Maestría en Derecho Penal y Procesal Penal

Permanent URI for this collectionhttp://repositorio.uta.edu.ec/handle/123456789/29523

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    El delito de usura y su impunidad por falta de prueba en la legislación nacional
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Guerra Freire, Graciela del Pilar; Benavides Benalcázar, Merck Milko
    As observed in the Ecuadorian social reality, the crime of usury is one of those that are committed on a frequent basis, this due to various factors, mainly economic, since people, unable to have all the requirements required by institutions In order to grant a loan in a formal manner, they come before usurers who grant them the amount required at a rate higher than that allowed by the State. In order to guarantee the payment of the same, the usurers request that any type of guarantees be delivered, whether real or commercial documents such as checks, bills of exchange, promissory notes, among others. Once the credit has been granted to the victim and the guarantees granted in favor of the usurer, the latter resort to unlawful practices such as blackmail, extortion and intimidation so that the debts are canceled, many of which are impossible to pay due to the high interests; there are even cases in which, despite the cancellation of the debt, the guarantees are executed with the purpose that the usurer has a greater economic benefit, which harms the victims not only economically, but also their rights are violated rights to physical and psychological integrity of themselves and their families, economic stability and the right to work. These negative consequences increase in Ecuador, due to the fact that currently the criminal type of usury established in the Comprehensive Organic Criminal Code is difficult to prove; and therefore, it is not possible to prosecute and punish those responsible in an effective manner, so that there is impunity for the victims. For this reason, it is considered essential to conduct a doctrinal, legal and jurisprudential study of the crime of usury in Ecuadorian legislation, emphasizing the evidentiary efficacy required to effectively sanction its commitment.
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    Derecho penal mínimo y justicia restaurativa
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Vargas Soria, Sandra Paola; Benavides Benalcázar, Merck Milko
    In a globalized era, in which crime is conceived as a phenomenon and a potential enemy of the States stability, punishment as a deterrent resource acts as a rule rather than as an exception. In this way the cession has been admitted and in many cases even the confiscation of rights, as a response to the crime. Restorative justice emerges in the face of this panorama, with a retrospective look at the origins of the conflict, returning protagonist to the victim and trying to find the reconciliation of the offender with the community, without pretending exclusively the punishment, but the restoration of social peace. The aim of this research is to analyze the application of minimum criminal law as an alternative to the punitive solution to favor the implementation of restorative justice channels in national legislation, as well as to account for the benefits of this resource, both for the administration of justice, as for the parties involved in the criminal process. With the support of an observation guide, the adopted resources are registered and identified during the year 2018, in some investigations and criminal proceedings in order to end the conflict; and, with the support of the experts' criterion, through a structured interview, points of view are obtained that are addressed from the different spheres in which each one of the respondents works, they can be judges, prosecutors, lawyers in free professional practice and Academics dedicated to the study of penal science. Through the obtained results, a current panorama of the problematic in study is offered. It concludes with a proposal that allows expanding the possibility of adoption and effects of a conciliatory process, with the aim that, under the agreement of the parties, punitive solutions are avoided in the processes and the victim's reparation is privileged as the essence of the system.
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    Prisión preventiva y el principio de proporcionalidad
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Serrano Abraham, Maria Eugenia; Benavides Benalcázar, Merck Milko
    In Ecuadorian legislation, as in the international treaties and agreements ratified by Ecuador, preventive detention is a precautionary measure of a personal and exceptional nature, because it restricts the right to freedom of the person. The Organic Code of Comprehensive Criminal COIP, provides for preventive detention under Article 534, establishing the requirements that must concur for it to be ordered, these being: elements of conviction that demonstrate the crime for which it is being charged, elements on intervention the defendant, they must be clear and precise, evidence to justify that the other precautionary measures are insufficient to guarantee the appearance in the trial of the defendant and that the crime is punishable by a penalty of more than one year. Likewise, the Inter-American Court of Human Rights has pointed out that it is important that alternative personal measures be rationalized, since the indiscriminate application of preventive detention contributes to increasing the levels of prison overcrowding, a feature that is characteristic of Latin American countries. Precisely, the principle of proportionality established in the Constitution of the Republic of Ecuador is the ideal mechanism that allows the judge to impose a precautionary measure observing due process. This study addresses the importance of the effective application of this principle, so that preventive detention meets a true legal nature and does not become a prejudgment or an anticipated penalty.