POSTGRADO DERECHO - POLITICA
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Item INDETERMINACIÓN DE LA RESPONSABILIDAD DE LOS ADMINISTRADORES APARENTES DE LAS SAS EN ECUADOR(2023-07) ROBLES RAMÍREZ, JIMMY ALEJANDRO; CARRASCO PAZ, IVÁN ANDRÉS; CHICA MARTINEZ, FABRICIOThe present work reviews the role of the apparent administrator in the case of Simplified Stock Companies -hereinafter, SAS-, in Ecuador. To fulfill this purpose, the problem of the lack of sufficient regulation is addressed to, with legal certainty, assign responsibility in corporate matters to the apparent administrators; This makes it difficult to adequately supervise and control the operations of this type of company, generating legal uncertainty for both administrators and third parties involved in commercial relations with this type of company. The methodological approach is rationalist, allowing a systematic analysis of the problem using the inductive method and qualitative literature review techniques to collect relevant information from various academic and legal sources. The main results indicate that the lack of a more specialized regulation on the behavior of the apparent administrator in the Ecuadorian SAS generates ambiguity, making it difficult to protect the interests of the company and third parties.Item Divergencias entre las formas de terminación laboral en Ecuador: ¿sede administrativa o sede judicial?(2023-08) IZQUIERDO LORENCES, ANDREA; ORTIZ NAVARRO, ORTIZ NAVARRO; CHICA MARTINEZ, FABRICIOThis paper studies the Visto Bueno, an administrative procedure, as an instrument to solve conflicts arising by termination of a contract between employee and employer, as stated by the Labor Code. This analyzes whether the Visto Bueno procedure only delays decisions that could solely revert on jurisdictional power. By using an inductive method and qualitative techniques, such as documental revision, this paper structures several main legal points that lead to the termination of a labor contract. After analyzing the concept of Visto Bueno, it will be analyzed how this legal figure affects principles and constitutional warranties. As well, international legislation will be revised, in particular Spain’s and Colombia’s. In that sense, as conclusion, it will be stated the inefficacy of Visto Bueno resolutions after the proper revision of statistics that prove that the Visto Bueno ends up in a judicial procedure.Item EL PRINCIPIO DE DOBLE CONFORME, ANÁLISIS RESPECTO DE SU EJECUCIÓN EN LAS CONTRAVENCIONES DE TRÁNSITO DE CARÁCTER PECUNIARIO EN EL ECUADOR.(2023-07-24) MARTINEZ ARMIJOS, MARLON ADRIAN; SUDARIO BUSTAMANTE, FRANKLIN ALFREDO; ORTEGA GOMERO, SANTIAGO ALEJANDROThe present academic work deals with an analysis of the guarantee of the double agreement and its execution with respect to its execution in the processes of traffic violations of a pecuniary nature in Ecuador. The same that is relevant since the aforementioned guarantee is enunciated in the normative and constitutional text. However, it is violated in its particular application to the exposed case, since in reference to these the possibility of challenging the decisions of judges in traffic violations of a pecuniary nature is limited. For this reason, the investigative work required legal, national and international jurisprudential, and doctrinal analysis in order to understand the scope and standards required for the effectiveness of double compliance. What has been said requires the exhaustive use of legal dogmatics and legal exegetics in contrast to the Ecuadorian legal framework. It is necessary to emphasize the analysis, regarding the 3 legislation and its harmony with the standards and resolutions issued by the Inter-American Court regarding the configuration of the double agreement and the possibility of appealing the resolutions of traffic violations of a pecuniary nature. Likewise, Verify if in light of the main and relevant cases of the matter settled in the Inter-American Court. Thus, it was concluded that by preventing the challenge of judicial decisions on issues of traffic violations of a pecuniary nature in Ecuador, the double is flagrantly violated as expressed in the international framework of rights.Item “ANÁLISIS DE LA SENTENCIA NO. 2064-14-EP/21, A FIN DE CARACTERIZAR SU NATURALEZA Y EL MARCO ACTUAL DE PROTECCIÓN DE LA GARANTÍA JURISDICCIONAL DE LA ACCIÓN DEL HÁBEAS DATA”(2023-04) CABRERA FEBRES;, GABRIELA ESTEFANÍA; DÍAZ ALVARADO, SORAYA MAROLY; ORTEGA GOMERO, SANTIAGO ALEJANDROThis document has been prepared to analyze Judgment No. 2064-14-EP/21, in order to characterize the nature and current framework of protection of the jurisdictional guarantee of the habeas data action, from the perspective of technological evolution. of communications in the exercise of the right to access data and information, the right to privacy, the right to the processing of personal data, right to privacy, right to privacy, right to protection of personal data and informational self-determination , right to honor and good name and the right to be forgotten, as part of the fundamental rights of individuals. The objective of the analysis is to resolve the legal problem, which involves elucidating the nature and current framework of protection of the judicial guarantee of 3 said action in the case that arises, in order to protect the right to the protection of personal data, by honor and good name, image and privacy, which usually takes on another meaning by judges who hear habeas data actions that include the content on habeas data and its origin. Since the action of habeas data is a jurisdictional guarantee designed in order to protect the rights related to personal information. Its wide range of action allows you not only to request personal information from the applicant, but this in turn allows you to rectify all types of information, as long as the legitimate asset is the owner of this right.Item DIVULGACIÓN DE LA DECLARACIÓN PATRIMONIAL DEL CONTRIBUYENTE COMO RESTRICCIÓN AL DERECHO DE PROTECCIÓN DE SUS DATOS PERSONALES EN ECUADOR(2023-07) CAMPI RIVERA, MARLON ANDRÉS; LLERENA GARCÍA, JUAN ALBERTO; CHICA MARTINEZ, FABRICIOTHE OBJECTIVE OF THIS STUDY IS TO ANALYZE MEASURES AIMED AT PROTECTING DATA AND ENSURING THE LEGAL SECURITY OF TAXPAYERS IN RELATION TO ASSET DECLARATION TO ASSET DECLARATION. THE CENTRAL ISSUE REVOLVES AROUND RECONCILING THE LIGITIMATE INTEREST OF THE STATE IN OBTAINING ACCURATE INFORMATION FOR TAX CONTROL WITH TAXPAYERS' RIGHT TO PRIVACY AND LEGAL SECURITY IN THE PROCESS OF DISCLOSING ONFORMATION ON ASSETS AND LIABILITIES. THE ADOPTED METHODOLOGICAL APPROACH IS RATIONALIST, ALLOWING FOR A SYSTEMATIC AND OBJECTIVE ANALYSIS OF THE PROBLEM USING THE INDUCTIVE METHOD. QUALITATIVE TECHNIQUES OF BIBLIOGRAPHIC REVIEW HAVE BEEN EMPLOYED TO GATHER RELEVANT INFORMATION FROM VARIOUS ACADEMIC AND LEGAL SOURCES.Item INAPLICACIÓN DE MEDIDAS ALTERNATIVAS Y DE LA SUSPENSIÓN CONDICIONAL DE LA PENA EN PROCESOS CONTRAVENCIONALES EN ECUADOR(2023-12-04) ALVARADO ÁLVAREZ, GUILLERMO ANDRÉS; VÁSQUEZ LÓPEZ, BETTY JULIANA; ORTEGA GOMERO, SANTIAGO ALEJANDROThis study analyzed the application of the principle of proportionality in Ecuadorian misdemeanor processes and their limitations. Legislation, case law, and interviews with legal experts were reviewed to understand deficiencies in imposing sanctions, the lack of alternative penalties, and the discretion in applying mitigating factors. The results revealed a clear lack of proportionality between infractions and sanctions, with disproportionate penalties that did not consider the severity of the offense or the individual circumstances of the offender. The absence of alternatives to imprisonment led to prison overcrowding and exposed offenders to unfavorable conditions. The main conclusion was the urgent need to reform Ecuador's misdemeanor judicial system. It was proposed to review legislation to incorporate proportional alternative measures, establish uniform criteria for their application, and promote social reintegration programs. These reforms would not only ensure fair proportionality between offenses and penalties but also strengthen the judicial system and ensure more equitable justice.Item LA VULNERACIÓN A LA TUTELA EFECTIVA Y LA CORRECTA APLICACIÓN DE LA IMPUTACIÓN OBJETIVA EN EL PROCEDIMIENTO DIRECTO(2023-01-30) SILVA PERLA, GAME BUENAVENTURA; ZAMORA SÁNCHEZ, JAIRO RICARDO; ORTEGA GOMERO, SANTIAGO ALEJANDROThis academic article addresses the importance of objective imputation in direct proceedings in criminal cases, specifically in cases of second-degree robbery in Ecuador. It discusses how the correct application of objective imputation is crucial to guarantee effective protection in the criminal process and how the violation of effective protection in the direct procedure can affect justice and society in general. It also analyzes the use of the direct procedure in criminal cases in Ecuador, which concentrates all stages of the process in a single hearing and is used for flagrant crimes. While this procedure aims to speed up the process, it has been criticized for potentially violating constitutional rights such as the right to defense and due process. The main result obtained in the article is that the direct procedure does not guarantee sufficient procedural guarantees and that the objective accusation must take into account the knowledge, intention and malicious actions of the suspect in the commission of the crime. In conclusion, it is argued that the use of the direct procedure in criminal cases in Ecuador can lead to a violation of the right to a fair trial and that it is necessary to balance the principle of speed with the protection of constitutional rights. In addition, the importance of objective imputation in the determination of responsibility for a crime is highlighted and its correct application is crucial to ensure effective protection in the criminal process.Item ANÁLISIS SOBRE LOS MODELOS DE IMPUTACIÓN DE LA RESPONSABILIDAD PENAL DE LA PERSONA JURÍDICA ESTABLECIDOS EN EL CÓDIGO ORGÁNICO INTEGRAL PENAL FRENTE AL PRINCIPIO DE SEGURIDAD JURÍDICA Y EL DERECHO A LA DEFENSA CONSAGRADO EN LA CONSTITUCIÓN DE LA REPÚBLICA DEL ECUADOR(2023-12-04) GUAPISACA FERNÁNDEZ, MIRIAN JOHANNA; MÉNDEZ CAMPOVERDE, JÉSSICA FERNANDA; ORTEGA GOMERO, SANTIAGO ALEJANDROWith the validity of the Comprehensive Organic Penal Code, criminal conduct is classified not only for natural persons, but also for legal entities, a classification that was not considered in our previous Penal Code. The purpose of this article is to analyze the models of imputation of self-responsibility and hetero-responsibility established in the Comprehensive Organic Criminal Code, in the face of Constitutional principles that to a certain extent are affected by the regulation of the criminal liability of legal entities, in addition to this, The model for attributing criminal liability of the legal entity that complies with the Constitutional State of Rights will be determined, for which a reform of the criminal liability regime of the legal entity contained in the Comprehensive Organic Criminal Code is necessary, with the objective of that the jurisdictional body is not limited when administering justice to legal entities, avoiding violations of the constitutional rights of these persons. The type of approach of this article is descriptive-comparative, with inductive reasoning by obtaining true and supported conclusions based on the premises.Item EL PERITAJE ANTROPOLÓGICO Y SU USO EN EL PROCESO PENAL ECUATORIANO(2023-12-04) LOOR MIRANDA, CRISTINA GABRIELA; SANCHEZ GAETE, CARLOS LUIS; ORTEGA GOMERO, SANTIAGO ALEJANDROThe purpose of this research is to make an analysis on the use of anthropological expertise as a means of proof within the Ecuadorian criminal process, visualizing its use to achieve effective judicial protection and guarantees of due process. It is for this reason that the objective of this study focused on establishing the uses of this expert evidence in the criminal process, as well as the flaws and distortions of interpretation that occur in judicial practice. In this sense, the research was based on a theoretical-normative review of anthropological expertise and its practical application in the reality of criminal proceedings. In this way, we seek to make known the uses of this means of proof and how it can contribute to the judging and effectiveness of sanctions against people within the framework of a diverse worldview. Regarding the research methodology used, the qualitative modality was applied with doctrinal study, review and analysis of Ecuadorian regulations and case studies, based on inductive and deductive methods, as well as analysis and synthesis that have allowed each of the units to be broken down. of study referred to. As a result, it was obtained that anthropological expert evidence must be studied in depth by justice operators, in order for it to be included with greater regularity and relevance and allow access to higher standards of justice from the perspective of the constitutional state of rights.Item ANÁLISIS SOBRE LA PREVENCIÓN Y SANCIÓN DE LA VIOLENCIA DE GÉNERO EN EL MARCO DE LOS TRATADOS INTERNACIONALES DE DERECHOS HUMANOS DE LA MUJER(2023-11-28) ZARAMA CRUZ, ADRIANA CAROLINA; LEMOS ESPINOZA, AURA MARINA; ORTEGA GOMERO, SANTIAGOThe purpose of this research was to carry out a critical and reflective analysis of the role that international human rights instruments have in terms of protecting the rights of women in terms of their integrity, well-being and exercise of their fundamental rights within a context. environment free of all forms of gender violence. It is for this reason that the objective of this study focused on establishing this relationship between the prerogatives of these instruments and the scope of protection of rights against the problem of violence raised. Thus, the research support was referred to the role that the Belém do Pará Convention specifically plays so that the States of the Inter-American Human Rights System have the basis of normative principles that guide this fight. In this way, it seeks to prevent situations of international responsibility as occurred with Ecuador in the case of Paola Guzmán Albarracín in accordance with the sanction received by the Inter-American Court. Regarding the research methodology used, the qualitative modality was applied with an in-depth doctrinal study, Ecuadorian regulations and human rights treaties, and the aforementioned case study, which was based on inductive and deductive methods, as well as analysis. and synthesis that have allowed each of the aforementioned study units to be broken down. As a result, it was determined that the Belém do Pará Convention requires further development within the domestic law of the member states of the IAHRS.Item EL PHISING COMO CIBERDELITO Y SU CONDUCTA TÍPICA DIFERENCIADA DE OTROS DELITOS INFORMÁTICOS EN EL ECUADOR(2023-12) CONFORME OJEDA, JOSÉ LIZANDRO; VELA ANDRADE, NELSON; ORTEGA GOMERO, SANTIAGO ALEJANDROPhishing is an Anglo-Saxon term that refers to a malicious attitude within web browsing, seeking to deceive the user in order to access their data and assets. In this sense, this project had as background, the references on the growth of the incidence of this crime in the global, regional and local spheres. In the same way, it was possible to determine its general objective: to analyze the constitutive elements of "PHISING" as a new cybercrime and its typical conduct differentiated from other computer crimes established in the Comprehensive Organic Criminal Code. using the descriptive, analytical and documentary field research methodology; with the use of inductive-deductive and historical-legal methods; for which a collection of information was carried out through a questionnaire containing ten 3 closed questions. Finally, the following results were obtained as a consequence: it was differentiated that the COIP crimes did not contain the type of Phishing. Keywords: computer crime, penal norm, penal type.Item ANÁLISIS DE LA ESTRUCTURA NORMATIVA DE LOS DERECHOS FUNDAMENTALES COMO MANDATOS DE OPTIMIZACIÓN Y SU INCIDENCIA EN LA SUPREMACÍA JUDICIAL A TRAVÉS DE LA JURISPRUDENCIA DE LA CORTE CONSTITUCIONAL DEL ECUADOR ENTRE 2015 - 2020(2022-11-27) MONAR HOYOS, JOSÉ LUIS; CARVAJAL CUEVA, OSMAC STEVEN; ORTEGA GOMERO, SANTIAGO ALEJANDROPositive rights that require the state to take action are often criticized because they give rise to a problem of justiciability: courts, rather than democratic legislatures, decide on their scope and content. This paper argues that this democratic objection against positive 3 rights is wrong. The control of constitutionality admits degrees. The conflict between the powers of the legislature and the courts can be resolved through a balancing exercise whose relevant aspects are analyzed in this research. The balanced constitutionality control model is explained later with a case analysis that is based on the right to a decent minimum subsistence. It is widely accepted that any attempt to limit the positive dimension of rights to certain types or categories of rights is futile. Rather, literally all rights can impose negative consequences as well as positive obligations on the authorities. Thus, status positivus in the sense of the German scholar Georg Jellinek potentially has very wide applicability. The positive dimension of rights is discussed mainly with respect to socioeconomic or social rights such as education, health, housing, water. However, the positive dimension is by no means limited to social rights. All the classical liberal rights of the first generation of rights can have a positive dimension, while social and socioeconomic rights also protect a negativus status. It follows that liberal rights cannot be distinguished from socioeconomic rights in the positive-negative dichotomy. This is why this research uses the term 'positive law' in a way that encompasses the positive dimension of rights, no matter what generation the law comes from.Item Las Alianzas Público-Privadas: Propuesta de solución para el desarrollo de viviendas de interés social por parte de los Gobiernos Autónomos Descentralizados.(2023-12-04) ROMO-LEROUX CAAMAÑO, JIMMY; CASTILLO TIGSE, ANDRES; MARTINEZ MOSCOSO, ANDRESThe purpose of this article is to demonstrate how Public-Private Partnerships contribute to the development of social housing especially for the class, promoting innovation and housing quality, to learn about the benefits of this type of alliances and encourage the adoption of sustainable approaches in construction, thus improving the quality of life of vulnerable communities and promoting sustainable urban development and meeting the need for housing. The proposed research adopts a qualitative method with a deductive and dogmatic approach, this approach involves a study of the current regulations of Public-Private Partnerships in other countries to assess their applicability in the context of Municipal Public Housing Enterprises in Ecuador. Through this comparative analysis, it will be possible to identify effective solutions to satisfy the need for housing and provide an adequate home to the low-income population. The article focuses on analyzing the relevance of Public-Private Partnerships (PPP) in the development of low-income housing. The problem addressed is not necessarily the housing deficit and the need to improve the living conditions of disadvantaged communities, but to know how to solve them economically, since PPPs have proven to be an effective modality in the development of housing construction projects. The collaboration between the public and private sectors allows access to financing and specialized expertise, speeding up projects and improving the quality of housing.Item La Inaplicación de las Garantías Penitenciarias en los Sentenciados por el Delito de Lavado de Activos en el Ecuador(2023-12-04) ROMO AMOROSO, JOHN SANTIAGO; GALLARDO CENTENO, JAIME ENRIQUE; ORTEGA GOMERO, SANTIAGO ALEJANDROWithin this work, an in-depth analysis has been carried out on two very important topics currently in the field of criminal law, one of them is penitentiary guarantees. In this work, a historical account has been made of how penitentiary guarantees were born in Ecuador, its advances, benefits and scope. An analysis of penitentiary guarantees has been carried out taking as a source several authors who deal with the subject and clarify the rights of those deprived of liberty, over time, being necessary to see this to understand the rights acquired by these citizens, also in this Section has discussed the application of regulations corresponding to the phase of the execution of the sentence, which is contemplated in the Comprehensive Organic Penal Code (COIP). Another topic discussed is the crime of money laundering, taking as a source several dogmatic sources, with authors who explain the origin of this crime, its object, type of crime, scope and form of regulation in the country, in response to this a inclusion of our article 317 of the COIP, where this illegal act is classified. Finally, regarding the object of study, an in-depth analysis has been made of the reform carried out on December 24, 2019, its transgression of constitutional rights and non-application of penitentiary guarantees, demonstrating the distinction to those sentenced for this type of crime, limiting in this way the rights of those deprived of liberty.Item El femicidio: Análisis de la Jurisprudencia respecto a las relaciones de poder como elemento constitutivo de este delito(2023-12-04) YANÉZ PÉREZ, ARIANA VALENTINA; ORTEGA GOMERO, SANTIAGO ALEJANDROThis research analyzes the phenomenon of femicide in Ecuador, focusing on the importance of power relations as a constitutive element of the crime. It explores the multifaceted nature of gender violence and how socially established gender roles contribute to it. Through the study of Ecuadorian legislation and Peruvian jurisprudence, the research delves into the definition, classification, and legal treatment of femicide, highlighting the challenges in demonstrating power relations in judicial processes. It emphasizes the need to understand femicide as a problem rooted in unequal power structures and as an extreme manifestation of gender violence, all with the aim of establishing clear interpretative guidelines to determine when power relations exist.Item ANÁLISIS DE LA APLICACIÓN DEL TEST DE PROPORCIONALIDAD EN LA DETERMINACIÓN DE LA PRISIÓN PREVENTIVA EN LA PROVINCIA DEL GUAYAS 2018 – 2022(2023-12-04) MERO ZAMBRANO, SAÚL ALBERTO; ORTEGA GOMERO, SANTIAGO ALEJANDROCriminal law is based on different principles such as the principle of legality, proportionality, minimum intervention, last ratio, among others. Currently there are multiple doctrines that aspire to become a standard theory that explains criminal law in t he Constitutional State, among them, we find penal functionalism and guaranteeism. Although functionalism has had extensive diffusion in Latin America, its autopoietic, normativist conception and its ideological commitments to the doctrines of states of ex ception and the law of the enemy have not been able to displace the liberal guaranteeist conception of criminal law, for which the The objective of the criminal law is to protect legal assets. In this sense, although criminal law is applied based on certai n principles that are interpretative standards, such as the principle of minimum intervention or the principle of harm, criminal legislation has incorporated precautionary measures aimed at protecting the administration of justice such as preventive prison In this sense, preventive detention is a restrictive measure of freedom and although it has a positivization of legal order, it needs a foundation of a constitutional nature to justify its application. Therefore, the incorporation of the proportionality test as a methodology for applying the principles is configured as a constitutional requirement to determine the reasonableness of the measure that restricts a fundamental right. This investigation will be carried out using the logical deductive method and the jurisprudential case method, that is, from the particular to the general since it involves determining a non random sample of resolutions in which preventive detention has been declared justified; Likewise, the exegetical hermeneutical method will be applied since the nature of criminal legal institutes is normative and as expressions of meanings manifested through texts, an understanding of them is necessary. The techniques will be the signing and analysis of cases. As a result of the research, we exp ect a systematization of the methods, standards and interpretive criteria that have justified the origin of preventive detentions by applying the proportionality test.Item ANÁLISIS COMPARATIVO SOBRE EL USO DE LA PRISIÓN PREVENTIVA COMO MEDIDA CAUTELAR EN EL DERECHO PENAL DE ECUADOR Y PERÚ(2023-12-04) SABANDO RODRÍGUEZ, JELITZA DAYANA; PATIÑO MOREIRA, MILTON ARNOLDO; ORTEGA GOMERO, SANTIAGO ALEJANDROLegislation ensures fair administration of justice for all members of society through legal frameworks that support the observance of fundamental principles and rights within the context of a State. Among these essential and inalienable rights are individual liberty and the presumption of innocence until proven guilty. In this research study, preventive detention has been analyzed as a personal and exceptional precautionary measure that limits the exercise of the right to liberty for a significant period. This measure will only be applied in situations where other precautionary measures are insufficient to ensure the objectives of the process, which focus on the legal verification of the existence of infringement measures and the determination of the criminal responsibility of the accused. In the theoretical field, logical historical approaches and synthetic analyzes were used, while in the empirical aspect a documentary analysis and an exegetical analysis were carried out. The results obtained are linked to continuous efforts at the international level to protect the human rights of citizens.Item ANÁLISIS DE LAS SENTENCIAS ATÍPICAS SUSTITUTIVAS Y LA AFECTACIÓN AL PRINCIPIO DE SEPARACIÓN DE PODERES Y LA SEGURIDAD JURÍDICA POR PARTE DE LA CORTE CONSTITUCIONAL(2022-11-30) ARREAGA ESCOBAR, JULISSA JENIFFER; PULGARÍN BARRETO, JUAN PABLO; ORTEGA GOMERO, SANTIAGOThe present investigation intends to analyze the repercussions of the atypical substitute sentences issued by the Constitutional Court in relation to the principles of separation of powers and legal certainty, specifically to demonstrate how they intervene in the legislative role that the Constitutional Court has. National Assembly. Therefore, to fulfill this purpose, the same-sex marriage ruling in Ecuador is presented as a case study. In this way, a broad dogmatic and normative study is carried out, which allows identifying how and in what way the Constitutional Court assumes a role of positive legislator. Regarding the methodological aspects of this research, a qualitative study of direct and documentary observation is developed, where the foundations of the doctrine, the constitutional norms and the case study are analyzed. On the background of this research, a study of national and international doctrine was carried out to check if the study of this topic has significance in other legal realities of other States. Consequently, the results of this research allow us to recognize how the atypical substitutive sentences of the Constitutional Court are involved within the legislative role of the National Assembly when the Court does not have the competence or express power to reform the text, scope and purpose of a law. legal norm when the unconstitutionality of the norm has been declared within a consultation that starts from the control of constitutionality both at an abstract level and at a concrete level within the Ecuadorian legal system.