Jurisprudencia y Ciencias Sociales
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Item La eficacia de la aplicación del silencio administrativo en el recurso de apelación en el procedimiento administrativo(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2023-09) Gavilanes Siavichay, Leidy Aracely; Paredes Chiluisa, Tanya GiocondaThe Administrative Silence and the Administrative Appeal are regulated in the Administrative Organic Code, having their genesis in the right of Petition established in the Constitution of the Republic of Ecuador. Therefore, the research was mainly focused on investigating whether or not when filing an administrative appeal and if in course of time the respective timely response is not received within the deadlines and terms established by law, public servants apply or not effectively the figure of administrative silence in the appeal, which causes a violation of the right of effective protection that attends to those administered, among other rights recognized and guaranteed in the Constitution. For this purpose, a qualitative approach methodology was adopted, using an analytical and descriptive level that was applied to the variables of this subject of study; the interview technique was also applied for the collection of data from experts in the field of administrative law. In addition, it is evident that in the current Ecuadorian legislation, there are legal gaps that limit the correct application of the figure of Administrative Silence in the procedure of the appeals in the administrative venue, which evidences the importance, relevance, and feasibility of this research project.Item Aplicación de la consulta a un superior en los casos de dictamen abstentivo fuero de Corte Nacional(Fcultad de Jurisprudencia y Ciencias Sociales,Derecho,Maestría en Derecho Penal y Procesal Penal, 2021) Morales Zuñiga, Jhoselin Pamela; Acosta Morales, María GabrielaEXECUTIVE SUMMARY The present research work was divided into four chapters substantially complementary to the research topic; its objective is to elaborate a document of constitutional legal analysis on the application of the consultation to a superior in the cases of abstentive opinion with national court jurisdiction. Due process has always had a broad evolution in history and has been recognized as one of the primordial rights that allow respect for the rights of individuals, through a set of rules that seek to ensure their effective protection. In addition to the above, it is of absolute importance that such guarantees are enshrined in the Constitution of the Republic which, being the hierarchically superior norm, means that such rights are directly applied. Then the international conventions and treaties have not been left aside, as can be seen, in Ecuador there is a fiscal monopoly, a situation where the only provider of a good or service is the State. Thus, the government seeks to obtain income and dominate a sector that may be strategic for it. In this study, the methodology is qualitative, an analysis was made of the application of the different cases of abstentive opinion with national court jurisdiction, procedural subjects in the different hearings of Formulation of Charges, which showed the qualities that affect when applying the consultation to a superior, and in the quantitative part, the abstentive opinion with national court jurisdiction was counted; likewise, the xvii Inductive-Deductive, Analytical-Synthetic, Historical-Logical methods were used. Therefore, the expected result is to know to what extent the abstentive opinion of the Attorney General in cases of National Court jurisdiction affects the right to appeal, nowadays, in the Constitutional State of rights and justice, causing a violation of the principle of Procedural Challenge, since the operators of justice of the National Court, upon learning of an Abstentive Opinion by the Attorney General of the State being its highest authority, have no one to whom to raise the opinion for consultation, in order to revoke or ratify it.Item La presunción de legitimidad del acto administrativo y la tutela judicial efectiva(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-07) Mayorga Idrovo, Marlon Israel; Vayas Castro, Guillermo SantiagoThe present investigation demonstrates the abuse in the actions of the public administration, under a focus on administrative acts and the legitimacy that they have been endowed with. In this sense, it is identified within the Ecuadorian legislation the evident problems before the challenge of these acts. The disclosure of the problems raised will be dealt with through the analysis of judgments issued by the Administrative Contentious Court; as well as those of a Constitutional nature. On the other hand, the legitimacy of the administrative act is addressed in the legislation of other countries, especially Colombia and Argentina. With the aim of comparatively evaluating the treatment that each jurisdiction maintains in this regard. In this order of ideas, it is essential to analyze the normative treatment that currently has the challenge of administrative acts. More than anything when the Constitution itself assumes that the actions of the Public Administration correspond to the protection of the “common good”. Consequently, administrative acts are endowed with a presumption of legitimacy under which their execution is immediate by those administered; to whom, on countless occasions, rights are violated under the issuance of an administrative act. As a result, a State that becomes a Judge and part of its own decisions, making true justice impossible, which even outrages the principle of innocence of those administered. "The innocence of every person will be presumed, and he will be treated as such, as long as his responsibility is not declared by means of a firm resolution or an executed judgment" (Const, 2008, Art. 76). Although it is true, the State's duty is to guarantee the rights of its administered parties. However, the partiality and iniquity of justice in the face of discretionary events in the public administration is evident, demonstrating little objectivity in the justice system. In this perspective, public administration has led society to doubt the principle of effective judicial protection, legal certainty and due process, which demands a true democratic and constitutional State of rights and justice. Therefore, this study allows us to elucidate the true ethical and legal problems that involve the exercise of public administration through the State.Item La agresión con agentes químicos y la tutela judicial de la víctima(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2018-11) Zurita Bastidas, Carlos Xavier; Sánchez Espín, Jorge EnriqueThe present investigation is based on not only seeking a comprehensive reparation of the victim, but is aimed at ensuring that the constitutional rights of victims are respected in a criminal proceeding, but also through a legal reform to achieve that The aggressor receives a sentence in accordance with the damage caused to the victim, always on the basis that the effective judicial protection of the victim is respected, which establishes a sanction in the Ecuadorian penal regulations. One way to be consistent with this research work is to always start with the provisions of the Constitution of the Republic of Ecuador in 2008, taking into account that it is the supreme rule that governs the country, and that same all other laws must be subject to it, otherwise they lack legal effectiveness, because the constitutional supremacy must always prevail. In addition, in case of human rights that are established in the International Treaties and Conventions ratified by Ecuador, these will be of immediate application because they prevail over the Constitution. The Right to Judicial Protection, comes to make the paradigm of this work, because to make a relatively new issue in Ecuador, in other countries this right has already been enforced, as it has to do with due process, with security legal, with the motivation not only of the judgments, but of the orders, of the orders, etc., because its main objective is the legal protection of rights, which can not be violated.Item El principio de autodeterminación y el reconocimiento a las costumbres ancestrales jurídicas de los pueblos Afroecuatorianos(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2018-11) Alvarado Pilligua, Johanna Dolores; Vargas Villacrés, Borman RenanThe Constitution of 2008 in Title Two Fourth Chapter develops Collective Rights for the Afro-Ecuadorian people, also establishing recognition of Rights and Principles typified in International Instruments such as ILO Convention 169, Charter of the United Nations, International Covenant on Human Rights Civil and Political, International Covenant on Economic, Social and Cultural Rights. In spite of the fact that the Magna Carta synthesizes Rights to the Afro-Ecuadorian People, the erosion of the Effective Protection of Rights to Black communities is evident, for that reason it is considered that the Legal Pluralism in Ecuador, develops with the Ordinary and Indigenous Justice, infringing the recognition to the Afro-Ecuadorian Jurisdiction. Although there are investigations that reflect the practice of Proprietary Law in Provinces of Esmeraldas and Imbabura, Afro-Ecuadorians are forced to be tried under Ordinary Justice. For this reason, we hold that it is important that the ancestral legal practices of Afro-Ecuadorian peoples be recognized through the Self-Determination Principle avoiding the violation of National and International Rights.