Maestría en Derecho Penal y Procesal Penal
Permanent URI for this collectionhttp://repositorio.uta.edu.ec/handle/123456789/29523
Browse
17 results
Search Results
Item La acción penal de lesiones y la vulnerabilidad de Derechos(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-11) Ubidia Gavilanes, Carlos Alonso; Bazantes Ecobar, Washington JavierThe purpose of this investigative work is to study in a descriptive way the criminal action of injuries and the vulnerability of rights, due to the obscurity and lack of norm in the private criminal action of injuries since they do not have a mechanism to resolve the situation in flagrance. In the development, the purpose of the criminal action of injuries such as the violation of rights, doctrinal concepts, jurisprudentials, causes and effects is analyzed, together with the object of the criminal process, establishing the criminal principles and rights of the active subjects and liabilities of the criminal offense that have been violated due to such legal flaws, which were analyzed based on concepts of authors and international human rights standards of which Ecuador is a part. Critical-propositive opinions are carried out in the development, with the aim of providing criteria that lead to avoid existing asymmetries due to state legal persecution..Item Los Derechos humanos y la prevención del delito de Femicidio en el Ecuador(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-11) Quiñones Escuntar, Galo Alexander; Bazantes Ecobar, Washington JavierFrom the doctrinal perspective, the crime of femicide or feminicide comprises one of the most serious realities facing societies in the world, being the most brutal form of violence against women that has been generated from other phenomena such as machismo, patriarchy, gender roles and stereotypes, many of which are perpetrated, repeated and accepted by members of society. Although this type of crime has been generated throughout the world, Latin America holds the saddest record of being the Region where more femicides are committed, since 15 of the 25 countries where more femicides are committed are in this Region, which forces government authorities and society in general to look for mechanisms that mitigate this phenomenon. In Ecuador, the situation is not far, since in recent years there has been a growth in cases of this crime, being the inefficient state strategy, since it has only sought to combat the phenomenon based on punishment, by criminalization of the crime, but nothing has been done to strengthen the preventive aspect. In this context, some of the public policies that have begun to be developed to prevent crime have completely forgotten the fundamental axis of human rights, which is essential to achieve the reduction and elimination of these terrible cases.Item La aplicación del principio de oportunidad y la reparación integral(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-09) Monar Castillo, Fabio Mauricio; Guevara Fuentes, José RubénThe problem regarding deficient integral reparation to the victim, has not been a generalized issue since the Integral Organic Penal Code regulates a penalty for the transcendence of the crime committed, whose sentences range from fifteen days in prison and with a ceiling of forty years if the active subject of the crime has committed an offense with some type of aggravating circumstance. However, there are crimes known to be doctrinaire as bagatelle and Ecuadorian criminal law has included speed for the actions of the prosecutor to discretionally apply the principle of opportunity; that it be understood that the discretionality to which I refer is with respect to the power granted by the norm to apply the aforementioned principle simply by looking at state circumstances, the sentence and the health condition of the active subject of the crime; leaving aside a constitutional right of the victim, to be repaired for having been affected his legal protected property; However, the latter may well claim by the civil jurisdiction, but the legislator has included several verbs in the Constitution of the Republic of Ecuador. as is the repair without further delay; therefore, the proposal is aimed at including a reform in the Ecuadorian criminal legislation that guarantees that the victim ends her ordeal in seeking to seek redress through the civil courts.Item Los delitos sexuales y el derecho a la intimidad(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Cárdenas Palma, Mercedes Fabián; Altamirano Dávila, Carlos FabiánCurrently there is a significant number of cases in which publications and disclosures of videos or photographs with sexual content are made in which the person who participates in them has not agreed to be recorded, published or disseminated, which is why there is a affectation of the rights of the person, mainly in regard to sexual freedom and the right to privacy. Despite the fact that people have not consented to the recording or the publication and dissemination of these videos or photographs, and their rights being affected, they have been unable to exercise any legal action, since currently the Organic Comprehensive Criminal Code does not it considers it an offense for the sole reason that the person has participated in them, which generates impunity and affects rights, which is prohibited by the Constitution of the Republic. he fact that, at present, there is no criminal offense within the Comprehensive Organic Criminal Code, which sanctions the recording, dissemination or publication of sexual videos of people without their prior authorization, constitutes an affectation of the right to guardianship effective, so that it generates impunity; For this reason, state measures must be taken to remedy this situation in order to protect the rights effectively as prescribed by the Ecuadorian Constitution.Item 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 MilkoAs 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.Item La suspensión condicional de la pena y el derecho a recurrir(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Acurio Ruiz, Héctor Augusto; Garzón Villacrés, Iván ArsenioItem 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 MilkoIn 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.Item La responsabilidad de las personas jurídicas en el sistema de juzgamiento ecuatoriano(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Sánchez Oviedo, Danny Xavier; Rubianes Morales, Hernán FabricioThe classic theory when teaching criminal law said that the human being is the only possible criminal imputation, based on almost a mantra: societas delinquere non potest. (Gomez-Jara, 2016). Traditionally, the criminal liability of legal persons was denied based on three arguments; societies do not have the capacity to act; they also have no capacity for guilt; and equally, they lack the capacity to suffer penalties, which leads the classical systems to punish only natural persons as authors. (Gonzales, 2012, page 79). The new horizons of Criminal Law pursue the criminality of collective entities (Gómez, 2014). The present work seeks to understand the scheme on the determination of the liability of legal persons in the Ecuadorian judiciary system, in addition to analyzing the technical difficulties that arise in the face of this determination and its criminal prosecution, with a precise vision in the Ecuadorian state from of the normative budget introduced with the Organic Comprehensive Penal Code (2014) and the model of criminal responsibility that is intended to be applied (heterorresponsibility vs. self-responsibility). In addition, the present work as a comparative law reviews criminal legislation on the subject of other countries and is strengthened by reviewing jurisprudence of supreme courts of other jurisdictions. The criminal prosecution of legal persons and the procedural principles that are applicable to them is one of the central issues on which this work focuses. (Castillejo, 2012); beginning with understanding that it is not the same to judge a natural person, that, a legal person. It is unavoidable to study the Ecuadorian criminal trial system and its feasibility to apply it against a legal person, seeking as a consequence the determination of criminal responsibility and therefore a conviction. It is necessary to be able to determine the model of criminal responsibility for collective entities in order to determine the trial process or the scope that rights have in their favor. In this perspective there are two major paths that can be chosen, either the vicarial model or transfer of criminal responsibility of natural persons to collective entities; or the model of autonomous responsibility that seeks to criminally judge a juridical person for its own unjust juridical autonomy and different from the one committed by the natural person. The present work raises if the rights and principles such as the presumption of innocence, right to due process, legal security can or should be applied in defense of collective entities subject to a process that determines criminal responsibility.Item 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 MilkoIn 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.Item El delito de estafa y la mínima intervención penal(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Vargas Galarza, Juan Carlos; Altamirano Dávila, Carlos FabiánThis investigation is based on the existence of two parts of law which provide solutions when they´re interposed these are civil lay and penal law. The actions that affect a person´ patrimony have generated a conflict to the judicial power of the State to solve because of the Constitution order to be activated as a last resource due to there is another policy that could bring the same or even better solutions to the same case. Considering that definitely fraud has damage as an intrinsic element. While in civil scope damage appears like a bad habit of consent and has as the consequence the nullity of the contract and the compensation for damage and detriment through judgement, situation that motivates to use only one part of law the patrimonial damage which comes from a voluntary act established in a contract that with an investigation is possible to suffer a bad habit against a parson´s will induced by one of the parts and no as a reason for a penal judgement. Finally a proposal is presented to reform the Integral Organic Code noting the effective application of the principle of Minimal Penal Intervention.