Unidad de Posgrado
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Item La acción de protección como mecanismo de defensa ante acto administrativo lesivos de derecho(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado. Mención Derecho Constitucional, 2023-08) Andino Silva, Edy Juan; Espín Meléndez, María CristinaThe Ecuadorian Constitution establishes that the protection action has as its objective the direct and effective protection of the rights recognized in the Constitution and can be filed when there is a violation of constitutional rights. However, the Organic Law of Jurisdictional Guarantees and Constitutional Control establishes in which cases the action for protection does not proceed, specifically, in the case of administrative acts. In general, the protection action is not valid if the administrative act can be challenged through judicial channels, unless it is demonstrated that such channels are not adequate or effective. This means that the protective action is restricted in its use, being considered as a residual and subsidiary measure. Sometimes, administrative acts issued by public authorities are not necessarily illegal, but they do violate fundamental rights that can only be recognized through the Action for Protection, which is considered an effective and adequate means for its resolution. This action constitutes a mechanism to protect and guarantee the rights of individuals against acts of the administration that may violate them. Therefore, it is necessary to consider how protection is understood in the framework of a constitutional State of rights and justice and how the principles are applied in relation to the action for protection. The objective of this research is to determine whether the action for protection is viable in cases of administrative acts.Item El uso del sistema Sajte de la función Judicial y la garantía del derecho a la protección de datos, intimidad, honor y al buen nombre(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado. Mención Derecho Constitucional, 2023-08) Allán Fiallos, Gabriela Carolina; Frías Raza, Sergio EdmundoIn Ecuador, under the right of access to public information, the Automatic Ecuadorian Judicial Processing System (SATJE) was created, this system arose with the objective of complying with the right of access to public information of judicial cases, it is thus that the excessive exposure of personal data causes the violation of constitutional rights such as the right to data pro tection, privacy, honor and good name, so the investigation focuses on the need for our legal system to regulate the right to be forgotten, mainly when the information that is uploaded in the system is: inaccurate, imprecise, obsolete or relapse when a pro cess has been terminated due to dismissal, ratification of innocence, abandonment, or withdrawal. Since in the theoretical framework a set of norms of national and international legislation, analysis of jurisprudence of ordinary and constitutional justice, and doctrine texts that have focused on the analysis of the rights described above are addressed. In the same way, resorting to to comparative law, the legislative texts of countries such as Colombia, Peru and Argentina will be incl uded to determine the treatment that is given in these sister nations for the purpose of this study and in this way to be able to verify if they have made progress in the recognition of this set of aspirations of people in their respective legal systems. I n this context, a qualitative methodology was applied with emphasis on bibliographic research, where the jurisprudential decisions of the Constitutional Court of Ecuador were analyzed. In this way, it was concluded that the case consultation module can vio late human rights such as privacy, honor and data protection, as well as emerging rights, for example, the right to be forgotten. In addition, the present investigation is based on a quantitative approach, since through the survey that was applied to the l awyers in Free practice of the Province of Tungurahua of the Ambato Canton, through the collection of data, where it is concluded that the digital platform of the judicial function or SAJTE System, is open and easily accessible to any user where personal d ata is easily accessible, where it can be observed that it violates constitutional rights. Therefore, the elaboration of a document of critical, legal analysis regarding the application of the right to be forgotten is proposed.Item El incumplimiento de las disposiones transitorias del código orgánico de entidades de seguridad ciudadana y orden público y su incidencia en los derechos fundamentales de los agentes civiles de transito(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado. Mención Derecho Constitucional, 2023-08) Pinto Morales, Andrea Estefanía; Vayas Castro, Guillermo SantiagoThe present investigation revolves around verifying if the disciplinary administrative processes followed by the Civil Traffic Agents, comply with the right to legal certainty and effective judicial protection in each of their procedures, even more so when the first transitory provision of the Organic Code of Citizen Security and Public Order Entities provides that while the regulations that regulate the actions of this collegiate group are issued, the provisions of said code will be in the most favorable to the administered. The qualitative approach allowed us to analyze and explain the causes of the scarce or apparent motivation of the disciplinary administrative processes followed against the civil traffic agents, in which a violation of constitutional rights is clearly evident due to the non-compliance with the provisions of the first Transitory Provision of the COESCOP and others corresponding to what has to do with the Civil Traffic Agents, that is, not having regulations that govern their actions, specifically; Therefore, this situation leads to a violation of fundamental rights such as due process and consequently legal security and effective judicial protection. From the findings, it was evidenced as a general rule that, to date, the Constitutional Court has already admitted an action for non-compliance with what is indicated, that is to say that the municipalities do not have an established regulation for the body of Civil Traffic Agents, with such admission by the Control Body, it results in coercion or interests of a collective nature, placing within this group the administrators that correspond to the Civil Traffic Agents, without considering Absolutely not that several fundamental rights are at risk. To finalize the hypothesis proposed by the author was fulfilled, since from the findings found it can be evidenced that there is a violation of the fundamental rights of Civil Traffic Agents.Item 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 PatricioThe 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.Item Los derechos de la naturaleza y la aplicación del derecho de restauración en los conflictos ambientales(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Maestria en Derecho Constitucional, 2023-08) Aroca Rivadeneira, Ricardo Paúl; Vayas Castro, Guillermo SantiagoThe present titling work Development Project modality has as general objective: "To legally investigate the application and complexity of the right of restoration in environmental conflicts in cases with emblematic sentences in rights of nature", the same development several topics in the chapter II, inquired about the Right to nature, the Sumak Kawsay where this concept is explained in the different constitutions of South America. To then identify that Nature is a subject of rights, that is, it has all the rights enshrined in the constitutional norm. It was also inquired about environmental restoration that seeks to repair environmental damage. In addition, the state of the art was complemented with topics related to research such as restoration, rehabilitation, remediation, mitigation, topics related to the right to nature, adding both the constitutional regulatory framework and specific regulations. The present work analyzes the right of restoration in environmental conflicts, especially in the two cases with emblematic sentences in rights of nature, for which those selected by the Ombudsman's Office in 2020 were taken as a reference, in which presented a series of complexities due to various factors that were developed in chapter IV, to conclude with chapter V in which both the conclusions and recommendations were developed, thus understanding that the right of restoration in environmental conflicts must establish clear objectives and achievable for environmental restoration, which the judges must understand and understand that nature is one more subject, it must be emphasized that the present investigation sought texts by both Dr. Ramiro Ávila and Ecuadorian authors, comparative and international norms, scientific articles and others.Item La declaratoria de lesividad en instituciones de educación superior del Ecuador, frente a la vulneración de Derechos fundamentales en el ámbito administrativo(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Maestria en Derecho Constitucional, 2023-08) Iza Cando, Germán Marcelo; Poaquiza Poaquiza, Ángel PatricioThis investigation investigates whether the violation of fundamental rights in the administrative field with the purpose of preventing constitutional and administrative actions in the public administration, especially in higher education institutions, since by not observing the constitutional principles and guarantees, in administrative acts they affect constitutional principles and guarantees, damaging rights considered fundamental by our Constitution and international regulations. The following specific objectives were analyzed: 1. Carry out a legal and doctrinal analysis of the declaration of harmfulness of administrative acts. 2. Identify the violation of rights by the declaration of harmfulness of the favorable administrative act. 3. Determine in the administrative resolutions declaring harmfulness the existence or not of violation of fundamental rights. In the first chapter, of the theoretical framework, it was analyzed doctrinally andxv legally in relation to the administrative and constitutional field, in which the meaning of the administrative act is conceptualized, as well as the elements, characteristics, requirements, validity, favorable acts, its revocation, until the revocation of the favorable administrative acts through the declaration of harmfulness, in the same way the requirements, nature, effects that can cause the administered and the administration, when carrying out a procedure of declaration of harmfulness in the administrative field, were reviewed. considered national and international jurisprudential casuistry, entering the constitutional sphere in order to determine in the administrative procedure the violation of the fundamental rights of the person as a public servant affected, by the declaration of harmfulness. In the chapter of the methodological framework, surveys will be carried out in order to find out if the legislation corresponding to the administrative field, in coordination with the constitutional one, is applied in a practical way in higher education institutions, especially in newly created universities. Finally, the conclusions and recommendations are presented, which emphasize the main results achievedItem 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 SantiagoThe 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.Item El principio de motivación en la práctica del sistema judicial penal del Ecuador(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho Constitucional, 2023-03) Guaquipana Bayas, Alexandra Verónica; Tite, Segundo RamiroThis research work that works as a degree work for obtaining the Master's Degree in Constitutional Law and is entitled: "The principle of motivation in the practice of the criminal justice system of Ecuador", is concerned and concrete in the detailed study of the content, requirements and structure of the principle of motivation as a constitutional principle and guarantee that constitutes due process, and also as a procedural principle for criminal proceedings. Consequently, it is necessary to review its current situation, both from a theoretical and practical point of view in the Ecuadorian judicial system; considering as a general objective: Analyze the application of the principle of motivation in the Ecuadorian criminal justice system, through the analysis of a sentence of the Constitutional Court. What has been achieved through the application of a qualitative research methodological approach and the use of methods such as bibliographic review, historical-logical, inductive and analytical-synthetic. All that allowed to punctually point out the shortcomings around the theoretical and practical application of the principle of motivation.Item 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 PabloThe 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.Item 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 PatricioThe 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.