DERECHO - POLÍTICA Y DESARROLLO

Permanent URI for this collectionhttp://201.159.223.65:4000/handle/123456789/43

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ANALISIS DEL HÁBEAS CORPUS COMO GARANTIA CONSTITUCIONAL EN EL ECUADOR
(2023-04) CROW SANCHEZ, ROGER ANTONIO; LEON PEÑAFIEL, BYRON; ORTEGA GOMERO, SANTIAGO ALEJANDRO
Through this academic article, a study was carried out based on the collection of information and opinions of different jurists who have set their sights on the Constitutional figure of Habeas Corpus, all this compendium of information was analyzed by executing a series of research techniques and procedures, focused on the criteria proposed in different academic articles and literary works that serve as a complement to the jurisprudence and doctrine of Habeas Corpus, a qualitative approach is superimposed whose cornerstone will be the data collected on this important jurisdictional guarantee that reigns in Ecuador as a measure to safeguard not only freedom, but also physical integrity and life, because in this case, the greatest result obtained in this work is to be certain of the positive functioning that Preventive Habeas Corpus would have if it were positivized in the Constitution of the Republic of Ecuador. In conclusion, this new figure of Preventive Habeas Corpus has given way to new possibilities to be able to protect fundamental rights such as Freedom and rights related to it, it has been shown that its implementation in the Ecuadorian Constitutional norm could end the uncertainty that occurs in the head of the jurists when encountering the presumed acceptance of this Tool by the judges.
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, JOSE LUIS; CARVAJAL CUEVA, OSMAC STEVEN; ORTEGA GOMERO, SANTIAGO ALEJANDRO
Positive 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.
LA RESPONSABILIDAD EXTRACONTRACTUAL Y LA INTELIGENCIA ARTIFICIAL
(2021-12-13) Hermenau Monar, Gitte Ilke.; Barona Morey, Gabriel.
Like many innovations throughout history, Artificial Intelligence is growing exponentially, it has appeared among the most commonly things used in daily life, providing most systems, machines, and devices with it. Therefore, the use of Artificial Intelligence will generate a number of problems that the actual national and international legislations around the world does not entirely regulate. Hence this paper will investigate non - contractual civil liability, perpetuating an analysis of the technical factors that cause these legal problems. It will focus on the legal framework and doctrinal institutions of non - contractual liability and will exhibit reasons why the actual legislation does not certainty. This will be exemplified by specific examples of possible damages caused by systems equipped with Artificial Intelligence. Finally, it will seek to provide solutions to these legal problems, providing guidelines on the must be for the new legislations on damages caused by systems equipped with Artificial Intelligence.
ERROR INEXCUSABLE: PASADO Y PRESENTE DE ESTA CONTROVERSIAL FIGURA JURÍDICA
(2021-12-13) Pacheco Gómez, Diego René.; Barona Morey, Gabriel.
The purpose of this study is to learn about the legal figure of inexcusable error, before and after Sentence No. 3-19-CN / 20, issued by the Constitutional Court, in mid-2020; its definitions, interpretations and the procedure for applying the dismissal of judges, in the case of incurring in this offense, by the Council of the Judiciary as the body in charge of disciplinary control of the Judicial Branch, as authorized by the Constitution. We will treat the principle of judicial independence as a guarantee of transparent judicial processes, free from interference that seek to control the judicial power at convenience or interest; A principle that not only seeks to ensure that there is a correct administration of justice, but also to enforce the principle of separation of powers. In addition, responsibility will be mentioned, in the actions of the judges, as a limit to this principle, so that it is not considered as a privilege. Finally, an analysis will be carried out on the facts and resolutions of the Constitutional Court, in the aforementioned sentence. The importance of the jurisdictional declaration prior to the beginning of the administrative summary process by the Judicial Council to sanction a Judge for the infraction due to inexcusable error; and, if this limits disciplinary control and in turn guarantees a correct application of the principle of judicial independence.
PREVENCIÓN DE LA VIOLENCIA SIMBÓLICA PUBLICITARIA HACIA LA MUJER: REVISIÓN AL ORDENAMIENTO JURÍDICO ECUATORIANO
(2022-01) FABIANI CHAVEZ, JACKELINE STEFANIA; ALARCON VALENCIA, GLADIS ADELAIDA
In this research, the qualitative method has been used to review the Ecuadorian legal system and analyze symbolic advertising violence against women in order to create a prevention plan, for which, first, its definition, background and current situation have been studied through the explanatory method in order to analyze the problem. It is perceived that symbolic violence is a deep-rooted problem in the world and significantly harms gender relations, because it is present in various forms of language, on which the dominant relations of the masculine gender over the feminine are built and allows the creation of a type of subjective violence. Bourdieu (2000) manifested that the violence exercised by men, male domination, turns women into symbolic objects, that is to say, into people who exist through the perception of others. That is why, the image of women has been used as an inferior being, dominated not only by men, but also by society.
IMPACTO DE LOS OPIOIDES EN LA SALUD PÚBLICA Y SU NECESIDAD DE REGULARIZACIÓN
(2022-01) CAMACHO BERMÚDEZ, MARÍA SOL; JÁCOME MARÍN, FRANCISCO
The purpose of this research is to expose the risks posed by the consumption of opioids without a prescription for society, emphasizing its addictive component. Similarly, comparing as in other countries has considerably increased its consumption, allocating funding for new research and reversing its addictive effect. It also wants to demonstrate the number of bodies created and repealed for the control of narcotics, with confusion and a legal vacuum. Currently in Ecuador are not regulated narcotics such as: tramadol (opium), zoplicone and mofanilo. And its free sale causes a detriment to the quality of life of Ecuadorians. Although the current government has shown itself to be involved through its public policies, to prevent addictions of other types of narcotics, if it should thoroughly analyze the sequelae that could cause the disorganized consumption of opioids in health, highlighting the young population as the main candidates to generate some type of dependence.
RESPONSABILIDAD CIVIL DEL TRANSPORTISTA EN LOS RECLAMOS DE CARGA DENTRO DEL DERECHO MARÍTIMO ECUATORIANO
(2021-12-13) Ribadeneira, María Antonieta; Barona, Gabriel.
This research aims to provide information on current national and international civil regulation regarding cargo claims in matters of maritime law. An extensive analysis is presented on the generalities of the different contracts and legal figures that regulate sea transport as well as its main effects, consequences and legal scope. A recount is made of the historical evolution of the different international conventions that regulate the matter over the years, as well as the influence they have exerted on the drafting of national legal texts to date. Finally, the legal interpretation used in Ecuador and its possible legal repercussions with a detailed study of the regulatory improvements that must be implemented within the national system to avoid legal loopholes and inconsistencies with international regulations.
CONSECUENCIAS JURÍDICAS DE LA INEXISTENCIA, IMPRECISIÓN U OMISIÓN DE LAS CAPITULACIONES MATRIMONIALES
(2022-01) CORREA GONZÁLEZ, SUSAN RACHEL; FRIEND MACIAS, ROBERT
Marital contracts are economic contracts through which the grantors choose and define the patrimonial administration system of the marriage. This paper emphasizes the economic impact of divorce, showing the need consider marital contracts, due to their legal, economic and social importance. Currently, this figure becomes a protection mechanism for the spouses with respect to their assets, debts and problems they face against third parties. Divorce has severe effects that can lead to economic disasters. Therefore, the relevance and functionality of granting marital contracts should be emphasized, allowing the grantors to formulate their own rules to adapt to their social and economic realities in order to manage their patrimony. However, due to the lack of knowledge that couples have, they do not consider the celebration of marital contracts and therefore, we will analyze the various disadvantages of the imprecision and absence of the same.
“INCONVENIENTES JURÍDICOS – LABORALES EN EL ECUADOR COMO CONSECUENCIA DEL COVID-19”
(2021-01) CARVAJAL ABARCA, PABLO ALBERTO; ALARCÓN VALENCIA, GLADIS ADELAIDA
The investigation addressed the issue of legal, labor inconveniences in Ecuador due to COVID-19, such as the loss of the monetary subsidy for illness and work accidents when contracting said virus, force majeure and fortuitous event as a cause for termination of employment. contracts in accordance with the Organic Law of Humanitarian Support. The objective of the research was to describe the measures adopted in the pandemic and their influence on labor issues. For this reason, a qualitative methodology was proposed, with a descriptive scope and phenomenological design, the development of the theoretical perspective was based on the review of the norms, agreements and legal bodies referred to in this academic work. According to the analysis carried out, it was concluded that the country was not prepared for the pandemic, monetary subsidies do not have a clear application rule in accordance with the governing purpose of the Social Security Law (hereinafter, LSS), which in the absence of an organic law on occupational risks, workers are at the mercy of the provisions of the government in power, which will always make regulations for their own benefit, but not for the worker.
EL DERECHO A LA DEFENSA Y DEBIDO PROCESO EN EL DERECHO ADMINISTRATIVO SANCIONADOR – CASO CONORTE
(2021-01) CAMPAÑA KUHN, PABLO JOSÉ; HERNÁNDEZ MUÑOZ, VERÓNICA
In order to deepen the analysis of the right to due process, right to defense, violation of these rights and their consequences, this paper is structured as follows: first, in the concepts and general notions concerning the right to due process, right to defense, principle of party autonomy and the administrative sanctioning law; second, in the Conorte vs Prefectura del Guayas case that served as a guide to understand the analysis of constitutional judges in cases where there are possible violations of fundamental rights. In the end, the existence of several criteria was evidenced by the judges and consequently, it is analyzed how the violation of fundamental rights causes legal uncertainty.
EL PROCESAMIENTO DE LOS ADOLESCENTES INFRACTORES, HACIA EL ENFOQUE DE LA JUSTICIA JUVENIL
(2021-12) DUEÑAS COELLO, MIRIAM ANDREA; VIVAR ÁLVAREZ, JUAN CARLOS
According to the Inter-American Court, the person between 12 and 18 years old will be considered as a minor, but not as a young person, the distinction made between the child and the adolescent is necessary due to the criminal responsibility that the criminal acts that they commit commit. In the present work, determining factors of imputability will be considered, age to consider an adolescent imputable, and the qualities that characterize a person as incompetent, taking into account that the capacity for guilt is measured according to the psychic faculties of the individual with respect to power. understand the norm. One of the objectives of this work is to verify if their constitutional rights are respected within the processing of minors. Concluding that the effort of the State not to violate the dignity and rights of the minor can be evidenced, the special procedure with which the adolescent is treated puts the best interest of the child as the guiding point, recognizing him as an individual of society.
ANÁLISIS DE LA CRIMINOLOGÍA MEDIÁTICA Y SU INCIDENCIA AL PRINCIPIO DE INOCENCIA EN EL ECUADOR
(2022-01) GARZÓN DIAZ, MARTHA VICTORIA; VIVAR ÁLVAREZ, JUAN CARLOS
This research aimed at the analysis of media criminology and its incidence on the principle of innocence develops the study of the theories that allow establishing the incidence of the media in the exercise and effectiveness of the promotion of justice in which criminal law as the mechanism for limiting the power of the state conditions the actions with equal weapons, granting the right and guarantees that will allow them in front of a process to presume under all circumstances their innocence, even in their absence through the Ministry of Law and the corresponding procedure will determine what contrary. To carry out this study, the applied methodology is of a qualitative nature, with a descriptive research design, since it allows to detail in a concrete way each one of the elements that intercedes in the subject of study, such as criminology and the principle of innocence, the selected methods are synthetic analytical based on the fact that they contrast the information obtained with the author's criteria to establish the concrete way in which the elements that are postulated in the study topic interact to understand the phenomenon that is developed in the research.
ANÁLISIS CRÍTICO DEL PROCEDIMIENTO PARA JUZGAR PERSONAS PROCESADAS CON TRASTORNOS MENTALES
(2022-01) MANGA HANNA, KAREN ELIZABETH; MOREJÓN LLANOS, SANDRA PATRICIA
This degree work carries out a legal analysis on mental disorders and their shortcomings that would imply a complete breach of the regulations in force in the Criminal Law of Ecuador. The administrative and judicial means currently established in the legislation would allow guaranteeing the rights of people according to the unimputability for the condition presented. Thus, the current procedure established in the Resolution and Ministerial Agreement issued by the authorities is analyzed for the better handling of legal cases, arising the need to carry out cases where non-compliance with regulations operates. As a conclusion, recommendations are proposed that would allow the proper handling of the procedure until a comprehensive reform in terms of treatment and way of presenting the causes of mental disorder is achieved that enables a more efficient legal mechanism to guarantee the right to health and comprehensive reparation. of the accused before society.
TABLA DE DROGAS: MITOS Y VERDADES
(2021-12) ARCOS PEREZ, JUAN PABLO; BARONA MOREY, GABRIEL
With the promulgation of the Constitution of the Republic, addiction is established as a public health problem, and consequently guarantees the protection and comprehensive care of addicts or consumers. In accordance with this provision, Resolution No. 001-CONSEP-CD-2013, in which a table appears with maximum tenure limits for personal consumption. The main purpose of the well-known “drug table” was to provide judicial authorities with a tool that allows them to differentiate consumers from traffickers and impose more proportional penalties. However, there are currents that affirm that this table is not a solution to the problem, but that it generates consequences such as inciting consumption, promoting micro-trafficking and causing prison overcrowding. In the present work, the following will be analyzed: i) the drug table and its correctness, form of application; ii) the legislative similarities of our country with Spain regarding the legal defense of the consumer; iii) the main myths that exist about the table; iv) and the criteria of the Constitutional Court on the application of the table will be exposed.
EL COMPLIANCE CORPORATIVO COMO ATENNUANTE DE RESPONSABILIDAD EN EL DELITOS DE ACTOS DE CORRUPCIÓN
(2021-12) NAVAS RUGEL, GISELLA ALEXANDRA; BARONA MOREY, GABRIEL
In this degree work, the author will study the incorporation of corporate compliance as an attenuating liability in crimes of acts of corruption, according to the reform carried out on february 17, 2021 of the Código Orgánico Integral Penal. A historical recount will be made in Ecuadorian legislation, in relation to the criminal responsibility of legal persons, an institution that was incorporated into the Ecuadorian legal system on august 10, 2014. Subsequently, the author will analyze the legal figure of compliance, referring to its origins, from when it was incorporated into our legal system, what is the objective of compliance, and the relationship that exists between compliance and legal persons in society and in the COIP. This analysis will be carried out taking into account that, only in 2021 was compliance incorporated into the COIP and that it was born with the purpose that by meeting certain requirements and parameters the risk or the possibility of a legal entity committing an illegal act. Finally, reference will be made to crimes related to acts of corruption and will refer to how the incorporation of corporate compliance will serve as a mitigating responsibility of legal persons, provided that it has complied with the requirements and provisions established in the COIP. Likewise, the author will compare the Ecuadorian regulations with those Spain.
LA FUNCIONALIDAD DE LA CLÁUSULA PARAGUAS EN EL DERECHO DE INVERSIONES INTERNACIONAL
(2021-12) PAREDES ANDRADE, ARABELLA ADAMARY; BARAHONA MOREY, GABRIEL
Investment Law develops the concept of the umbrella clause as a mechanism for the protection of the contractual rights of foreign investors and the States that adopt the investment, however, there are still no established parameters on its sphere of protection and application. Despite the fact that the application of this type of clause arises from the controversy for breach of contract, such dispute could be resolved by the domestic law of the host State, but the legal nature of the umbrella clause allows the resolution of disputes to be elevated to international jurisdiction, resulting in the integration of legal systems. In this degree work we will study the origin, history and purpose of umbrella clauses within International Investment Law, all this to understand the functionality of umbrella clauses with respect to the competence of international courts to resolve contractual breaches through the study of international jurisprudence.
IMPLEMENTACIÓN DE LA MUERTE ASISTIDA EN LA LEGISLACIÓN ECUATORIANA
(2021-12) WAGNER ALVEAR, ANDRÉS SEBASTIÁN; BARONA MOREY, GABRIEL
The new constitutional conception on the order of the State valid in Ecuador emphasizes the importance of ensuring the development of the human personality in society, giving high priority to will and freedom, without neglecting human rights. and dignity. Therefore, the Law has been in charge of protecting that figure that is known as the human being's own capacity that allows them to carry out actions in an intelligent and rational way, with the aim of acting at their own will, always safeguarding the fundamental pillars of this society, such as freedom and human rights. The purpose of this research work is the legal analysis to be carried out in the face of a hypothetical implementation of assisted death in Ecuadorian legislation. Within it you can find different historical and legal antecedents related to assisted death or euthanasia. Finally, there will be a detailed analysis of the regulations in force in Ecuador that would be affected by the implementation of assisted death, as well as a comparative analysis between different laws around the world where assisted death is allowed.
ANÁLISIS DE LA IMPRESCRIPTIBILIDAD DE LA ACCIÓN Y LA PENA EN DAÑOS AMBIENTALES DESDE EL PRINCIPIO DE PROPORCIONALIDAD
(2022-01) VALVERDE BALDA, DIANA MARIA; MOREJON LLANOS, SANDRA PATRICIA
This research work analyzes the imprescriptibility of the action and the penalty in environmental damages from the principle of proportionality, it executes the study of the absence of limitation in the exercise of criminal actions in relation to environmental crimes stipulated in the ordinance Ecuadorian legal system, identifies the factors that underlie the need to declare imprescriptibility of these, considering the value that nature has as a subject of rights. In this sense, it expressly expresses the relevance and connotation that this emanates in the legal system and the caution with which the rules must be applied in the event of any violation or violation that threatens or affects its protected legal asset, environment establishes sanctions proportional to the damage done. The methodology applied for the present study is of a qualitative nature with a descriptive type of research, the applied methods are analytical-synthetic, and the research design is non-experimental and that no manipulation of variables or essential elements is carried out. this.
LAS PERSONAS JURÍDICAS COMO SUJETOS ACTIVOS AL DERECHO A LA HONRA Y AL DESCRÉDITO
(2021-12) ALCÍVAR VÁSQUEZ, DANIELA; BARAONA MOREY, GABRIEL
This research develops the analysis about the susceptible rights by legal people, which are the rights that are inherent to human beings due to their quality as human beings and those that are susceptible for legal people, for which it is important to understand the origin of a legal person, how it is composed and what are the main objectives of these. It is also important to distinguish between the terms honor, credit and discredit, what are the meanings of each of them and on whom they may fall, that is, if they only belong to a human being or a legal person can claim the affectation of their honor or discredit.
ECUADOR UN PASO HACIA EL FUTURO: ADOPCIÓN HOMOPARENTAL
(2022-01) HIDALGO VERA, AYKEL MARIANA; FRIEND MACIAS, ROBERT
Same-sex adoption is a constant debate within society and the world in general. In view of the fact that, worldwide, very few countries have approved homoparental adoption. Because of this, the main objective of this research is to analyze the problem of homoparental adoption in Ecuador and identify alternatives for adoption by the LGBTI+ community to become a reality in Ecuador. The methodology used in this research work had a qualitative approach in which each database related to the main topic was analyzed. Through the results obtained from the research it was concluded that homoparental adoption in Ecuador can become a reality as well as equal marriage and that it can become a reality through an action of protection in the middle of the administrative phase of the adoption process.

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