work and Work Programs –PTO.Ítem Análisis del cumplimiento de la sentencia del 8 de julio de 2020 de la Corte Interamericana de Derechos Humanos “caso Petro Urrego vs. Colombia”, con ocasión de los efectos jurídicos de la sentencia C-030 de 2023 de la Corte Constitucional(Universidad Santo Tomás, 2024-06-06) Villota Carvajal, Lina María; Romero Molina, César AugustoThe object of this work is the case of Petro Urrego vs. Colombia, taking into account that this led to the enactment of law 2094 of 2021, whose constitutionality was examined from the Constitutional Court's judgment C-030/23, which has legal effects that hinder compliance with the Inter-American Court of Human Right’s judgment of July 8, 2020, considering conventional standards and the jurisprudence of the Council of State.Ítem Impacto de las medidas cautelares, decretadas por los Jueces Administrativos del Circuito de Bucaramanga, en la protección provisional de derechos de los ciudadanos e intereses legítimos de la administración (2012-2021)(Universidad Santo Tomás, 2024-05-08) Barco Jaimes, Juan Felipe; Carrillo Hernández, Paola Andrea; Bravo Vesga, CarolinaEffective judicial protection and its protection are provided for in the Universal Human Rights System, the American Regional Human Rights System, the Political Constitution of Colombia and the Statutory Law of Judicial Administration -LEADJ-. Precautionary measures are an instrument to guarantee effective judicial protection. Before the Administrative Litigation Jurisdiction before the issuance of Law 1437 of 2011, only provisional suspension was provided for as a precautionary measure, however, this provision expanded the type of precautionary measures to conservative, anticipatory and suspensive, as a reflection of the new constitutional model where, in addition, the emergency precautionary measure was created. In accordance with the above, taking into account that to date more than 10 years have passed since the entry into force of Law 1437 of 2011 and the impact of the precautionary measures decreed in the ordinary contentious-administrative processes processed before the Judicial Circuit is unknown. of Bucaramanga in the provisional protection of citizens' rights and legitimate interests of the administration, an analysis is carried out in which the rights and/or legitimate interests object of the requests for precautionary measures, the type of measure requested, the time of response and favorability, in order to verify whether this tool constitutes a mechanism for the temporary protection of the rights of citizens and legitimate interests of the administration, who access the administration of justice in search of materializing them. The methodology used a mixed approach (quantitative and qualitative) with the collection, measurement and analysis of data through the concepts and variables implemented, also allowing an influential relationship between them. The scope was correlational since the relationship between the variables was measured: precautionary measures and protection of legitimate rights and interests. And a type of sample was used that was probabilistic and was applied to all cases presented from 2012 to 2021 in the Administrative Courts of the Bucaramanga Circuit.Ítem Restricción del derecho político de acceso y permanencia en la función pública de los gestores fiscales por los fallos con responsabilidad fiscal a la luz de la Convención Americana sobre Derechos Humanos.(Universidad Santo Tomás, 2024-04-03) Medina Cuesta, Edwin Hernando; Peña Cortes, Juan Sebastian; Diaz Hernandez, Jahir FabianThis paper focuses on whether, in the light of the American Convention on Human Rights, it is still viable for the Comptroller's Offices to limit the political right of access and permanence in public office of fiscal managers declared fiscally responsible? To this end, it initially describes the process of fiscal responsibility in its current regulation and the disqualifying consequence of the ruling with fiscal responsibility, addresses the political right of access and permanence in public office, and the effects of the convention regarding the restriction of such political right in the process of fiscal responsibility, and presents some decisions of both the Constitutional Court and the Inter-American Court of Human Rights regarding the powers of the comptroller's office when as a result of the fiscal ruling limit such right. Thus generating an academic space of knowledge of the Fiscal Responsibility Process in Colombia, the content and scope of the political right of access and permanence in public office, and its possibilities of restriction through this process in the light of the referenced Convention, and the problems it raises in the current regulation. And, by answering the question described, a proposal to this academic and legal debate will be presented.Ítem La colaboración eficaz en el sistema penal colombiano: regulación de la causal cuarta del artículo 324 de la Ley 906 de 2004(Universidad Santo Tomás, 2024-02-12) Portilla Villamizar, Ana María; Valencia Caballero, César JavierThe purpose of this research is to develop a proposal to improve the regulation of the figure of effective collaboration contained in the principle of opportunity - fourth cause of article 324 of the Colombian Code of Criminal Procedure. To achieve this end; As a research methodology, legal dogmatics was initially applied to illustrate the content and form of the application of said figure in our penal system and thus, find the shortcomings it has when it comes to being executed. Now, as a second methodological tool, it was necessary to resort to comparative law, initially, contrasting the regulation of effective collaboration between countries belonging to Ibero-America that had an accusatory criminal system or with an accusatory tendency, then the guiding principles were analyzed. This and subsequently, a country that had better regulatory and legal development was selected, giving Peru as the country of selection. When making the comparison between the regulation of effective collaboration in Colombia and Peru, it can be concluded that our penal system has not correctly defined what can be understood as effective collaboration. Likewise, it has not been delimited how information can be included in the other processes, and the lack of extensibility of these other participants in the criminal action.Ítem Formación de la Familia en Derechos Humanos para Prevenir la Violencia Intrafamiliar(Universidad Santo Tomás, 2023-12-05) Felizzola Flórez, Rosana Margarita; Rivera Alcaraz, Yuranny Andrea; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000069941; https://orcid.org/0009-0005-3944-2345This text is the result of the research project entitled: "Family Training in Human Rights to prevent intrafamily violence", which arose from concern about the ineffectiveness of the regulation against intrafamily violence in Colombia, since the statistics published by the National Institute of Legal Medicine and Forensic Sciences expose the insufficiency of the regulations to control this scourge; that is why this text addresses the concepts of family, the duties and obligations of each of its members, family conflict, violence family and the rules that regulate it, as well as human rights as a set of regulations, training approaches in human rights, peaceful conflict resolution, peace, reconciliation and coexistence, in order to summarize the most relevant aspects to propose in which and how to train the family, managing the conflict, recognizing individual participation in what concerns its origin and democratizing the contribution for its resolution through peaceful mechanisms that build the process of training in human rights and the prevention of intrafamily violence . This proposal is assumed as a commitment of all, that is, State, Society, Family, in the understanding that its omission generates State responsibility because the State must protect the fundamental nucleus of society - The Family.Ítem Jurisdicción especial de paz: una revisión acerca de Descongestión Judicial en el marco de los Contratos de arrendamiento, Floridablanca - Santander, durante el 2019(Universidad Santo Tomás, 2023-10-20) Muñoz Martínez, Carlos Fernando; Benavidez Mendoza, Gissette CarolinaThe Special Jurisdiction for Peace contributes to the promotion of a culture of harmonious and peaceful coexistence and, consequently, conflict resolution. This jurisdiction and the figure of the Peace Judges in Colombia have a scope that covers the resolution of everyday conflicts, both civil and community, without the need to activate the ordinary judicial apparatus. The purpose of this work lies in the knowledge of the contributions that the implementation of the Special Jurisdiction of Peace and the Peace Judges have had in the judicial decongestion and the administration of justice, specifically in terms of conflict resolution derived from the breach of residential housing lease contracts due to the non-payment of the rental fee in the municipality of Floridablanca, Department of Santander. The procedures applied by the Special Jurisdiction and their legal effects in lease contract processes are analyzed. This research is interested in Justice of Peace as a legal category of study, from its evolution and implementation in Colombia, focusing on the jurisprudence of the Peace Judges and their main functions. Emphasis is placed on the procedure followed in the processes of lease contracts and the legal effects of the decisions made by the Special Jurisdiction - Peace Judges. It also considers the principles of the justice of peace, its free nature, and the costs that must be assumed by the user. The work showed that the Jurisdiction implies greater citizen participation in the solution of conflicts in an agile and timely manner and reduces judicial congestion. The Justices of the Peace function as mediators and conciliators with the capacity to apply justice impartially. The implications are positive as they foster a culture of peaceful coexistence and conflict resolution without resorting to violence, which in turn contributes to consolidating peace in Colombia. A significant contribution was also evidenced in the judicial decongestion and the administrative management of judicial processes in the offices of the municipality of Floridablanca, in the resolution of conflicts in residential housing lease contracts for non-payment of the rental fee. It is evident that the implementation of the justice of peace, with its focus on alternative conflict resolution and social coexistence, has contributed to improving the efficiency and effectiveness of the judicial system in this field. The free nature of the Special Jurisdiction - Peace Judges and their ability to resolve conflicts quickly and effectively.Ítem La responsabilidad médica en cirugía estética a la luz de las decisiones de la Corte Suprema de Justicia en Colombia(Universidad Santo Tomás, 2023-09-15) Serrano Villarreal, Andrea Juliana; Gómez Suarez, Jorge LuisCosmetic surgery in Colombia is currently a recurring procedure in all types of social sectors and age ranges, which has become a phenomenon within the national and international consumer society. According to a study by the International Society of Plastic Surgery, ISAPS (acronym in English) in 2019 Colombia was the third most visited country for aesthetic medical tourism, surpassed only by Brazil and Mexico (Forbes Life Magazine, 2020), this position is It is due to the quality of plastic surgeons, health services and low costs in interventions (Bernal, 2020)Ítem La responsabilidad patrimonial del Estado por cuenta de la imposición de una medida de aseguramiento privativa de la libertad, a la luz de la jurisprudencia del Consejo de Estado entre los años 2018 a 2022(Universidad Santo Tomás, 2023-09-07) Londoño Saavedra, Gustavo; Diaz Murcia, Jhosman Uriel; Gómez Ustaris, Elber EnriqueThe investigation that is presented below focuses on determining the transcendental evolution that has been taking place in the face of the processes of unjust deprivation of liberty and how patrimonial responsibility is attributed to the State and the way in which it is configured or not a failure in the service on the part of the State, at the moment in which a main right such as the right to freedom is taken away, likewise, establish what aspects are taken into account to impute the lack of responsibility to the State patrimonial, under the concept that if the State has as a guarantor of rights and for that reason, it is subject to a liability regime enshrined at the constitutional level (Political Constitution, 1991, art. 2 and 90). For this reason, an analysis of the issues that surround this type of responsibility is made, as described below, by taking a series of studies carried out, in order to find conclusions that can help a clear understanding of the general topic such as the Patrimonial responsibility of the State against the unjust deprivation of liberty, for such conclusions a search of concepts established in physical and virtual bibliographic sources was carried out, included in doctrinal, academic and jurisprudential concepts.Ítem Análisis desde la legitima defensa para la aplicación de la justicia penal en homicidios cometidos por mujeres víctimas de violencia de género en bucaramanga(Universidad Santo Tomás, 2023-08-22) Pineda Munera, Estefania; Mejia Garcia, Glendy JohannaThis paper deals with the incorporation of the gender perspective into the legal system through jurisprudential development, especially by the Constitutional Court, contrasting with positive regulations. This perspective is applied when analyzing cases of self-defense in which female victims of partner violence end the life of the aggressor. The concept of self-defense and its requirement of responding to an imminent attack are examined, highlighting that if the harm is consummated, it does not qualify as such. It is observed that justice operators in Colombia seldom apply the gender perspective in cases where a woman, a victim of gender-based violence, kills her partner, limiting self-defense to imminent physical assaults. The study delves into circumstances where violence is successive and not immediate, prolonged, or repetitive. If a woman responds to the accumulated violence due to feeling unprotected, it is argued that the gender perspective should influence the legal process, following criteria from international approaches and ratified norms by Colombia. Ultimately, this work examines the integration of the gender perspective into the legal system through jurisprudence and its application in self-defense cases involving partner violence. The need to consider the accumulation of violence within the gender perspective in the judicial process is emphasized.Ítem La participacion de la mujer conforme a lo establecido en la ley de cuotas electorales en las elecciones de la Asamblea Departamental de Santander periodo 2016 - 2023.(Universidad Santo Tomás, 2023-06-26) Mario Alexander, Villamarin Jurado; Pabòn Mantilla, Ana PatriciaThe intervention that women do in public corporations must be approached from a perspective that allows understanding the reasons that justify the inclusion of positive discrimination actions and the evaluation of accomplishment with the measures incorporated by the State to guarantee the right to participation of women. In the work presented, the analysis focuses on the evaluation of the results of the implementation of the quota law that seeks to guarantee the participation of women in the Santander Departmental Assembly.Ítem Análisis de la organización básica del estado colombiano como postulado a Estado posmoderno: mirada desde la teoría de Jean Jacques Chevallier(Universidad Santo Tomás, 2023-04-20) Tarazona Rincón, Wilinton; Gómez Suárez, Jorge LuisThis research work, analyzed the basic approach of the organization of the Colombian State, as a postulate of the postmodern State from the theory of Jean Jacques Chevallier. The study used the analytical theoretical research method, applied to a particular case, that is, taking the theory of the postmodern State, which applies to any State in the world, to take the Colombian State as proof of analysis. In the first chapter, the theory of the modern and postmodern State of Jean Chevallier will be addressed; In the second, the structure of the Colombian State will be addressed since the 1991 Political Constitution of Colombia, its characteristic features of modern states, together with the autonomous and independent institutions, and in a third chapter, the principles of the unitary State of the organization of the Colombian State against the postulates of a postmodern State.Ítem La responsabilidad del estado por los daños causados en la protesta social en Colombia(Universidad Santo Tomás, 2023-03-28) Gómez Ocampo, Laura Cristina; Cortes Uribe, Viviana AndreaIn recent years Colombia has experienced situations of violence generated in the midst of massive social protests. In addition to the destruction of public or private property and alterations to free movement, injuries and deaths were caused to demonstrators, also affecting the individual rights of those citizens who did not participate in the demonstrations. In this context, concern arises about the responsibility of the State, which from a constitutional rank is attributed the obligation to respond and repair all that antijuridical damage that can be attributed to its agents when they are in the exercise of their functions. In this sense, this research work addressed the responsibility of the Colombian State in the face of social protest, from the theory of damage and the national context of the last five years. After reviewing the current legal documentation, it was determined that the State is responsible for the action or omission that may affect or damage the fundamental and individual rights of any person involved in or affected by the exercise of the fundamental right to social protest. However, taking into account that in a framework such as that of a protest, the State claims not to be responsible for the totality of the damages, the complexity arises to identify with certainty who the perpetrators are. This is where the victims of damages are forced to bear a burden that they should not have to bear.Ítem La estructura legal colombiana en la educación frente al objetivo segundo del milenio.(Universidad Santo Tomás, 2023-03-06) Diaz Jaimes, Jenny del Pilar; Santamaría Sánchez, ElvaThe thesis presented in this master's degree work explores a study of the regulations related to the second millennium objective, in addition to its relationship with the educational and historical reality of Colombia. Thus, public policies in Colombia have been in charge of achieving compliance with the universalization of primary education and literacy, even though in Colombia the commitment to the universalization of primary education has failed and has been driven more by the court rulings than by government action.Ítem La responsabilidad penal de la persona jurídica: Un estudio a partir de la culpabilidad(Universidad Santo Tomás, 2022-09-14) Gómez Pinzón, Juan Sebastián; Parada Rueda, Rodrigo JavierWithin the globalized world, there is a need to understand the management that companies give to the involvement of legally approved and disapproved risks, from the perspective of criminal law against protected legal rights, both collective and individual, under the understanding that the criminal liability requires a solid theory prior to its interference; What is proposed in this document seeks to understand the criminal responsibility of legal persons from guilt, as a necessary budget for the commission of the crime, and thus proceed to develop a flexible theory of crime against collective entities, providing guarantees to them and making special criticism of the need for modernity of the debate both in academic and legislative spaces.Ítem Trasgresión del principio de planeación por la desnaturalización de la mínima y menor cuantía en la contratación estatal(Universidad Santo Tomás, 2022-08-24) Aguilar Peñaloza, Andrés Felipe; Forero Forero, Deisy JoannaThe application of the principle of planning in state contracting in Colombia, is constituted as an essential tool for the State, through public officials, to comply with the essential purposes, established in the Political Constitution of 1991. This principle is considered of great importance. utility for the administration to have clarity when choosing the selection modality, and for proper execution of public resources; With the purpose of analyzing the contracting processes in the small amount modality, as well as the minimum amount modality, it seeks to expose the importance and the role that these selection modalities play in favor of the interest of the community and the way how the The state uses individuals to satisfy their needs, considering them essential for the proper functioning of public entities. At the same time, a detailed analysis of the formal sources, axiological elements and legal effects of the planning principle will be carried out, The development of the research focuses mainly on three fundamental issues, through which the elements that make up the planning principle in the framework of state contracting, the process of addition to the contracts and the legal effects that arise before the state contracting will be studied and analyzed. the omission of the planning principle. Analysis that will allow the construction of the final results of the investigationÍtem Impacto de PretorIA en la elección normativa del juez constitucional dentro del marco jurídico colombiano(Universidad Santo Tomás, 2022-07-26) Carrillo Márquez, Rafael Eduardo; Moncada Flórez, Juan PabloWith the increase in normative creation, the transformation of the classic sources of law, and the new techniques of legal interpretation and legal argumentation, every judge must be more than a law expert. The complexity of the law overwhelms the judicial system, especially the task of constitutional judges, who must know the Colombian legal system in totality. In this framework will be studied the impact of the PretorIA system, incorporated by the Constitutional Court as a disruptive technological alternative to face the growing demand for a correct and efficient administration of justice.