Maestría en Derecho Constitucional
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Item La implementación de un sistema bicameral en la Asamblea Nacional de la República del Ecuador(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho Constitucional, 2023-01) Guamán Gaibor, Washington Oswaldo; Guerrero Zúñiga, Edison RamiroThe unicameral parliament entails difficulties and disadvantages that reduce the fulfillment of the functions that the political system expects of it. The purpose of the investigative work was to analyze the contribution of the implementation of the bicameral system in the legislative function of Ecuador. The approach used was of a mixed type, with the collection and collection of information and data for analysis. It was also quantitative and focused on collecting documentation and skills towards the phenomenon addressed. An analysis of Comparative Law was carried out, with a descriptive typology. Documents on the Ecuadorian and international legislative system were analyzed. The population were professionals of Ecuadorian law; a convenience sample of 22 law professionals, familiar with the constitutional branch, was taken. A self-administered questionnaire was designed, with simple selection, with YES or NO response options, with 16 interrogative formulated items. The results of the survey showed, for the dimension advantages of the bicameral system, a unanimously positive aptitude of the surveyed sample with respect to the formulated indicators. In the dimension obstacles to a bicameral reform, 77.3% stated that the Ecuadorian Constitution does have a flexible structure that makes a constitutional reform that establishes a bicameral legislature feasible. In the problems dimension of the unicameral legislative function in Ecuador, the respondents almost unanimously agreed with the existence of all the problems reflected in the indicators. For the most part, there was no positive attitude towards the possible advantages of the unicameral legislative function in Ecuador. It is concluded that, in Ecuador, a reform towards the bicameral parliament to have a National Assembly with better mechanisms for reflection and moderation in the production of laws, as well as a mechanism for the division of powers, is feasible.Item Control de la corte constitucional frente a los estados de excepción por covid 19 y posibles soluciones(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho Constitucional, 2023-01) Vaca Tarco, Walter Gustavo; Saca Balladares, Melinton FernandoThe violation of rights in all sectors in these last states of exception dictated by the national government has not been guaranteed within our Ecuadorian legal system, so within this investigation we seek to protect this right so that the well-being of people be guaranteed in times of emergency, ensuring that labor autonomy is protected so that they have a dignified life. Everything stated will be analyzed in law compared to other countries that suffered in the same way, so their experiences in relation to this topic of study will be explored and transplanted to our legal system. The subject of study is important and controversial at the same time taking into consideration that on the one hand the right to health, but at the same time the confinement of people entails a series of violated rights, including labor law in different marginal sectors. Therefore, it has been transcendental to investigate if the states of exception were analyzed from every point of view. The methodology used in the research has been with a qualitative-quantitative approach because the information is based on observation and treatment of inequality of rights through interviews and surveys; differences that have been given to people who have access to teleworking and those who fend for themselves through manual work. (self-employed); same that have been developed through documentary research From these surveys, the respondents believed that within the legal system the protection of labor law should be guaranteed in marginalized sectors in states of emergency, since not doing so violates other constitutional rights such as a dignified life, the state of emergency is accepted as health protection, however it is stated that labor law should be protected as a primary source of human beings. Therefore, based on these results, the protection of labor law in marginalized sectors of the Ecuadorian legal system is recommended.Item Mecanismos de la reparación integral a la víctima y la justicia inmaterial(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-07) Arias Galiano, Evelyn Gabriela; Arcos Morales, Jorge EnriqueEcuador has adopted integral reparation in its criminal justice system as a restorative element, which constitutes a constitutional right for victims of criminal offenses. It is expressly determined in article 18 of the Organic Law of Jurisdictional Guarantees and Constitutional Control that "The reparation will be carried out according to the type of violation, the circumstances of the facts and the impact on the life project", with which the integral reparation It must be the result of the motivation of the constitutional judge, considering as the main element the proportionality that must exist between thelegal remedies and the declaration of violation of constitutional rights. Additionally, the same normative provision recognizes the type of possible repairs, without being an exhaustive list, which is the result of the reception of international standards; Thus, mention is expressly made of the measures of: restitution of the right, economic or patrimonial compensation, rehabilitation, satisfaction, guarantees of nonrepetition, obligation to investigate, recognition measures, public apologies, provision of public services, health care, among other In such a way that the restitio in integrum provides the victims of the transgressions of constitutional rights to enjoy the right in the most adequate way possible and, as far as possible, it is restored to the previous situation of the violation, when that is possible. Therefore, the following Degree Project aims to generate a study of the genesis of integral reparation, its principles, analyze the damages present in the victims and the reparation mechanisms provided by the Law. A specialized Unit is proposed to attend to the citizenship and the victims of criminal offenses, that only this typicity be addressed since the Public Defender's Office of Ecuador does not provide the specialized and technical attention that the victims need, there is no place where the rights that assist them, the amparo professed by article 78 of the Constitution of the Republic and article 68 of the Comprehensive Organic Penal Code and provide them with the mechanism to make their claims, providing citizens with basic knowledge in legal advice.Item La memoria ancestral desde la óptica constitucional en la aplicación del pluralismo jurídico(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Colcha Pillajo, José Luis; Espín Meléndez, María CristinaThe ancestral memory from the constitutional perspective in the application of legal pluralism, is based on the Andean symbols, which mark the philosophy of the original peoples of Ecuador, which predominate throughout history, as an entity of the cultural wealth of the past, present and future. Among the most outstanding symbols we have the chacana, also known as the Andean cross, which means the beginning and the end of humanity, which is based on the four basic elements such as: water, fire, wind and earth. All this marked its limits with the solstices and equinoxes that lead to the great philosophy of: do not lie, do not steal and do not be idle. In all stages of life in the phase of the earth, there have always been regulations that mark the development and form of government of each power, which today is known as human rights and all in search of a single constitution and world since it is based on the respect of the person for his life and dignified death. In every society in the world, whether of the primitive community or the most advanced such as imperialism or communism, is controlled by legislation based either on natural law or positive law, which must be respected, because each of them have a jurisdiction. own, as well as a right, which is known as Customary Law, because it is predominated and executed by the customs and traditions of its peoples. We will summarize that the ancestral memory acts as a vital element in the elaboration of the constituted power of the world's societies, therefore, there are different forms of government and of solving the problems that we call legal pluralism, which is a set of rules, norms and legally constituted systemsItem Las acciones afirmativas como políticas públicas de igualdad de género en un estado constitucional de derechos(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-11) Chávez Toscano, Ivonne Alejandra; Vargas Villacrés, Borman RenánAffirmative action public policies, also known as positive discrimination policies, have been implemented in Ecuador with the aim of mitigating the multiple factors that cause conditions of discrimination and inequality. Most of all, those that are based on social constructions of gender. According to Rawls (2001, p. 29) “Undeserved inequalities require compensation; and since the inequalities of birth and natural gifts are undeserved, they will have to be compensated in some way”. Thus, the creation of the famous affirmative actions is justified, having as a fundamental pillar the right to gender equality that is guaranteed by the Constitution of the Republic of Ecuador. However, in recent times, several questions have emerged. For example: Why, despite legislative progress in the field of human rights, are there still such marked phenomena of inequality ?; What is stopping a change in the culture and in the symbolic references of the masculine and feminine ?; Are the affirmative actions implemented in Ecuador really working to generate gender equality or do they only reinforce sexist stereotypes ?; How do the design of public policies with a gender perspective based on social constructions of stereotypes affect the social imaginary? The problem that this research work aims to focus on is precisely the impact of the results generated by the application of affirmative actions in our environment. In such a way that it is demonstrated how those, contrary to precautionary the constitutional right of gender equality, are violating it, strengthening the social stereotypes between men and women. As explained in the previous paragraphs, affirmative actions are being created, not only in Ecuador but in various parts of the world. Thus, they are taken as a means of reducing violence and inequality between men and women. However; The present investigation will criticize that this type of affirmative action implies in itself a reinforcement of stereotypes and protection messages for a certain group that needs special measures by the State. Consequently, said situation generates contradiction and debate regarding gender equality as a constitutional right.Item Derecho a la tutela judicial efectiva y la ejecución de sentencias constitucionales(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Zurita García, Jessenia Alejandra; Altamirano Dávila, Carlos FabiánThe investigation addressed the right to effective judicial protection and its impact on the execution of constitutional sentences. As effective judicial protection is a right promulgated in the Constitution of the Republic of Ecuador, it should be fully complied with when executing a sentence, since this right, in addition to contemplating access to justice, due process, ensures that the sentence obtained in a trial is fulfilled. However, currently there are palpable cases where the role of the judge ends with the issuance of the sentence, often leaving it as a mere enunciation of rights or as a dead letter, ignoring that the work of the judge ends only with the complete execution of the sentence. The factors for which the constitutional sentences are not complied with, is the culmination of this investigation since, from that, the actions of non-compliance appear before the Constitutional Court, actions that have been filed several years ago and that to this date they do not have a solution, which is why this concern arises. What justice are we talking about when a person has not been able to have his rights repaired despite having a favorable sentence? The methodology used has both a quantitative and qualitative approach, since, with the data collected from non- compliance actions, the phenomena were interpreted based on the results and the way in which individuals experience the problem was examined. The research describes the characteristics of the unenforced sentences, exposes how the problem arises and, together with theories of various authors, consistent results have been given. With the sample obtained based on the daily experience of the Tungurahua lawyers forum, it is shown that aspects such as lack of clarity in the sentences, lack of motivation, gaps in the sentences, ambiguity, among others, are the factors for which the sentences constitutional are not followed. The investigation concluded with a revelation of the described problem, with a number of causes that have not been able to take effect despite the fact that they have a sentence issued by the competent constitutional body. However, the analysis compared to Colombian legislation provides a solution to the detailed problem, as well as mechanisms that will make our justice a true daily practice, providing citizens who trust in constitutional justice an answer to their needs.Item La acción de protección y el procedimiento probatorio en el derecho constitucional ecuatoriano(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Quishpe Cherres, Lucia Elizabeth; Jordán Buenaño, Janeth ElizabethThis research work is initially directed at the study of the jurisdictional guarantee of protective action, its origins, conceptual evolution, characteristics, as well as its normative evolution in Ecuador, linked to its effective assessment in the face of the violation of constitutional rights and its direct relationship with evidence, starting from the analysis of the principles that surround it, its characteristics and importance, as well as the constitutional right to evidence as a guarantee of proof. From which, the inexistence of a procedure that regulates the performance of the evidence in the jurisdictional guarantee of the protection action is specified. Therefore, the presumption of the lack of a specific evidentiary procedure in the jurisdictional guarantee of protection action is confirmed, which generates a violation of the right to due process. Constitutional law in its exercise of guardianship and custody of constitutional rights and constitutional guarantees is directly affected by the lack of regulation of evidence in the Organic Law on Jurisdictional Guarantees and Constitutional Control, considering that this is the law that regulates the functioning of the Constitutional Court and the procedures of constitutional control in Ecuador. Hence the need to establish a procedure for the taking of evidence in the area of jurisdictional guarantee of the action of protection. Based on the fact that this jurisdictional guarantee is characterized by the protection demanded by a different legal discourse than the one that has traditionally been used in Ecuador, it requires progressive rationality, constituting a doorway to the solution of rights violations.Item Los jueces de paz y el derecho constitucional de acceso a la justicia en Tungurahua(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Sánchez Gavilánez, Joselyn Andrea; Jordán Buenaño, Jeanette ElizabethJustices of the Peace have been incorporated into Ecuadorian Legislation, as a way to improve the Judicial System. In such case, the Magna Carta of Ecuador in 1998 (Const, 1998, art. 191) already recognizes the existence of the Justice of the Peace in charge of resolving community conflicts caused by equity. However, the application of the system demonstrated various inconsistencies and flaws and didn’t produce the desired outcome. As mentioned, in the Constitution of 2008 (Const, 2008, art. 189) the blueprints of this legal figure were restored. Paradoxically, these continued preconceptions continue being ineffective when guaranteeing optimum access to the Justice System. It is well established, that the intention of the judicial role in creating the Justice of the Peace is about gaining justice for those in rural areas of the country. However, the lack of objectivity and interest in the system doesn’t allow to break down the long existing financial and geographical barriers which separate these people from normal law. In such instances, it is vital to evaluate the legal and social aspects which impact on their effective application. In the same way an investigation is required to highlight the range and execution of conflict resolution through the Justice of the Peace. In this ruling, the Justice of the Peace is charged with issuing conciliation acts and equity resolutions to solve the dispute. However, there are no educational requirements to be a Justice of the Peace, in such case the lack of an academic background leads to a society doubting the effective protection and legal security of their rights. Furthermore, there doesn’t exist a legal measure to resolve such cases in the instance of one party not complying. Under these considerations, it is necessary to know the use of these regulations. A measure that will contribute with the State to adopt such necessary measures will benefit the most forgotten in our society, those in rural areas and those in need of means to effectively access their right to the legal system.Item El error inexcusable y la vulneración a la seguridad jurídica en la zona 3 del Ecuador(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Lascano Cevallos, Héctor Rolando; Tite, Segundo RamitoThe inexcusable error figure presents several problems, now in a more specific field the problem is approached from the point of view of the investigation processes that may be initiated by this very serious lack, finding that can be started by this very serious fault finding that the legal order does not clearly establish the elements that make up the inexcusable error, in this sense it is important to establish what is valued and what will be penalized at the moment of judge it. In this way, this cause contains backgrounds outside the law, circumscribing political needs. Being impossible to execute it until you have an objective definition of the figure, that is to say, is not known for sure what is and the impossibility of judging something that is not typified; in this context, the oversight report expresses, “ this causal is subject to interpretations and constitutes interference with the actions of the judges”, that is to say, the Judicial Council has reached an arbitrary power violating the Legal Security, taking into consideration the Interdiction of arbitrariness in the Spanish constitutional jurisprudence judgment number 67 of July 7, 1984, indicates the Legal Security as "the sum of certainty and legality, hierarchy and normative publicity, non-retroactivity of the unfavorable, interdiction of arbitrariness, in such a way that justice in the legal order and equality in freedom can be promoted". Effect of which judges infringe predictability and certainty essential elements in legal certainty; specifically, the certainty, according to the exposed, is violated when the judges do not interpret the legal system in a stable way and consistent is to say, they are tied and pressured to influence pass sentences, thus, making legal certainty affected. Chapter I of the investigation, the background from the doctrine and the context of the problem in the investigation is established in the introduction. In the justification, it is recognized why the investigation has been proposed. Chapter II, the state of the art is developed, that come to be the previous investigations that have been carried out based on the variables that are raised in this investigation, thus also the theoretical foundation is developed from doctrinal parameters, this will give strength and validity to the investigation. Chapter III, the methodology that will be applied throughout the research is broken down, the approaches to be applied are qualitative and quantitative, being important for the other sections of the research, the theoretical and conceptual foundation to achieve the structuring of the questionnaire and be applied to the sample identified by the population formula. Chapter IV presents the recommendations and the conclusions.Item El principio de eficiencia y el principio de responsabilidad social(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho Constitucional, 2020-02) Salazar Gaibor, José Carlos; Frias Raza, Sergio EdmundoThe investigation makes a precision, from the constitutional perspective, of both the principle of efficiency and the principle of social responsibility with a demonstrative scenario such as public procurement. In the constitutional life of Ecuador several significant advances have been marked in terms of determining principles that regulate public activity and the rights of the inhabitants, efficiency, social responsibility. Among others, have been consolidated as constitutional principles. Public procurement is obliged to apply the principles that govern Public Administration, since they seek common objectives, consequently, benefits and economic resources for the State. The problem is that they are not only principles, but since the Constitution of the Republic of Ecuador of 2008 were established as citizens' rights, which seek to codify recognized good practices in the field of public procurement whose purpose It is to ensure efficiency and a good quality and price ratio. For this, the principle of efficiency and social responsibility is applied directly in the public procurement of Ecuador, a State that has the National Public Procurement Service, which is legally the technical regulatory body for public procurement, as a result , the pre-contractual and contractual procedures of more than 4,000 public institutions and 300,000 suppliers are regulated, developing a specific study with this investigation at the Honorable Gobierno Provincial de Tungurahua and its cases of interest. In that context, a qualitative and quantitative research methodology was applied due to the type of documentary and legal information to be processed, allowing to observe the relationship between the principle of efficiency and the principle of social responsibility. It was also established that public procurement processes do not allow purchases at a fair price, that SERCOP issues Resolutions that favor the popular and solidarity economy sector, that SERCOP Resolutions do not facilitate the execution of public procurement processes, consequently , the content of the Resolutions of the National Public Procurement Service, the Organic Law of the National Public Procurement System and its General Regulations, do not act in strict adherence to the constitutional requirements based on finding a fair price. Finally, it is necessary to specify that it is necessary to develop a regulation that operates in strict adherence to efficiency based on its category of constitutional law.