RT info:eu-repo/semantics/doctoralThesis
T1 Vis expansiva de los derechos fundamentales y vis atractiva de la justicia constitucional: una teorización y algunas lecciones del sistema español para el modelo chileno
A1 Cortés Moreno, Gonzalo
A2 Universidad de Valladolid. Escuela de Doctorado
K1 Derechos fundamentales
K1 Constitutional justice
K1 Justicia constitucional
K1 Fundamental rights
K1 Derechos fundamentales
K1 5605.04 Derecho Constitucional
AB The jurisdictional protection of fundamental rights began to intensify from the second half of the 20th century, through the creation of new procedural ways for their direct protection and the reorientation of existing ordinary and constitutional processes towards a new protective function. This meant seeking a new balance between the powers of different government branches and, especially, between ordinary and constitutional jurisdictional bodies, making the administration of justice more complex. In this scenario, some legal systems have been more efficient than others in establishing a coordinated system for the jurisdictional guarantee of fundamental rights. In this regard, the Spanish system of jurisdictional guarantee of fundamental rights was original and highly exceptional until 1990, when a series of nations began to adopt a similar configuration, turning it into a model reference. On the other hand, the Chilean model shows several flaws, mainly linked to the overuse of the procedural institutes of the constitutional jurisdiction in matters not closely linked to fundamental rights and to the low constitutional density of the jurisprudence generated in said procedural channels.The framework of the legal systems under study is a part of a broader problem, originated in the strong transformation experienced by fundamental rights. Originally enshrined in norms that became operative only with the mediation of the legislator, fundamental rights are today directly applicable by all jurisdictional bodies, developing a ubiquity that allows them to have an impact on virtually any legal business (vis expansiva). This substantive phenomenon has strong procedural implications, since it tends to blur the boundaries between constitutional and ordinary jurisdiction, producing a widening of the former (vis atractiva), a phenomenon that is especially delicate in those systems in which both functions are handled by different bodies.On the other hand, the design of the jurisdictional guarantee systems of fundamental rights is normally carried out with the idea that their holders have access to a judge or court to request the restoration or preservation of those rights in the face of a specific injury (subjective dimension). However, it is also essential that these systems incorporate elements that promote the jurisprudential construction of the meaning and scope of fundamental rights, given their institutional significance (objective dimension). This is because it should not be overlooked that, along with the individual importance that such rights possess, they also fulfill a supra-individual function, as defining elements of the legal and social order.The subjective jurisdictional guarantee of fundamental rights is built of a multiplicity of procedural devices, all different from each other in legal nature and whose knowledge is entrusted to various jurisdictional bodies, whose coordinated aggregation allows them to form a multilayer or multilevel system, with its essential purpose being to provide direct protection to the affected holders. On the other hand, the objective jurisdictional guarantee of such rights should be constructed with the designation of a body as its supreme interpreter and through the establishment of procedural instruments that allow said magistracy to develop hermeneutic work, while fulfilling a function of iusfundamental nomophylaxis, allowing the emergence of interpretative guidelines that enrich the work of the remaining state bodies and civil society.Considering the above, this thesis dogmatically and comparatively analyzes the way in which the subjective and objective jurisdictional guarantee of fundamental rights is structured and organized in the Spanish and Chilean legal systems, in search of some lessons in the former that may contribute to the optimization of the latter.
YR 2024
FD 2024
LK https://uvadoc.uva.es/handle/10324/75851
UL https://uvadoc.uva.es/handle/10324/75851
LA spa
NO Escuela de Doctorado
DS UVaDOC
RD 10-jun-2025