Maestría en Derecho Civil y Procesal Civil

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    La recusación por retardo injustificado y la seguridad jurídica
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado. Mención Derecho Civil y Procesal Civil, 2023-08) Uruchima Guapisaca, José Manuel; Poaquiza Poaquiza, Ángel Patricio
    The present investigation arises due to the lack of clarity of the regulations in relation to recusal for unjustified delay. First, recusal is a legal figure contemplated in the Organic Code of the Judicial Function (COFJ) of Ecuador. This figure grants the parties involved in a judicial process the possibility of requesting that the judge in charge be replaced by another one, as long as the reasons presented are justifiable and accepted by the other parties. This raises a question regarding the violation of legal certainty. This principle guarantees that the laws are clear and in accordance with the Constitution. Recusal is a legal recourse that allows citizens to request the removal of a judge from a case, when the judge is in any of the grounds established by law. It must also be understood that recusal should not be used as a strategy to delay the process. The Code of Judicial Organization and Functioning establishes that the recusal request must be presented within the term established by law, otherwise, it may be rejected. Article 22 of the COGEP addresses this figure, but there is controversy as to the time period in which unjustified delay is considered as grounds for recusal. On the other hand, Article 149 of the COFJ establishes that the delay in the dispatch of a case may be grounds for recusal if it exceeds 90 days plus one for every 100 pages. The lack of clarity in the regulations may contravene the principle of Legal Certainty. In order to carry out the research, a qualitative methodological approach will be used and methods such as analytical, synthetic, historical and inductive will be applied. In legal research, the qualitative approach implies an exhaustive analysis of a topic, problem or hypothesis through the collection and evaluation of qualitative information.
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    El proceso de ejecución en el Cogep, con relación a los principios de simplificación, economía y celeridad procesal
    (Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Maestria en Derecho Civil y procesal civil, 2023-08) Naranjo García, Andrés Fernando; Vayas Castro, Guillermo Santiago
    The present investigation originates from the analysis of the executory process in the general organic code of processes regarding the principle of simplification, economy and procedural speed, in this way, the inquiry about the current Ecuadorian legislative execution process has been analyzed, the different phases proposed to be an element of the procedure, likewise the execution titles that address various kinds of obligations are studied, this in the search to identify the lack of compliance with the principles referred to in the execution process. In Ecuador, great scope has been observed regarding the procedural legal system based on the Constitution of the Republic of Ecuador, established in 2008, by virtue of the fact that the supreme norm or magna carta adopted a neo-constitutionalist conception, protected new rights and included new principles that were of binding application for lower-ranking legal regulations, thus, it was necessary to repeal procedural rules, which gave rise to renewed laws and codes, such is the case of the General Organic Code of Processes that is found valid as of 2016. Article 169 of the current Constitution establishes that the procedural rules guarantee the principles of simplicity, uniformity, efficiency, immediacy, speed and procedural economy, and demonstrate that justice is not sacrificed by the omission of the procedure, which the General Organic Code of Processes, being a procedural norm, adopts these principles in its Art. 2. With the aforementioned principles and among other guiding principles, COGEP has managed to provide citizens with an agile and timely justice, however, in the execution process it is possible to warn a notorious delay, since in order to achieve compliance with the obligation contained in the enforcement title, it must overcome an endless number of phases or filters, for which it clearly violates the principle of simplification, economy and procedural speed protected by the constitutional norm and also by the Organic Code of the Judicial Function.
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    La adopción por matrimonios igualitarios y su incidencia en el principio del interés superior del niño
    (Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho, Civil y Procesal Civl, 2023-03) Vargas Castillo, Ana Gabriela; Montero Solano, Juan Pablo
    The present work of degree tries to determine if the adoption by equal marriage affects the best interest of the child. The applied study was qualitative, with a type of exploratory and correlational research about the current situation of Ecuadorian legislation that encompasses the issue of the right of adoption. The research modalities to be used are bibliographical-documentary research and the triangulation of theories. The sample is determined specifically in the sentences issued by the Inter-American Court of Human Rights. The results obtained were five documents, the sentence Atala Riffo and girls Vs Chile, the reparation fund of the case, Art. 1, 24 and 19 of the Convention. Of these, the Atala Riffo case was determined to be relevant for the study, as a specific document to carry out the analysis of the standards of conventionality. Regarding the theoretical and doctrinal foundation regarding adoption by equal marriage and the evolution of Family Law, the formation of homoparental families, like heterosexual families, have a social responsibility with the sons and daughters that comprise it. Likewise, regarding the standards of conventionality developed by the Inter-American Court of Human Rights regarding the analyzed premises, it is clear that it does not directly or indirectly affect the best interests of the child.
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    El auto de inadmisión de demanda en el juicio monitorio
    (Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho, Civil y Procesal Civl, 2023-03) Cornejo Páez, Karla Salome; Poaquiza Poaquiza, Ángel Patricio
    The inadmissibility of the demands within a trial for payment affects the decision of the interlocutory orders that are issued by the judges of the Civil Judicial Unit, which is framed in the General Organic Code of Processes - COGEP, in application of articles 147; Therefore, this investigation will be carried out in accordance with the rules of the COGEP, and based on the motivation of the Judges to issue the order of inadmissibility of the claims in payment procedure with the application of the COGEP and the Constitution of the Republic of Ecuador. . It is important to mention that in order to admit or inadmit a claim in order for payment, it is necessary to first consider the Constitution of the Republic of Ecuador, with the aim of not violating constitutional rights.
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    La práctica procesal civil en la sustanciación de la cláusula de métodos alternativos a la solución de conflictos
    (Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho, Civil y Procesal Civl, 2023-01) Erazo Rey, Rodrigo Israel; Montero Solano, Juan Pablo
    The Constitution of the Republic of Ecuador has established alternative methods for conflict resolution as application procedures subject to the law; in matters in which by its nature it can be compromised. With the issuance of the General Organic Code of Processes, it was intended to update and modernize the Procedural Law. Specifically within the substantiation of the previous exceptions, Art. 153, has as a tenth exception the existence of an agreement, arbitration agreement or mediation agreement. Agreed freely and voluntarily by the contracting parties whose purpose is that the alternative methods to the solution of the conflict are the competent ones to know and resolve the case. On the other hand, the Arts. 7 and 8 of the Arbitration and Mediation Law legislated a process to be followed, in the case of presenting a lawsuit with an arbitration or mediation clause to the judge. For which, practical cases have been analyzed, both with the code of civil procedure and the current one, in order to determine what is the way to resolve the controversy around the clause of alternative methods to conflict resolution that guarantees guardianship. effective judicial process and due process.
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    Facultad oficiosa saneadora del proceso y las sentencias inhibitorias
    (Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho, Civil y Procesal Civl, 2023-01) Lozada Mera Franklin Mauricio; Jordán Buenaño Jeanette Elizabeth
    The present research work is limited to the critical analysis of the unofficial power to clean up the process and its incidence in the inhibitory sentences, from a doctrinal and normative conception, in order to establish, from the scope of its nature and scope, the need for its normative regulation, by virtue of the problem that arises in the face of the legal vacuum. In this context, the analysis of the previous exceptions provided for in the General Organic Code of Processes is of great importance, differentiating between those that involve issues of an exclusively procedural nature, with those that refer to substantial issues of the process, since it will depend on the scope of its nature the informal action of the judge, to purge the procedural defects that prevent resolving the merits of the controversial matter. Therefore, the present study is based on four edges, namely: contrast between procedural guarantees and judicial activism; correspondence between the principle of expungement and the principle of speed and procedural economy; relationship between the informal faculty and the impartiality of the judge; and, the materialization of justice as an essential value enshrined in the Constitution of the Republic of Ecuador. In this context, in order to achieve the purpose of this research, surveys have been carried out on various legal actors, whose analysis and discussion of results allows us to conclude that it is imperative to regulate the informal faculty of a purifying nature of the process, in order to avoid inhibitory sentences that leave the procedural subjects in uncertainty, in the event of initiating a new legal action, since the merits of the litigation matter have not been resolved
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    Consecuencias patrimoniales en el ámbito civil a partir de la disolución del vínculo matrimonial por divorcio
    (Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho, Civil y Procesal Civl, 2023-01) Acurio Maldonado, Pablo Manuel; Arcos Morales, Jorge Enrique
    In the present investigation, an in-depth analysis is made of how the patrimonial consequences that occur when the marriage bond is terminated affect each of the spouses, applying divorce as a means for this fact. It is in this way that the respective analysis and study in question is based on the legal point of view protected by all the laws of Ecuador, as well as international agreements and above all civil law, which specify why the patrimonial consequences arise after the dissolution of a marital bond. Through the study we will determine what are the goods that are part of the heritage of marital and which are not, that is to say, we will determine with clarity that goods are suitable, and if these may or may not be part of this heritage, which subsequent to the respective judgments of inventory and partition of the property and obligations arising out of a marital union, later the same you must make a judgement as to the division of marital property in an equitable manner and fair based on the articles of the Constitution of the Republic of Ecuador. It applies that alternative conflict solutions must be found in search of a solution, in which the distribution of the assets of the conjugal partnership is in the most just way taking into account that the most complicated division is that of the obligations that the spouses acquire as a result of this dissolution by divorce. Finally, reference is made to the integration of the economic compensations of the weaker spouse and the aggrieved spouse as part of the known patrimonial consequences since they derive from a payment or a distribution of money occurred after the dissolution of the marital bond by divorce.