DERECHO - POLÍTICA Y DESARROLLO

Permanent URI for this collectionhttp://201.159.223.65:4000/handle/123456789/154

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¿SON LAS ALIANZAS PÚBLICO PRIVADAS UN MODELO DE GESTIÓN DE PROYECTOS DE OBRAS Y SERVICIOS PÚBLICOS INCLUSIVO Y SOSTENIBLE?
(2019-02-13) Moscoso Moscoso, Francisco Xavier; Lòpez Suárez, Daniel
This research seeks to analyze from the legal perspective whether public-private partnerships are a strategy that facilitates the participation of civil society in the development of public works and services projects. In the theoretical framework of work, different conceptualizations of the subject of public-private partnerships are pointed out, given that there is no single concept in this doctrine about this figure of administrative law. Its objectives are to analyze the nature of the legal regime applicable to public-private partnerships in Ecuador. Study the regulatory legal framework of public-private partnerships in Ecuador. Determine if public-private partnerships constitute a project management model for inclusive and sustainable public works and services. The present investigation is a documentary review of the laws that regulate public-private partnerships in Ecuador. Methodologically constitutes a documentary review, as results can be noted that public-private partnerships are a contract that runs between privatization and traditional concession and like the rest of the contracts generates obligations, with the peculiar characteristic that the subjective element active of the legal relationship is the State. Among the conclusions, there is an extensive normative framework that provides legal security to the private sector and allows the Ecuadorian State to actively incorporate civil society in the management of matters of collective interest.
DERECHO PENAL DEL ENEMIGO: INADMISIBLE EN UN ESTADO CONSTITUCIONAL DE DERECHO, PERO UNA AMENAZA LATENTE EN LA LEGISLACIÓN PENAL ECUATORIANA.
(2019-02-13) San Andrés Pérez, Xavier Alejandro; Chang Guerrero, Antonio
The present investigation has as purpose to expose the foundations of the Constitutional State of Rights and Justice of Ecuador, that is sustained in the protection of the human rights and the preconization of the human person like the center of the state action, giving an equal treatment to all the people , including this aspect in the criminal prosecution of a person; but the Ecuadorian penal legislation from the promulgation of the Integral Penal Organic Code, introduces doctrinal criteria and typifications of new criminal conducts, derived from the criterion denominated "criminal law of the enemy"; theory that provides an explanation to the alleged unequal treatment provided by the State to people who are facing the commission of illegal acts, stratifying them between citizens and enemies, a fact that leads us to generate an analysis on whether these elements are harmful to the Constitutional State. In order to achieve the stated objective, we resorted to scientific research methods: historical - logical, hermeneutic and comparative legal; applying the technique of interpretation and analysis of doctrinal and normative contents. An identification of the basic budgets of the Constitutional State is made in the infra constitutional normative generation and the constitutional principles that are violated with the criminal norms contained in the COIP that would suffer from criteria derived from the criminal law of the enemy. As a result of the investigative process we have that there are COIP norms that are harmful to the Constitutional State, and consequently a control of constitutionality must be generated.
LA FALTA DE NOTIFICACIÓN DE LA ORDEN DE APREMIO PERSONAL EN CONTRA DEL DEMANDADO EN LOS JUICIOS DE ALIMENTOS: TRANSGRESIÓN DEL DERECHO CONSTITUCIONAL A LA DEFENSA
(2019-03-13) Ñauñay Colcha, Xavier Alejandro; Villacis, Alexandra
This essay studies the issue of alimony, specifically the relationship between the enforcement by commital’s order and the right to defense. An attempt is made to clarify whether the absence of a enforcement by commital’s order violates the constitutional right to the defense of the person sued for alimony. For this reason, this paper has been structured in three parts that are related to each other. First, it is convenient to explain what is meant by enforcement by commital; second, how the enforcement by commital relates to the principle of the Best Interest of the Child, and third, how both concepts affect the constitutional right to defense. Finally, the general conclusions are formulated that show that it is an issue that goes beyond the law. With this work, it is expected as a final result that the violation of the right to defense will be seen with complete certainty. It is worth mentioning that for the present study extensive use will be made of doctrine, jurisprudence and the pertinent laws that regulate such matters.
“ANÁLISIS CONSTITUCIONAL, LEGAL Y CONVENCIONAL DEL TESTIMONIO ANTICIPADO COMO MEDIO DE PRUEBA EN LA FASE DE INVESTIGACIÓN PENAL PREVIA”.
(2018-01-13) Chan Alarcón, Nixon Giancarlo; Coronel Zambrano, Javier
Purpose of this investigative work is to make known the importance of receiving advance testimony as a means of proof, applying the regulations in force in our country, in the merits of the actions of the Prosecutor. We analyzed topics such as: their background, history, characteristics and conceptions of the object of study, making known the relevance of the subject as a test in the development of previous research. Consequently, we analyzed the legal and international regulations where our theme is based on the Magna Carta in its article 78, the American Convention on Human Rights in its article 25 and in the Comprehensive Organic Code in its article 11 where it guarantees the victim a greater and better protection as it is described in his theories by the following authors: Ferrajoli, Lamberti and Carbonell among others is.
VACÍOS NORMATIVOS DE LA MUERTE CRUZADA Y EL CONTROL DE CONSTITUCIONALIDAD
(2018-08-13) Landívar Orellana, Hugo Fabricio; Coronel, Javier
The so-called "crossed death" in Ecuador, was conceived in the Constitution of the Republic of Ecuador in 2008, contained in articles 130 and 148, is a figure of difficult interpretation for the law, since there are no legal references on its meaning in the Ecuadorian legal system, nor historical references of its application in the Ecuadorian reality, also denotes the evident lack of legal logic that proposes a contradiction with the constitutional precepts, without neglecting that the role of constitutional control carried out by the Court Constitutional has been omitted in such juridical - political artifice, reason why its existence is unnecessary, even more if Ecuador has been proclaimed as a Constitutional State of rights and justice.
LA GESTIÓN AMBIENTAL COMO COMPETENCIA EXCLUSIVA DE LOS GOBIERNOS AUTÓNOMOS DESCENTRALIZADOS PROVINCIALES ESTABLECIDA EN LA CONSTITUCIÓN DE LA REPÚBLICA DEL EC
(2018-12-13) Herrera Palacios, Roxana de Louedes; Rodríguez Williams
The present work was developed through a bibliographic research, and it emerged that the fundamental basis of environmental management in the Ecuadorian State is solidarity, co-responsibility, cooperation, which must be coordinated by the population to achieve economic and environment progress of social character. The main strategies at the global level in the face of conflicts regarding the environment are the Environmental Management Systems, hereinafter EMS, proposed as protocols to systematically recognize and operate all environmental impact; EMSs are related to quality management systems. Among the significant objectives of an EMS are, identify significant environmental aspects; as the applicable legislation, and other requirements; expose and adjudicate environmental policy commitments. The Decentralized Autonomous Governments, hereinafter DAG, of the provinces carry out the issuance of environmental records, environmental certificates and environmental licenses, for example, licenses given to industries and / or companies that perform work that generates a complex level of environmental impact. Finally, environmental management as the exclusive competence of provincials DAG, established in the Constitution of the Republic of Ecuador 2008, requires technical and economic resources to provide an optimal service of social works, in addition to specialized human resources to develop an optimal EMS in order to improve the conditions territories of the DAGs in terms of maintenance services needed for the community benefit.
LA PONDERACIÓN COMO MÉTODO DE INTERPRETACIÓN IDÓNEO PARA LA PROTECCIÓN DE DERECHOS CONSTITUCIONALES
(2019-01-13) Guerrero, Estefania; Masapanta, Christian
The juridical interpretation in constitutional sense could be considered like a tool that the Ecuadorian constitution give to the knowledgeable judges of the subject, for the analysis of the norms that rule them, and, for some reason they are incompatible with the dispositions of our “Carta Magna” plus the rights and the guaranties too , with the paradigms written in there too, with the finality that there could exist harmony between both with a lot of criteria that allow to the justice administrator to elucidate the norms putted in their exam. According with an analysis of our internal juridical system, the high praise is found inside the methods where the constitutional judge could Access when there´s a conflict between norms and values, so, the interpretation of constitutional rights and values its substantial for their protection, because, identifying them, we could define the weight or the valuation that they have in some cases that value or norm according to the analysis of the acts that carry to them and that are notified to the judicial authority. The study of the constitutional normative, doctrine and jurisprudential analysis, results necessary for a true interpretative exercise, because the high praise, encountering intimately connected with the proportionality principle, allow the judge to realize a due protection of rights and principles for a better justice efectivization, because not all the principles that are in consideration of the jurisdictional entity, complete the necessary qualities and requisites to be considered norms or principles that have influence in the constitutional dimension of the Ecuadorian rights
“EL DERECHO A LA PRUEBA Y A LA MOTIVACIÓN EN LA ORALIDAD, A PARTIR DEL OBJETO DE LA CONTROVERSIA Y PARA ASUNTOS TRIBUTARIOS”
(2018-11-13) Ferrin De La Torre, Carlos René; Rodríguez Mongón, Marco Vinicio
This work aims to provide guidance on guidelines to address the object of the controversy determination and the points under debate determination, keeping in mind the unrestricted respect for the constitutional right to the proof and the judgment motivation, for which, in the current context of oral hearings that was put into effect by the General Organic Code of Processes (COGEP), due to tax issues and other matters; and, for this, in the context of our constitutional and legal framework, the pronouncements in both doctrine and jurisprudence, especially Uruguayan, Peruvian and Spanish, are analyzed in order to highlight the issues about the object of controversy, as well as the right to proof and motivation, all of which leads to propose two points in the COGEP to reform and share some suggestions to the academy and legal scholars.
LA TUTELA JUDICIAL EFECTIVA DE LOS DERECHOS DE LA NATURALEZA EN ECUADOR A PARTIR DE LA PROMULGACIÓN DE LA CONSTITUCIONAL DE 2008
(2019-02-13) Centeno Roque, Luis Miguel; Albuja Varela, Francisco
The current Constitution in Article 10 determines that nature is subject to rights. Since such declaration, nature has seen a strengthening in the normative aspect of fundamental rights, with which, it is not considered as an object of use of the human being, but nature is recognized as a managing subject of all forms of life, and the rights that correspond to its conservation and development have greater relevance within the Ecuadorian legal system. However, the problem presented by the rights of nature is that at the time of judicialization, there are inconveniences for the effective judicial protection of their rights to be properly applied. This is evidenced by the need to have a greater number of specialized technical and judicial personnel, who with a better preparation and experience can ensure a better satisfaction of the rights of nature, which is because the training of environmental professionals both at the level of expertise and within the context of justice officials receive a preparation that is insufficient. Thus, in this article is proposed and justified the duty of the State to train and train a greater number of justice officials on environmental law issues, to then create exclusive and specialized environmental justice entities in a cross-cutting manner, in order to have greater resources to promote greater effective judicial protection of the rights of nature.
ANÁLISIS DE LA APLICACIÓN DE SANCIONES ADMINISTRATIVAS POR DEFRAUDACIÓN ADUANERA, CON BASE AL ARTÍCULO 299 NUMERAL 3 DEL COIP
(2018-03) Yoncon Romero, Andrea Johanna; Rendón Vergara, Bella Denisse
The present academic study analyzes the procedure performed by the customs administration at the time of sanctioning the behaviors that, according to the interpretation made, are assimilated to the typified in numeral 3, of article 299, of the Penal Code, through the use of the fourth general provision and third amendment provision of the Penal Code, considering that a contravention has been committed; likewise, it was reviewed that the budgets are subject to the infraction of which it is a breach of customs like the contravention, and that the third one and the interpretation that is realizing the customs authority. In conclusion, other ways are proposed to sanction importers, in order to be in accordance with the principle of legality, in such a way as to guarantee the rights of importers and improve foreign trade relations.
“INCONSTITUCIONALIDAD DEL DELITO DE CALUMNIAS TIPIFICADO EN EL CÓDIGO ORGÁNICO INTEGRAL PENAL”
(2017-06) Vera Almeida, Yandri Elpidio; Orellana, Rene Astudillo
It has been investigated that Ecuador is a constitutional state of rights and justice, because it is so defined by Article 1 of the Constitution of the Republic of Ecuador, which means in its legal reality that the legal system and State structure, Its cornerstone the full respect of the human dignity of citizens. Thus, the sub constitutional norm, in the criminal area, being the Integral Criminal Organic Code, must develop and regulate constitutional rights according to the current constitutional norm, but this organic norm, does not comply with that, because it does it unconstitutionally by typifying the calumnies as An offense under Art. 182, is to undermine the constitutional right to express opinions freely expressed in Art. 66.6 of the CRP 2008; Art. 1.1, 2, 9, 13.1 of the Pact of San José; And, the binding precedents with erga omnes effects in the cases Kimel vs. Argentina, Herrera Ulloa Vs. Costa Rica, or The Last Temptation of Christ Vs. Chile. Therefore, it is necessary to expel the offense of slander from the Ecuadorian legal system and thus will comply with the highest duty of the State that consists in respecting and enforcing the rights guaranteed in the Constitution
“ANÁLISIS DEL ARTÍCULO 157 DEL CÓDIGO ORGÁNICO INTEGRAL PENAL EN RELACIÓN A LA VIOLENCIA PSICOLÓGICA Y SU DERECHO COMPARADO”
(2018-06) Torres Cabrera, Janet Jazmín; Vivar Älvarez, Juan Carlos
The present research work carries out a study and analysis of article 157 of the Integral Penal Organic Code referring to psychological violence, its gradualness in the scale of affectation, its judgment and its right compared with the Colombian and Nicaraguan legislation in order to establish a comparison in procedure and judgment of this crime. Violence in the family environment and especially against women is one of the latent problems in society; In Ecuador, the issuance of the COIP marks a milestone in criminal legislation regarding violence against women and the family, so that Article 157, apart from defining the criminal type of psychological violence, considers a gradual scale of psychological damage: mild, moderate and severe damage; article that is subsequently reformed by the Organic Law to Prevent and Eradicate Violence against Women, modifying the scale and establishing it by affectation or not of a mental illness or disorder. This scale allows the judge to establish a gradual penalty with the help of expert experts who establish the level of psychic disorder caused to the victim by the aggressor.
EL PRINCIPIO NON BIS IN ÍDEM, FRENTE A LA JUSTICIA INDÍGENA EN ECUADOR
(2017-12) Sellan Zambrano, Wagner Samuel; Ron Erráez, Ximena
The fundamental purpose of the present investigation is to present in detail the scope of the principle of non bis in idem or prohibition of double judging and its relationship with the administration of indigenous justice which is based on their ancestral customs and traditions. A special attention deserves us the case known as "La Cocha", in which at the discretion of the Constitutional Court there was no transgression of the prohibition of double judging.
LAS GARANTÍAS AL DEBIDO PROCESO EN EL PROCEDIMIENTO DIRECTO REGULADO EN EL COIP
(2017-02) Rodriguez Alvarado, Maria Leonela; Vivar Álvarez, Juan Carlos
The purpose of this article is to propose the necessary legislative changes for the improvement of the direct procedure as the only way to guarantee due process and legal certainty within this procedure. The study of this causes us to affirm that there are violations of due process in the way that this procedure is currently under Article 640 of the COIP, and specifically in the right to defend the accused. In order to arrive at the result the present investigation was developed from three fundamental parts, the first one to explain from a theoretical conception what is the due process and the constitutional guarantees that configure it. The second is related to the analysis of the violation of these guarantees in the direct procedure established in article 640 of COIP. The third is directed to the analysis of the interview made to legal operators and finally the academic proposal to carry out a future reform of the procedure studied and its adherence to the norms of due process. In this research were used as scientific methods analysis-synthesis and induction - deduction, theoretical-legal, exegetical-legal and content analysis, as well as the technique of surveys.
PENSIÓN ALIMENTICIA. ANÁLISIS DE LA VULNERACIÓN DEL DERECHO DEL ALIMENTANTE SIN RELACIÓN DE DEPENDENCIA LABORAL”
(2018-02) Pluas Morocho, María Mercedes; Villacis Parada, Alexandra Jacquelin
Los derechos y principios constitucionales conforme se consagran en nuestra Carta Magna, son interdependientes y poseen igual jerarquía, tanto en el ejercicio y goce de los mismos, como en su protección, los cuales deberán ser garantizados por el Estado de manera prioritaria. Este ensayo, se ha realizado partiendo de estas premisas de las cuales se desprenden, el derecho a recibir la pensión alimenticia necesaria para el desarrollo integral del niño, niña o adolescente y, por otra, el derecho a una remuneración digna que gane el alimentante y que le permita cumplir con sus obligaciones. Cada derecho posee principios originarios que dan sentido al propósito de los mismos, los cuales se han analizado para la comprensión del presente trabajo
LA APLICABILIDAD DE MEDIDAS CAUTELARES DISTINTAS A LA PRISIÓN PREVENTIVA EN AUDIENCIA DE CALIFICACIÓN DE FLAGRANCIA
(2018-06) Pico Jijón, Paola Katherine; Vivar Älvarez, Juan Carlos
The present work consists in the study and analysis of alternative measures other than pretrial detention in flagrancy qualification hearing. In order to carry it out, the principles governing pretrial detention have been analyzed, as well as its problems with the principle of innocence and its replacement in flagrant hearings by non-custodial measures; taking into account that pretrial detention is used as a coercive measure to appease the social alarm generated by the commission of a crime, causing a pre-trial in the person under trial directly affecting the principle of presumption of innocence and the rights of freedom recognized International Treaties and Agreements on Human Rights. From the investigation carried out, it is concluded that preventive detention should not be the general rule for all criminal cases, and that in a flagrant qualification hearing this precautionary measure must be exceptional, and precautionary measures not involving deprivation of liberty must be applied
ANÁLISIS DE LA RESPONSABILIDAD CRIMINAL DE LAS PERSONAS JURÍDICAS EN LA LEGISLACIÓN PENAL ECUATORIANA
(2018-02) Ordoñez Honores, Cinthya Johanna; Chang Guerrero, Antonio
Due to the quivk development of science and modern and sophisticated technology, being an era of globalized cyber world, companies in today's society, have acquired enormous importance in the multinational economic development and in the same way also has innovative forms of infringement using these companies, being such crimes often unpunished; what became necessary in the legislature to regulate their criminal actions and impose sanctions for legal persons who are established in specific cases in Comprehensive Organic Penal Code, although throughout history have been applied penalties natural persons, following a criminal act determined by law as typical and unlawful since this required that the perpetrator of the unjust act will and conscience; because in this paper a brief analysis to know why started talking about criminal liability of legal persons, the need for traditional criminal law makes rethink their dogmas to the current reality is carried out, considering that degree of damaging nowadays does not stem from an individual but corporate, or rather bodies, legal entities with an increasingly complex organization where there the division of labor and the role and compliance with certain roles and with great capacity power of decision
“EL AFIANZAMIENTO TRIBUTARIO Y SU CONTROVERTIDA CONSTITUCIONALIDAD. UN ESTUDIO CRÍTICO DE LA REALIDAD JURÍDICA ECUATORIANA”
(2017-11) Macías Yépez, Jean Carlos; Rodríguez Williams, Daniel Eduardo
The present work turns on the tributary establishment in the Ecuador, established in the article 233 of the Tributary Code to leave the Reformatory Law for the Tributary Justness of the 2007. The general objective of the investigation is to base its unconstitutionality, taking into account that so much its conception, interpretation like application is that attempts against the access to the justice, it guides her judicial effective and other principles constitutionally grateful. In the development of the work he/she is defined the tributary establishment, their nature, characteristic, purpose and effects; he/she is distinguished of the institute solve et repete; and it is systematized the doctrinal, legal configuration and jurisprudencial of the establishment in the compared environment. Also, to support the thesis, it is analyzed and it questions the conditioned constitutionality of the tributary establishment imposed by the sentence N.º 014-10-SCN-DC, of August of 2010, 5 that it has marked an important line jurisprudencial in this sense. In definitive, the payment of a caution or establishment, upward to ten percent of the quantity of the demand, it constitutes without doubts a significant obstacle for the taxpayers that it excludes, in fact, to those that don't have enough patrimony to satisfy it and, for this and other reasons, it is inequitable, unjust and discriminatory.
EJECUCIÓN DE LAS RESOLUCIONES DE LA CORTE INTERAMERICANA DE DERECHOS HUMANOS EN EL SISTEMA CONSTITUCIONAL ECUATORIANO
(2017-11) Macías Sabando, María Fernanda; Rodriguez Willians, Daniel Eduardo
The investigation of this paper is related to the effectiveness of the judgments of the Inter-American Court of Human Rights, that is, the analysis of the process in the international way and the execution of the failures of such organ in the system Ecuadorian constitutional. So, in thefirst part, the main doctrinal and legal concepts are developed in relation to the inter-american system of human Rights and the character of in appealable decisions of the court. In this sense is the school of supervision that has the court HDI and action for non-compliance as a constitutional measure that exists in Ecuador to execute such failures in the face of non-compliance with sentences by the Ecuadorian state, describing some cases in which his responsibility for the violation of human rights was determined. At theendis analyzed the central topic of discussion, making an analysis on the effectiveness of action for non-compliance to ensure the implementation of decisions of the Inter-American Court, which allowed the elaboration of the respective conclusions and Recommendation.
ALCANCE EN LA APLICACIÓN DE LA LEY DE LAVADO DE ACTIVOS EN LAS PERSONAS JURÍDICAS
(2018-05) León Icaza, José Orlando; Vivar Álvarez, Juan Carlos
The present study focuses on obtaining a national vision about the management of prevention, detection and eradication of the crime of money laundering, exercised through legal entities in Ecuador due to its high vulnerability. Based on the legal analysis of the existing rules on money laundering in the ecuadorian legal system, and interviews with recognized jurists and people involved in the control of this crime, results will be obtained from their experience described, which formulates a series of observations in favor of a better application of the controlling measures of this crime, to capture and prosecute the people who adapt their behavior in this infraction, and consequently try to reduce the crime rates in this trend. The possible solution of granting a mandatory computer system to the various entities that report to the UAFE; as well as, financial legal entities or not and promote a radical change in the forms of transactional payments

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