POSTGRADO DERECHO - POLITICA

Permanent URI for this collectionhttps://repositorio.uees.edu.ec/handle/123456789/3885

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EL SENADI Y SUS ACTOS ADMINISTRATIVOS, LA LIBERTAD DE EMPRESA Y LA SEGURIDAD JURÍDICA
(2026-03) PABLO JOSÉ HIDALGO BOWEN
The present investigation revises the reason why arbitrary administration acts in reference to the application of articles 273 and 360 of the Código Orgánico de la Economía Social de los Conocimientos, Creatividad e Innovación limits the exercise of legal security and freedom of enterprise, especially, when set arbitrary act is found in the cases when the Servicio Nacional de Derechos Intelectuales -SENADI- denies the registration of a brand or patent based upon legislation that has unprecise, ambiguous and subjective elements. The primary method used to develop this article was the inductive method, applying qualitative techniques of document analysis, mostly regarding the Constitución de la República del Ecuador, the Código Orgánico de la Economía Social de los Conocimientos, Creatividad e Innovación, the Código Orgánico Administrativo, among others, jurisprudence and pertinent doctrine. In consequence, the existence of negative legal consequences that are provoked by the arbitrary acts coming from SENADI and the impact that they have on freedom of enterprise and legal security
LA JUBILACIÓN PATRONAL EN ECUADOR: ENTRE LA SOSTENIBILIDAD ECONÓMICA Y LA PROTECCIÓN LABORAL
(2026-04) ANDRÉS ALFONSO BONILLA FIERRO; BRITHNEY ANABELA HURTADO YUPANGUI
Employer-funded retirement in Ecuador, regulated by the Labor Code since 1938, faces a crisis of sustainability and effectiveness. Current regulations generate perverse incentives for premature dismissal and financial pressure due to NIC 19 provisions, limiting real access to the benefit. This study analyzed the incidence of employer retirement on job stability and corporate economic sustainability to propose a portable savings model. A qualitative, descriptive-propositive research was conducted in Ecuador during the 2024-2026 period. The dogmatic-legal method was applied for regulatory analysis, and the analytical method was used to evaluate secondary information sources, including Ministry of Labor databases and actuarial reports from private sector companies. It was determined that less than 4% of the private workforce effectively accesses employer retirement after 25 years with the same employer. It was identified that the accumulated financial burden encourages strategic dismissals as the worker approaches 20 years of service, undermining job stability. The current system is exclusionary and unsustainable, transforming a protective right into a risk for job permanence. The transition to a model of individual and portable capitalization, similar to the "Austrian Backpack," guarantees the progressivity of rights and the financial health of the productive sector.
Legaltech y la seguridad jurídica en Ecuador: una revisión a las reglas sobre la firma electrónica en los contratos de telecomunicaciones
(2026-02) Lisbeth Estefania Chernez Alvarado
This paper analyzes whether electronic telecommunications contracts signed with electronic signatures generated using legaltech tools—not accredited by ARCOTEL—are fully valid in terms of their legality. The paper begins by presenting a conceptual framework that includes basic definitions to understand the existing problem. This is followed by a review of the current state of the art, which compiles doctrinal debates from the last five years. Finally, the main 3 section analyzes the problem through a discussion of the relevant issues. Through doctrinal interpretation, important aspects that the CLM (Contract for the Legalization of Telecommunications Contracts) should contain and its nuances were reviewed. Through systematic regulatory analysis, the solution that addresses the technical gap was determined. This gap is that the lack of express regulations has generated legal uncertainty in the interpretation of the evidentiary validity of electronic signatures in telecommunications contracts. The main conclusion was that, as long as the legaltech software, in its electronic signature stage, as part of the CLM, generates a certificate that includes all the formalities required by the standard, it will be equivalent—not the same—in legal value to that of an electronic signature issued by an entity certified by the Ecuadorian regulatory body.
AUTONOMÍA EMPRESARIAL VERSUS CONTROL PÚBLICO: EFECTOS DE LA REFORMA AL ARTÍCULO 47 DE LA LOEP EN LA FISCALIZACIÓN ESTATAL
(2025-06) ANA PAULA SCHWEITZER VINTIMILLA
This paper analyzes the 2020 reform of Article 47 of the Organic Law of Public Enterprises (LOEP) concerning state oversight of the financial management of public enterprises in Ecuador, with the aim of determining whether this legal amendment has strengthened transparency or, on the contrary, weakened institutional oversight mechanisms. Through an inductive methodology and the use of qualitative documentary review techniques, a normative, doctrinal, and contextual analysis was carried out. The results show that the reform, by authorizing public enterprises to hire private external auditors, has reduced the effective scope of control exercised by the Office of the Comptroller General of the State, creating institutional risks that undermine transparency, the impartiality of oversight, and accountability. Consequently, it is concluded that the reform has weakened state control and represents a setback in ensuring the efficient and transparent management of public resources. A review of this reform is proposed in order to reestablish the central role of the Comptroller’s Office, allowing private audits solely as a complement and in no case as a substitute for public oversight.
DESAFÍOS DEL MARCO JURÍDICO ECUATORIANO FRENTE AL ACOSO LABORAL EN CONTEXTOS DE PRECARIZACIÓN: DE LA LÓGICA SANCIONADORA A LA PREVENCIÓN INTEGRAL
(2026-03) JUAN JOSÉ VIDAL ZEA; ABRAHAM SANTIAGO CUEVA MARÍN
Workplace violence and harassment constitute a significant concern in the Ecuadorian context, particularly in situations of labor precarization that limit access to effective protection mechanisms. This study aimed to assess the adequacy of the Ecuadorian legal framework in addressing workplace harassment, in light of ILO Convention No. 190 and Recommendation No. 206, as well as the comparative experiences of Colombia, Chile, and Spain. The research adopted a qualitative legal-dogmatic and comparative approach, based on the analysis of normative, jurisprudential, and international sources. The findings indicated that the Ecuadorian system remains predominantly reactive, relying on administrative mechanisms that result in the termination of the employment relationship, with no burden of proof flexibility, no protection against retaliation, and limited reparation. It is concluded that the Ecuadorian legal framework is insufficient to ensure effective protection, highlighting the need to move toward a comprehensive preventive model aligned with international standards.
ANÁLISIS DE LA EFICACIA NORMATIVA DE LAS CAPACITACIONES OBLIGATORIAS EN IGUALDAD SALARIAL
(2026-04) VALERIA PAULETT BRAVO VILLAMAR; GLADYS ISABELLA RAYMOND NOBLECILLA
This study analyzes the normative effectiveness of the obligation to implement training on gender equality and non-discrimination, as established in the Regulation implementing the Organic Law on Equal Pay between Women and Men in Ecuador. From a socio-legal and labor compliance perspective, the research aims to determine whether such obligation constitutes an effective mechanism to promote pay equality and the substantive enforcement of the principles of equality and non-discrimination in the workplace. The study adopts a qualitative-exploratory design, based on a semi-structured questionnaire administered to representatives of private companies across various economic sectors. The findings indicate that, although training generates positive effects in terms of awareness, improvement of workplace climate, and strengthening of internal policy compliance, its impact on reducing pay gaps is limited when implemented in isolation. Furthermore, the results show that the effectiveness of these measures does not depend on the number of training hours mandated by regulation, but rather on qualitative factors such as top management commitment, the methodology employed, and the practical application of content. In this regard, a tendency toward formal compliance with the obligation, rather than results-oriented substantive compliance, is observed. Comparative legal analysis demonstrates that the most effective models in the field of pay equality incorporate structural mechanisms such as prior diagnostics, pay audits, monitoring indicators, and action plans, within which training plays a complementary role. Consequently, it is concluded that the obligation analyzed presents limitations in effectively addressing pay inequality, highlighting the need to integrate it into broader organizational strategies aimed at structural change.
ANÁLISIS COMPARADO SOBRE LA REGULACIÓN ACTUAL DE LA EUTANASIA Y EL DERECHO A LA VIDA, ENTRE PAÍSES COMO ECUADOR, CANADÁ Y ARGENTINA.
(2025-10) JOSSELYN BRYGGITTE VILELA VERDEZOTO.
This study presents a comparative analysis of the regulation of euthanasia and the right to life in Ecuador, Canada, and Argentina. It examines how each country has interpreted the tension between individual autonomy and the protection of life, highlighting similarities and differences in their constitutional and legal frameworks. In Ecuador, the Constitutional Court has recognized euthanasia as a right under specific circumstances, while in Canada, Medical Assistance in Dying (MAID) represents a consolidated model with strong legal safeguards. In contrast, Argentina maintains a restrictive stance, criminalizing euthanasia but recognizing certain patient rights, such as refusing disproportionate treatments. The analysis reveals that the regulation of euthanasia cannot be understood solely as a legal mechanism, but rather as the outcome of a complex process of balancing fundamental rights, ethical considerations, and cultural values.
TRABAJO DE TITULACIÓN QUE SE PRESENTA COMO REQUISITO PREVIO A OPTAR EL GRADO DE MAGÍSTER EN DERECHO CON MENCIÓN EN DERECHO EMPRESARIAL
(2025-07-21) ERICKA TORRES MALDONADO
This academic article reviews the impact of omitting or inadequately preparing market research during the pre-contractual phase within Ecuador’s public procurement system. A qualitative methodology with a rationalist approach was applied through documentary analysis of national regulations, administrative jurisprudence, and doctrinal studies. The research found that a significant portion of the processes reviewed by the State Comptroller's Office present planning deficiencies, especially due to the use of generic, unverified, or technically unsupported market studies. These deficiencies have led to serious consequences such as failed procedures, overpricing, simulated competition, or unjustified cancellations. The main finding shows that noncompliance with proper market research structurally undermines the legality, efficiency, and transparency of the procurement process. The study concludes that market research should not be seen as a mere formality but as an essential instrument for state planning. Recommended corrective measures include the implementation of technological tools, preventive oversight, and institutional training.
Inteligencia artificial aplicada en diagnósticos médicos: modelos de caja negra y la protección al derecho a formar un consentimiento informado
(2026-02) María Belén Prieto Correa
The present paper reviews the use of black-box Large Language Model (LLM) artificial intelligence systems that are used by healthcare professionals when they enter their patients’ clinical data and use such systems as a basis for the formulation of a medical diagnosis, as well as the consequences that this produces for the exercise of the patient’s right to informed consent. For the analysis, the inductive method was mainly used, applying the qualitative technique of documentary review of the provisions of the Constitution of the Republic of Ecuador, the Organic Health Law, the Organic Law on Personal Data Protection, and other relevant regulations, including international instruments. It is mainly concluded that these systems, due to their opacity, when used as a basis for a medical diagnosis, hinder the exercise of the patient’s right to form informed consent and also limit the explanatory capacity of the healthcare professional.
INTEROPERABILIDAD NORMATIVA VS. APLICACIÓN ADMINISTRATIVA: RIESGOS JURÍDICOS EMPRESARIALES EN LA DETERMINACIÓN DEL IMPUESTO A LA PATENTE MUNICIPAL EN ECUADOR.
(2026-02) FANNY LISBETH ROMERO LOOR
The lack of interoperability between the Internal Revenue Service and the Decentralized Autonomous Governments in the management of the municipal business license tax is reflected in the generation of tax obligations disconnected from the current legal status of companies as taxpayers. The analysis reveals that even though there is current legislation mandating the application of the principle of interoperability within the public administration, its implementation is fragmented and lacks effective institutional mechanisms to ensure the exchange of information between the aforementioned institutions. This results in the transfer of legal risk to companies, thus violating taxpayers' right to legal certainty by allowing the imposition of tax obligations that do not correspond to the current taxable event. The research is conducted using a qualitative approach, employing the dogmatic-legal method and utilizing documentary review and analysis of Ecuadorian regulations, doctrine, and jurisprudence.
ANÁLISIS DEL USO DEL HÁBEAS CORPUS COMO PROTECCIÓN DE LAS PERSONAS PRIVADAS DE LIBERTAD EN EL CANTÓN QUEVEDO
(2025-07) OLGA MARÍA MAQUILÓN DONOSO
The Constitutional Court of Ecuador has reaffirmed that the right to personal integrity -in its physical, psychological, moral and sexual dimensions- enjoys reinforced protection in contexts of deprivation of liberty. Its violation, through acts such as the excessive use of force, constitutes a serious transgression of constitutional and jus cogens norms. In the Lara Matamoros case, it was proven that state agents incurred in a disproportionate use of force (use of non-lethal weapons and tear gas in overcrowded spaces), causing physical injuries with persistent sequelae. The Court also evidenced a deficient evidentiary assessment by lower level judges, which affected the right to effective judicial protection. In view of this, the Court determined the objective responsibility of the State, as well as the need to adopt comprehensive reparation measures (medical attention, public apologies, criminal and administrative investigations), and structural measures of non-repetition, including institutional training and compliance with constitutional and international standards on the legitimate use of force and conditions of detention. The sentence reinforces that the prohibition of torture and cruel, inhuman or degrading treatment is absolute, non-derogable and requires an effective state response, both preventive and restorative.
LA VIOLENCIA PSICOLÓGICA EN EL MARCO LEGAL ECUATORIANO: REVISIÓN DE SU TIPIFICACIÓN EN RELACIÓN A SU PROPORCIONALIDAD Y SANCIÓN EN GUAYAQUIL DURANTE EL AÑO 2021.
(2025-07) Mario Alfredo Yumaglla Guagcha; Carmen Amelia Suplewiche Jiménez
The general objective of this research was to demonstrate that the penalties established in the Comprehensive Organic Criminal Code for the crime of psychological violence should be reviewed, taking into account the high rates of this crime currently occurring. Therefore, the appropriateness of increasing the penalties established in Ecuadorian criminal law was evaluated. To this end, a descriptive study based on a qualitative approach was conducted to examine the structural causes of psychological violence, as well as the short, medium, and long-term consequences suffered by the victim. The results of the research demonstrate the appropriateness and necessity of increasing the penalties for the crime of psychological violence, taking into account the high rates of this crime in Ecuador and the fact that this crime becomes a precursor to other forms of violence, such as physical and sexual violence.
LA EXCEPCIÓN COMO REGLA: DESNATURALIZACIÓN DE CONTRATOS OCASIONALES Y PRECARIZACIÓN EN EL SECTOR PÚBLICO
(2026-04) MARIA AUXILIADORA CASTILLO GUTIERREZ; BRITHANY VERONICA QUEZADA SORIANO
The study analyzes the use of occasional service contracts in the Ecuadorian public sector, revealing their progressive distortion. Although this contractual modality was originally conceived as an exceptional mechanism to address temporary needs within public institutions, in practice it has become a recurring form of employment used to cover permanent functions. Based on a qualitative approach of a legal-dogmatic and jurisprudential nature, the study examines the current legal framework, the criteria established by the Constitutional Court of Ecuador, and specific cases that reflect this issue. The analysis shows that the extension of these contracts beyond the established limits constitutes a clear indication that institutional needs are no longer temporary. In this regard, the Ecuadorian Constitutional Court has held that the abusive use of this contractual form amounts to a form of labor precarization. The findings identify specific patterns of distortion, including the successive renewal of contracts, the assignment of permanent duties, and the failure to initiate merit-based and competitive selection processes. Taken together, these elements reveal an administrative practice that prioritizes flexibility over job stability. Furthermore, the case analysis demonstrates that even the activation of constitutional mechanisms does not guarantee effective protection, as terminations occur without any regularization process. This reflects a gap between the legal framework and its practical implementation. Finally, it is concluded that the problem lies not only in the interpretation of the law but also in the absence of control and enforcement mechanisms within the human talent management units of public institutions. Therefore, the study proposes measures aimed at strengthening institutional oversight and establishing reforms that clearly define the use of this contractual modality, in order to restore its exceptional nature and guarantee labor rights in the public sector.
ANÁLISIS DE LA CONCLUSIÓN DE LOS PROCESOS DE EJECUCIÓN CONFORME EL ARTÍCULO 395 DEL COGEP APLICADO EN EL SISTEMA JUDICIAL ECUATORIANO DESDE SU VIGENCIA
(2025-04-17) ROY MARLON ORDOÑEZ RIOS
The present study examines the procedural challenges associated with the enforcement of pecuniary obligations, focusing specially on Article 395 of the Organic Code of General Procedures (COGEP) and the absence of regulatory provisions concerning the possibility of recalculating default interest in enforcement proceedings subsequent to the issuance of an order of execution. Article 395 of the COGEP permits the conclusion and dismissal of enforcement actions if the debtor demonstrates fulfillment of the obligation as quantified in the order of execution. Employing a qualitative approach, the study analyzes the conceptualizations of various legal scholars regarding obligations, delay, default, and default interest. It is thereby established that default gives rise to a distinct obligation which the debtor is legally bound to satisfy. The analysis concludes that the current procedural framework fails to ensure adequate redress for the harm caused by delays in the fulfillment of obligations, as the closure of proceedings without an updated calculation of default interest effectively results in the remission of uncalculated interest amounts. Although the National Court of Justice has issued non-binding opinions acknowledging the possibility of recalculating interest where a significant period has elapsed since the noncompliance with the order of execution, such interpretative discretion is left to each judge, thereby generating legal uncertainty. Consequently, the study advocates for the reform of Article 395 of the COGEP to explicitly provide for the recalculation of interest, including the determination of an additional timeframe within which compliance with the updated calculation may be effected.
LA EFICACIA EN LAS MEDIDAS DE CONTROL DE ESTADO RECTOR DE PUERTO QUE EJERCE LA AUTORIDAD MARİTIMA DEL ECUADOR SOBRE NAVES DE BANDERA EXTRANJERA QUE VISITAN PUERTOS NACIONALES.
(2025-08) KLEBER ENRIQUE BUSTAMANTE PINCAY; ÁNGEL LEONARDO MARTÍNEZ LEÓN
This paper discusses the effectiveness of Port State Control measures taken by the Ecuadorian Maritime Authority on foreign vessels visiting national ports. The international and national legal framework includes international standards and 1egulations such as the 1974 SOLAS Convention, the United Nations Convention on the Law of the Sea and the Viña del Mar Agreement, and the Code for the Investigation of Maritime Casualties and Incidents. The methodology used in this study includes a documentary review, statistical analysis of inspections conducted between 2023 and 2024, and an assessment of maritime casualties recorded during this period. The results showed that current inspection coverage is approximately 10% of foreign vessels entering Ecuadorian ports annually. The limited number of inspections is due to a lack of trained personnel to perform other military and more attractive roles. Therefore, Ecuador meets international requirements but does not conduct sufficient inspections. Therefore, it is recommended to increase the number of inspectors, assign them to busier ports, and ensure interoperability with the information systems of neighboring countries.
IMPLICACIONES JURÍDICAS DEL PROCEDIMIENTO DIRECTO EN LAS GARANTÍAS DEL DERECHO A LA DEFENSA
(2025-08) DAVID ESTACIO MEDINA; DIEGO HERNANDEZ VEGA
This article analyzed the legal implications, of the application of the direct procedure regulated in Article 640 of the Comprehensive Organic Criminal Code, conceived as an exceptional means for prosecuting flagrant crimes with certain legal exceptions. Its application raises certain questions regarding the application of constitutional guarantees involving the right to defense. Through this documentary review, we analyze the challenges related to the application of this procedure, which is characterized by the principle of expeditiousness and the restriction of procedural phases. This research is developed within a qualitative, dogmatic, guarantor-based and constitutional approach that, through research, examined the limitations inherent to the procedural figure of the direct procedure, in relation to the reduction of time limits, phases of the process, and the effectiveness of technical or material defense. The results of the investigation showed that the procedure serves a valid legal purpose aligned with judicial effectiveness, but that it must be strictly applied in coordination with its exceptional criteria, so that procedural speed not prevails over the rights of the accused. Consequently, the guarantee interpretation must be harmonized with the effectiveness of the judicial system and the validity of due process.
Criterios utilizados por la Corte Constitucional del Ecuador para la determinación de la compensación en equidad dentro de la reparación integral.
(2025-07) CARELIS ABIGAIL ORDÓÑEZ BERMEO; MICHAEL DANILO MOREIRA FRANCO
The present article constitutes a study on the implementation of the principle of equity within the Ecuadorian justice system, specifically as a mechanism of judicial interpretation employed by the judges of the Constitutional Court of Ecuador to determine equitable compensation as part of the comprehensive reparation to victims of human rights violations. The analysis focuses on the parameters identified in legal doctrine for the application of reparation based on equity, namely: motivation, individualization, and exceptionality. Furthermore, a case law analysis is conducted to assess whether the aforementioned or other criteria are applied by the judges of the Court, thereby determining the objectivity or subjectivity of their decisions. Within this context, the study concludes that the identified parameters are often disregarded, underscoring the need to further develop the substantive content of the criteria for equitable compensation. It is proposed that additional elements be considered, such as the victim’s situation of vulnerability, the length of time elapsed before reparation was granted, among others.
LA INSEGURIDAD Y LOS ESTADOS DE EXCEPCIÓN EN ECUADOR, TENSIÓN JURÍDICA ENTRE LA EMERGENCIA PERMANENTE Y LA RESTRICCIÓN DE DERECHOS CONSTITUCIONALES
(2025-05) HERNAN CALERO
This paper addresses the repeated use of the State of Emergency in Ecuador as a response to problems of citizen security and social unrest. It is based on the premise that this legal entity, conceived by the Constitution as an extraordinary mechanism, has been used frequently and without sufficient justification, resulting in a distortion of its essence and a direct violation of democratic and constitutional principles. This article examines how the Executive Branch has systematically resorted to this measure, even without complying with the material requirements established in Article 164 of the Constitution. It also highlights the limited effectiveness of constitutional oversight exercised by the Constitutional Court, whose ex post, non-preemptive nature has allowed unconstitutional measures to remain in effect for weeks, affecting fundamental rights. This paper concludes that the problem lies not in the existence of the State of Emergency but in its excessive use and the absence of effective regulatory limits and controls.
IMPROCEDENCIA DE LA EXCEPCIÓN DE EXISTENCIA DE CONVENIO ARBITRAL EN LOS PROCESOS DE EJECUCIÓN.
(2025-04-17) DEBRA TERAN VINUEZA; RONNY RODRÍGUEZ GARABI
In a recent amendment to article 373 of the ecuadorian Code of civil procedure, the existence of an arbitration agreement defense in execution proceedings such as the mediation act, the pledge contract, the sale contracts with reservation of title, the extrajudicial and judicially approved transaction, and the open or closed mortgage were added as one of the defenses against the writ of execution. The problem arises at the moment of determining who has the jurisdiction to resolve this defense, because when we are in an execution proceeding, the ordinary civil judge has jurisdiction to resolve such defense, nevertheless when dealing with an arbitration agreement, the ordinary judge can only limit himself to determine if it exists or not, and if it does exist, he must inhibit himself and refer the process to an arbitration court so that it may resolve it due to the Kompetenz-Kompetenz principle. Once the process has been referred to an arbitral bench, the judge must rule on the merits of the case, unnecessarily suspending the writ of execution of a right that has already been previously recognized in the enforcement title, disregarding the legal nature of the execution proceedings and violating the rights of the parties, also without considering that the arbitrators do not have coercive powers and therefore could not enforce the same, so it is suggested to make an amendment to the COGEP removing this defense or granting coercive powers to the arbitral bench.
Principios En La Contratación Pública Y La Discrecionalidad Al Evaluar Ofertas En Procedimientos De Subasta Inversa Electrónica.
(2025-01) LIZBETH GUILLÉN MONTERO; CARLOS LEÓN SALAZAR
The Subasta Inversa Electrónica -SIE- is a fundamental tool in Ecuadorian public contracting, aimed at guaranteeing the optimization of public spending under principles of transparency, efficiency and equity. However, the exercise of administrative discretion during the bid evaluation stage presents significant challenges that expose objectivity and legal certainty in these processes to risks. This research analyzes the regulatory deficiencies related to administrative discretion of the Technical Commission in the issuance of pre-contractual qualification reports during the pre-contractual phase and its impact on the transparency and efficiency of the process. Through a legal-critical approach, it identifies regulatory gaps that foster arbitrariness and compromise the guiding principles of public contracting. It is concluded that it is necessary to establish clear guidelines to regulate the use of discretion, promoting motivated and well-founded decisions. In addition, the paper proposes normative recommendations to strengthen confidence and legal security in Ecuadorian public contracting.

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