DERECHO - POLÍTICA Y DESARROLLO

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ANÁLISIS JURÍDICO DE LA PRISIÓN PREVENTIVA EN LA REFORMA DEL CÓDIGO ORGÁNICO INTEGRAL PENAL DEL AÑO 2021 Y LINEAMIENTOS JURISPRUDENCIALES
(2023) ROXANNA LESLIE RIVADENEIRA ARIAS; KAREN ELIZABETH MANGA HANNA
The purpose of this study is to demonstrate the tensions generated by the preventive detention measure between procedural effectiveness, freedom rights and the presumption of innocence. Based on this premise, the Public Defender's Office considers that preventive detention exists in an abusive and indiscriminate manner, echoing the criticisms given by the Inter-American Commission on Human Rights in the application of the measure, which should be necessarily proportional, necessary and except; thus allowing the prosecutor's action in flagrant proceedings, that the holder of the public exercise requests the judge the application of preventive detention almost in a general way, which causes the violation of the principle of innocence, excessive and arbitrary use of the precautionary measure Therefore, the seriousness of the situation has allowed the development of broad and complex jurisprudence to improve the usefulness in practice of several international standards, allowing the present work to systematize relevant aspects of pretrial detention, from the internal criminal procedural configuration and thus allow the rationalization usefulness of the measure injurious to the right to liberty and presumption of innocence of the prosecuted subject. Finally, it is recommended in this study to be focused on the proper use of pretrial detention by those in charge of justice administrators, and grant future lines of research to provide inputs based on the conclusions of this work, guides that will allow focus on the decision-making of criminal policies evidenced in Ecuador.
Implementación y operación de escáneres en puertos delegados en Ecuador y su incidencia en la ejecución de los contratos de Asociación Público-Privada (APP)
(2023) Ana María SOTOMAYOR TAPIA; Lizeth Carolina SÁNCHEZ BAZANTES
This paper seeks to analyze the implementation and operation of scanners in ports delegated to foreign investment and how it affects the execution of Public-Private Partnership (PPP) contracts. To this end, a review of the clauses of such contracts, applicable legal regulations, comparisons between the delegated ports in the country, as well as interviews with experts, were carried out in order to learn about the contractual obligations of the delegate and the State. Some contracts, such as the one signed by Autoridad Portuaria de Puerto Bolivar (Appb) and Yilport Terminal Operations (Yilportecu) S.A., did not provide for investment in the estimates and/or technical and quantity conditions required by the Government. Other delegated ports are operating scanners, such as DP World Posorja S.A. and Terminal Portuaria de Manta TPM S.A (TPM); and those that are still in process, such as Yilportecu, expressed their concern about the operation of these scanners so that it is not the delegated manager who operates such equipment, despite the fact that this is a non-delegable attribution of the National Customs Service of Ecuador (SENAE). In addition, it was verified that in cases such as Contecom Guayaquil S.A., an addendum to the contract was made and in Andipuerto Guayaquil S.A., a renegotiation process is underway. It is concluded that the implementation of this non-intrusive technology is necessary, however, the mechanisms used violate the contractual rights of some PPPs, due to the requirement of an investment not contemplated; and, for the provision of a service that cannot be attributed to the delegated manager.
LA RESPONSABILIDAD DE LAS PERSONAS JURÍDICAS EN EL DELITO DE LAVADO DE ACTIVOS SEGÚN EL ART. 49 DEL CÓDIGO ORGÁNICO INTEGRAL PENAL Y SU COMPARACIÓN ENTRE LAS LEGISLACIONES DE LAS REPÚBLICAS DE ECUADOR Y COLOMBIA
(2023) MIGUEL ANGEL ANDRADE ORTIZ; SERGIO FABRICIO CAICEDO MARZO
During the elaboration of this investigation, we can read that the people use companies or societies for the illicit purpose of money laundering, but the comparative analysis is clearly defined and it tries to clarify through the comparison method, the imputability of the structures business, because despite the fact that the history of some legislations, we can read that the companies doesn’t have punishment in Law 599 of 2000, valid in the Republic of Colombia, that legal persons are not criminally relevant subjects. An obvious ambiguity to this subject, because it always ends in a pecuniary penalty for the companies. Nowadays, one particularity that show up is the social vision, that the Colombian State provides towards all the companies established in this jurisdiction, it is the total responsibility of the legal representatives. The opposite is described in art. 49 of the Ecuadorian Criminal Law, which clearly attributes criminal responsibility to legally constituted people in the Republic of Ecuador, especially in crimes against the national financial system, which is very advanced at this point of time. In 2 this review based on a comparative methodology, we can be evidenced the spirit of the laws into the two nations, specifically in the enforcement.
ANÁLISIS DE LOS ELEMENTOS FORMALES Y MATERIALES, COMO CORRECTA MOTIVACIÓN A LA APLICACIÓN DE LA MEDIDA CAUTELAR DE LA PRISIÓN PREVENTIVA.
(2023) RIOFRIO OLAYA KLEBER ALEXIS; QUEVEDO PÉREZ RUTH JACQUELINE
The academic article analyzes the necessary elements for the correct motivation of the precautionary measure of preventive detention in criminal judicial units. These elements focus on the principles of necessity and proportionality in accordance with international standards and the high courts of our country, which are contrary to current 2 procedural practices, also discusses the origins of preventive detention in Ecuador and the importance of the presumption of innocence and the principle of motivation in this legal system. It uses a rationalist approach and a deductive methodology, analyzing cases and exploring binding jurisprudence on the use of preventive detention. The main findings of the article are that a correct motivation for the application of preventive detention is essential to respect the fundamental guarantees of due process and human rights. The use of pre-trial detention should be exceptional, and should only be used when necessary to ensure the proper functioning of the criminal process. Lack of motivation in preventive detention decisions can lead to a violation of fundamental rights and an abuse of the prison system. The correct motivation should prioritize the application of the principle of proportionality and necessity as the central axis for an analysis of the requirements of preventive detention. In conclusion, the article highlights the importance of motivation and justification in decisions related to pretrial detention and how its correct application is essential to respect the fundamental rights of the accused and guarantee the effectiveness of the criminal process. Key words: motivation, pretrial detention, requirements, elements.
LA MEDIACIÓN PENAL COMO HERRAMIENTA RESTAURATIVA EN LOS ADOLESCENTES INFRACTORES DE ACUERDO CON LA LEGISLACIÓN ECUATORIANA
(2023) JENIFFER KARINA PAZ HIDALGO; JOSÉ JUAN YUMISACA NARANJO
This paper addresses restorative justice in the juvenile field as a process that takes place after breaking human ties which is a crime. Through the review of literature and doctrinal concepts, it will define what restorative justice is, its main characteristics and tools to carry out a restorative process; on the other hand, it will describe how restorative justice is introduced in adolescent offenders; and, thirdly, it will establish whether criminal mediation as a restorative tool is being applied in juvenile justice cases. Finally, among the conclusions reached is that the restorative model has not been adequately socialized in the country, and as a consequence, justice administrators do not accept the restorative process because they think that the crime will remain in impunity.
LA EFECTIVIDAD DE LA PRUEBA TESTIMONIAL DE LA VÍCTIMA EN LOS PROCESOS PENALES POR DELITOS DE VIOLACIÓN EN EL ECUADOR
(2023) Jina Janeth Alvarado Olmedo; Washington Javier Alvarado Olmedo
Through this titling work, we identified the need and benefit of the implementation in the Comprehensive Criminal Organic Code of evaluation criteria regarding the testimony rendered by the victim within a criminal proceeding initiated for the crime of rape, and we did so through a complete study of the doctrine and jurisprudence that addresses the issue of the probative effectiveness of the testimony of the victim of the crime of rape, the need for validation of the information obtained from the testimony of the victim, the principle of innocence and the evaluation of the evidence. Which allowed us to determine that due to the lack of adequate evaluation criteria regarding the testimony of the victim of the crime of rape, fraudulent complaints have been allowed to prosper and that the other cases are resolved on the merit of uncorroborated information. Therefore, after applying the rationalist methodological approach and an inductive analysis based on qualitative techniques, we conclude that, when assessing the testimony of the victim of the crime of rape, magistrates must apply a special assessment standard made up of three criteria, which are: (I) Absence of incredibility of the victim; (II) Verisimilitude of the statement; and, (III) Verisimilitude of the statement, in order to achieve an objective and rational conviction of the factual circumstances of the case, which, in addition, will allow it to issue a decision with a high degree of certainty.
RELACIÓN ENTRE EL POTENCIAL CRIMINÓGENO Y LA VIOLENCIA CARCELARIA COMO FACTORES DE INCIDENCIA SOBRE EL BAJO NIVEL DE REHABILITACIÓN SOCIAL EN LA CÁRCEL NO. 1 DE GUAYAQUIL
(2023) VANEGAS MURILLO KATHERINE FÁTIMA.; LAMÁN SÁNCHEZ JHONNY BOLÍVAR
The purposo of this scientific article is to carry out an analysis of the relationship between criminogenic potential and prison violence, as incidence factors on the low level of social rehabilitation of persons deprived of liberty (PPL) in Prison No. 1. of men from Guayaquil, based on criminal dogmatics and the theory of crime. To this end, several of the issues will be addressed, considering the prison classification filters, the criminogenic potential, the factors of institutionalized violence in prisons and the results of the social rehabilitation of the PPL. In addition, some elements within the prison environment are considered, an example of which is generalized stress, prison overcrowding, arms trafficking and micro-trafficking. In this way, through a descriptive, bibliographical and analytical study, the main result is that the disruptive prison environment generates a condition of non-rehabilitation with the PPL. In this sense, it is concluded that these problems have increased due to the lack of control by the SNAI and prison guides, which affects the rights and basic guarantees of the PPL declared in national and international regulations.
“TESTIMONIO DE LA VÍCTIMA COMO ÚNICO ELEMENTO PROBATORIO EN LOS DELITOS SEXUALES”
(2023) JORDAN ANDRES CALERO VELASQUEZ; RUDDY STALYN TOMALÁ TOMALÁ
To destroy the presumption of innocence, full and sufficient proof is needed, which as a general rule is a fundamental requirement required by the Constitution of the Republic of Ecuador to motivate its resolutions in all criminal proceedings, however, there are cases in which to count. With that full and sufficient evidence it is impossible, as in cases of sexual crimes, where the victim's testimony ends up being the only evidence, therefore, the objective of this investigation lies in carrying out a critical, severe and constructive analysis in what refers to the rule of evaluation of the victim's testimony as the only evidence in sexual crimes, based on the various criteria obtained through doctrine and jurisprudence, this with the purpose of contrasting and validating the rule of evidentiary evaluation established in the Comprehensive Organic Criminal Code. In this way, we seek to provide a research work that allows it to be a reference manual for justice operators in order to avoid the discretion with which they substantiate these crimes, for that, the qualitative modality was applied with a deep doctrinal and jurisprudential analysis. and Ecuadorian regulations, based on the inductive and deductive method, which allowed us to develop each of the aforementioned study units. As a result, it was determined that the victim's testimony must comply with a fundamental standard of proof and with an evaluative criterion of a criminal legal nature, through a credibility test and other evidentiary elements.
LA LEX ARTIS COMO FUENTE DEL DEBER OBJETIVO DE CUIDADO EN EL DELITO DE HOMICIDIO CULPOSO POR MALA PRÁCTICA MÉDICA
(2022) Jessica Alexandra Vergara Letamendi; Juan Jos é Núñez del Arco Serrano
Through this degree paper, we stablish the need and usefulness of the implementation, in the Ecuadorian Criminal Code, of selection criteria regarding the lex artis applicable in cases of medical manslaughter. It was carried out through a comprehensive analysis of the doctrine and jurispruden ce about scientific evidence the standar d of conduct of a law abiding person unclear provisions in criminal codes the precision and legality principle s and the analysis of evidence according to scientific standards We were able to determine that, due to the lack of objective selection criteria regarding the lex artis available for the case study, this causes the Ecuadorian judges to be prevented from complying with the evaluation criteria stablished in the article 457 of the afor ementioned Code, regarding the current degree of scientific acceptance of the principles on which the expert reports are grounded on Therefore, after applying the rationalist methodological approach and an inductive analysis based on 3 qualitative qualitative techniquetechniques,s, wewe concludeconclude thatthat thethe judgejudgess,, whenwhen choosingchoosing thethe lexlex artisartis applicableapplicable toto thethe specificspecific case,case, mustmust analyzeanalyze thethe availableavailable options,options, theirtheir currentcurrent status,status, specialty,specialty, degreedegree ofof verificationverification andand levellevel ofof risk,risk, includingincluding thethe factualfactual realityreality ofof thethe circumstancescircumstances ooff eacheach case,case, inin orderorder toto objectivelyobjectively selectselect thethe lexlex artisartis thatthat bestbest suitssuits thethe factualfactual circumstancescircumstances ofof thethe casecase underunder theirtheir judgmentjudgment,, which,which, inin addition,addition, willwill allowallow them,them, toto issueissue aa rulingruling accordingaccording toto highhigh scientificscientific andand objectiveobjective standardsstandards..
La efectividad del uso de la firma electrónica en los procesos de contratación pública en el Hospital General Guasmo Sur
(2024) Maria Gabriela Hernández Alvarado, Mgs.; Jennifer Dayana Pozo Garcés
At present, the use of the electronic signature in public contracting processes aims to guarantee transparency in said processes in order to prevent acts of corruption and reach transparent contracting, which will allow the opening of a new channel of communication with suppliers. in an agile, safe and organized way, reducing the processing time of the contracting procedure, however, there are ambiguities that prevent a good use of the electronic signature in public contracting processes at the General Hospital Guasmo Sur, thus violating the principles and constitutional guarantees that revolve around public purchases. Therefore, the objective of this study is to provide a safe and efficient way to sign documents online, which can save time and costs associated with signing paper documents, as well as providing greater security and authenticity, since it is possible to verify the identity of the signatory and guarantee the integrity of the document. This work follows the postulates of qualitative-quantitative research and scientific and empirical methods were used (application of surveys that were answered by 40 public servants who work at the Hospital General Guasmo Sur. With the results obtained, it is concluded about the importance of the use of electronic signature in the public contracting processes of the Hospital General Guasmo Sur in order to guarantee the transparency, efficiency and integrity of the relevant documents, this being a good sign of acceptance for compliance with current legal regulations.
LA NATURALEZA JURÍDICA EXIMENTE DE LOS PROGRAMAS DE CUMPLIMIENTO A NIVEL IBEROAMERICANO, EN CONTRASTE CON EL EFECTO DE ATENUANTE QUE LE OTORGA EL COIP
(2022) Pedro Cododac Castillo Díaz; Mario Guillermo Lemos Bayas
In the present work, we determined the existence of the legal nature exempting the implementation of compliance programs to legal persons, based on a comparative analysis between the laws of Ecuador, Spain, Chile and Argentina, which allowed us to determine that due to the lack of prolixity of the Ecuadorian legislator, in the country does not exist a regular incentive regarding the implementation of prevention models, therefore, we evidence the need to create a new and real legislative incentive regarding the implementation of compliance programs. Consequently, after applying a rationalist methodological approach and inductive reasoning with qualitative techniques, we conclude that when companies insert compliance programs into their structure, they do so with the aim of adhering their activity to the legal system and eradicating any organizational defect that exists or may exist, that is, disappears the need for penal repression.
LA EFICACIA DE LA PRUEBA Y LA RESPONSABILIDAD PENAL DE LA MALA PRÁCTICA PROFESIONAL MÉDICA DENTRO DE LA LEGISLACIÓN ECUATORIANA.
(2023) ALMEIDA ZAMBRANO ANDRÉS JONATHAN; PAREDES SÁNCHEZ LUIS DANIEL
On August 10, 2014, the Comprehensive Criminal Code entered into force, which introduced new criminal legal figures in accordance with the social demands of Ecuadorian culture and society. One of them was the classification of professional malpractice, conceived as a modern concept of imprudence and defined as the violation of the objective duty of care that health professionals must have towards the patients they must attend daily. With the validity of the aforementioned criminal type, it was identified that there is a reduced national production of studies on the crime of malpractice and, even to a lesser extent, on criminal liability in professional medical practice that allows providing a guide to judges, prosecutors, and lawyers on the scope of this criminal problem. In this sense, the need to carry out a study that covers the analysis of this crime and assess the effectiveness of the evidentiary system in order to establish criminal responsibility was considered. To conduct this study, a descriptive, bibliographical, and analytical study was developed with the aim of verifying the probative effectiveness in this crime and determining the existing legal vacuum. Starting from the study and analysis of various positions of various jurists, in addition to applying an interview to an expert on the subject, to examine and assess the evidence and how it helps to verify and determine criminal responsibility in the crime of malpractice.
EL PAGO DE LAS REGALÍAS EN PEQUEÑA MINERIA, UNA AFECTACION A LOS PRINCIPIOS DE PROPORCIONALIDAD, IGUALDAD Y LIBRE COMPETENCIA.
(2023) MONICA INES ROMERO FAJARDO
"This essay advocates for the criterion that the payment of royalties for mining activities should be structured in the same way as it is done for medium-scale mining. This change in structure is in response to the need to ensure the application of constitutional principles of proportionality, equality, and free competition in mining law. This is seen as a safeguard to enable companies in Ecuador to maintain a sustainable balance, thereby ensuring their own existence in the market and the connected production chain. It is necessary and urgent to propose a reform to the mining law."
LA GARANTÍA DE LA MOTIVACIÓN EN EL DEBIDO PROCESO DE LOS SUMARIOS ADMINISTRATIVOS EN LA POLICÍA NACIONAL DEL ECUADOR: ESTUDIO DE LA ZONA 8. PERÍODO 2018-2022
(2026-01) PEÑAFIEL LEÓN LORENA ELIZABETH; VELEZ OCHOA GABRIELA ANDREA
Reviewing the legal reality, it can be observed that the system has been paying special attention to the mechanisms responsible for guaranteeing the right to motivation in judicial decisions; in order to respect the due process, especially in the administrative summaries of the National Police of Ecuador. To the point that respect and reasonableness of this established and protected right in constitutional regulations are taken into account. The objective of this research is to analyze motivation in administrative resolutions as a guarantee of due process in administrative summaries in the National Police of Ecuador: Study of Zone 8. Period 2018-2022. The methodology was field-descriptive with a qualitative approach. Among the results, it is pointed out that due motivation is a mandatory right assumed by the administrative authority. Concluding that the principles of due process must ensure and protect the effectiveness of citizen’s rights.
ROMPIENDO BARRERAS CONTRACTUALES: UN ENFOQUE INTEGRAL PARA ABORDAR LAS TENSIONES EN CONTRATOS DE CONSTRUCCIÓN CON DISEÑO INSUFICIENTE Y ESTRATEGIAS PARA SU SUPERACIÓN
(2023-11) DAYANA DENISSE CARRASCO ROMERO
This paper, in a detailed and thorough manner, contextualizes and analyzes the problems inherent in construction contracts characterized by insufficient design. Likewise, it identifies design limitations as the basis for conflicts, delays and deficiencies in the contractual management of construction projects. It also proposes a comprehensive approach that not only seeks to address the immediate problems generated by poor designs, but also establishes long-term strategies to overcome these barriers in an effective and practical manner.
INDETERMINACIÓN DE LA RESPONSABILIDAD DE LOS ADMINISTRADORES APARENTES DE LAS SAS EN ECUADOR
(2023-06) ROBLES RAMÍREZ JIMMY ALEJANDRO; CARRASCO PAZ IVÁN ANDRÉS
The 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.
“ANÁLISIS DE OBSTÁCULOS Y OPORTUNIDADES EN LA PARTICIPACIÓN DE LAS EMPRESAS EN LOS PROCESOS DE CONTRATACIÓN PÚBLICA EN ECUADOR: PERSPECTIVA Y SOLUCIONES”
(2023-12) MARCO DAVID AYOVÍ PARRA
Este trabajo no solo se limita a señalar los problemas, sino que aspira a contribuir de manera constructiva al fortalecimiento de la relación entre el sector privado y el Estado. Se argumenta que superar estas barreras no solo beneficia a las empresas, sino que también tiene implicaciones significativas para el desarrollo económico y social del país. La mejora en la participación empresarial en los procesos de contratación pública puede generar un impacto positivo en la eficiencia, la competitividad y la innovación, promoviendo así un entorno propicio para el crecimiento sostenible y el progreso general. En resumen, este estudio busca no solo destacar los desafíos, sino también proporcionar perspectivas y recomendaciones que contribuyan a un sistema de contratación pública más inclusivo y eficiente en Ecuador.
Correo electrónico AsuntoRe: Devolución de libro Buenas tardes, Alisson: Está bien, una vez que retomemos las actividades normales, podrá realizar la devolución o renovación del libro. Saludos cordiales.
(2023-12) JOSELYN ISABEL LAINES BRAVO
The document addresses the challenges and dynamics of the stock market in Ecuador, focusing particularly on the regulation and control of insider trading. It explores how the lack of quality information and transparency negatively impacts investor confidence and market development. The relevant Ecuadorian legislation is analyzed, including the Law of Securities Market (Book II of the Monetary and Financial Organic Code), highlighting the importance of protecting insider information to prevent market manipulation and unfair practices. Finally, it concludes by emphasizing the need to strengthen administrative control tools and to legal typify insider trading in the Organic Integral Criminal Code to ensure a fair and transparent market.
Análisis de la problemática de la pesca ilegal en los límites marítimos de la Reserva Marina de Galápagos, en el periodo 2018-2022.
(2023-06) Odalis Nicole Figueroa Intriago.; Alan Rodrigo Espinoza Navarrete.
Abstract This research work seeks to analyze the maritime governance framework of Ecuador within the maritime limits of the Galapagos Marine Reserve in relation to the problem of illegal, unreported and unregulated (IUU) fishing due to the presence of the fleet of foreign fishing vessels in the limits of the exclusive economic zone (ZEE) and its marine space corresponding to the continental platform during the period 2018-2022, to identify if the Ecuadorian regulations correspond to international regulatory developments to prevent, discourage and eliminate the IUU. For this, the methodology of review and comparative analysis of national and international regulations, university repositories and support of academic articles was used. Consequently, the importance of this research lies in contributing with a diagnosis of the national regulatory framework for fisheries, helping to encourage the development of more binding regulations, updated and harmonized with the international reality, whose purpose is to promote the conservation and sustainable management of marine living resources. Finally, it is concluded that national and international fishing policies are not adequate to promote the development and sustainable use of marine ecosystems and the conservation of the Marine Reserve.
ESTUDIO COMPARATIVO DE LOS ARTÍCULOS 101 Y 192 DEL CÓDIGO ORGÁNICO ADMINISTRATIVO DE ECUADOR: EFICACIA DEL ACTO ADMINISTRATIVO EN CASOS DE MEDIDAS CAUTELARES
(2022) Anthony Bryan Trujillo Collaguaso
The present research focused on the apparent contradiction between articles 101 and 192 of the Ecuadorian Administrative Organic Code (COA), which address the notification for the validity of administrative acts and the exceptions applicable to precautionary measures, respectively. The coexistence of these provisions posed substantial challenges in administrative and judicial practice. Notification is revealed as essential for the validity and effectiveness of administrative acts, being a crucial requirement for their compliance, and its absence may violate legal certainty. For the purposes of this research, a practical case of the Specialized Labor Court of the Provincial Court of Justice of Manabí was analyzed, highlighting the application of both articles of the COA to correct procedural deficiencies and protect fundamental rights. This underscores the need for a harmonious interpretation of the COA to ensure legal certainty and administrative efficiency. Providing an answer to this normative dilemma is essential to strengthen legal certainty, protect citizens' rights and improve public administration, contributing to the understanding of a relevant problem in the field of Ecuadorian administrative law and seeking the reconciliation of provisions and compliance with fundamental principles of the rule of law.

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