ANÁLISIS DE LA CONCLUSIÓN DE LOS PROCESOS DE EJECUCIÓN CONFORME EL ARTÍCULO 395 DEL COGEP APLICADO EN EL SISTEMA JUDICIAL ECUATORIANO DESDE SU VIGENCIA

Abstract

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.