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Examinando Derecho por Asesores "Arciniegas Castro, César Leonardo"
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- ÍtemAcceso AbiertoAdmisibilidad de la caución en delitos culposos de Tránsito con resultado de muerte.(Universidad Católica de Cuenca., 2022) Arévalo Tamayo, Omar Ariel; Arciniegas Castro, César Leonardo; 0105946768The investigative article analyzes the admissibility of the bond in wrongful death in traffic accidents based on current legislation, considering that the legal budgets do not allow its applicability. The resolution of the Constitutional Court on the unconstitutionality of article 536 of the Organic Comprehensive Criminal Code hereinafter COIP- is considered as a basis to support the alternative of suspending preventive detention in traffic crimes due to their nature, guilt and the history of that in driving a vehicle leads to the execution of an allowed risk. The investigation intends that the legislator analyze further the applicability of the bond in this class of crimes, so that the figure of preventive detention is not the general rule, but that there are alternatives, in this case pecuniary that guarantee the appearance of the accused process; Likewise, that this suspension of the precautionary measure contributes to the problem of overcrowding and the crises that are experienced in the prison system in Ecuador.
- ÍtemAcceso AbiertoAnálisis de la ininmputabilidad de los adolescentes como relación del incremento en las acciones delictivas graves(2018) Alvarez Mendieta, David Xavier; Arciniegas Castro, César Leonardo; 105835342
- ÍtemAcceso AbiertoAnálisis de la legislación ecuatoriana, en cuanto a una correcta aplicación de la legitima defensa, como una fomra de proteger derechos propios y de terceros(Universidad Católica de Cuenca., 2021) Sánchez Nugra, Julia Narcisa; Arciniegas Castro, César Leonardo; 0105804306In the Ecuadorian criminal system, self-defense is a mechanism by which citizens' own rights are protected, where there is an action to defend and protect various legal assets which are embodied in the Constitution of the Republic of Ecuador, it does not matter who belongs the right to, such as the right to life, case in which a person will have to use the instruments available to try to avoid an aggression. The legitimate defense is a right that is typified in the integral criminal organic code in ARTICLE 33, of which we can take into account that there are three requirements in which a rational being acts to face an aggression, understanding that these requirements are not applicable to the conduct of active subjects when they illegally enter a residence, that is, the Ecuadorian criminal system does not have the necessary requirements to carry out an effective legitimate defense. In consequence, to accomplish the objective of this work, it was made a comparison with Colombian legislation, where the legitimate defense works in favor of the victims in cases where there is illegitimate entry to a real estate. The approach was qualitative because through this method it was able to carry out an evaluation and interpose and weigh different information on concepts of national and international writers. regarding the correct application of legitimate defense in Ecuador, which will favor the development of the proposal through a doctrinal and legal analysis of legitimate defense, what means, in the case of perpetrating a house robbery, that victims can defend themselves adequately in legitimate defense and in this way guarantee legal security, and other rights established in the constitution of the republic and international treaties
- ÍtemAcceso AbiertoAnálisis de la políticas del Estado Ecuatoriano para la reinserción de la personas privadas de libertad como garantía Constitucional a la Rehabilitación Social(Universidad Católica de Cuenca., 2022) Nieto Calderón, Diego Andrés; Arciniegas Castro, César Leonardo; 1400540876The purpose of this research is to analyze the current policies of the Ecuadorian State for the reinsertion of persons deprived of liberty and their application as a constitutional guarantee for social rehabilitation. For this reason, Ecuadorian legislation, international treaties, and conventions, as well as regulations for the social rehabilitation of PPL will be analyzed. The Ecuadorian social rehabilitation system does not comply with state policies and supra and infra-constitutional regulations. Currently, violence within social rehabilitation centers is uncontainable, excessive overcrowding, the entry of weapons, controlled substances, among others, are factors that today are factors that nullify rehabilitation. Thus, the purpose of rehabilitation, which consists of the re-education and subsequent reintegration of persons deprived of liberty, is not fulfilled, which violates the constitutional rights of persons deprived of liberty.
- ÍtemSolo MetadatosAnálisis de la posible aplicación de la conciliación en los procesos penales de Ecuador y como se garantizaría el principio de celeridad.(Universidad Católica de Cuenca., 2023) Fabara Jara, Pedro Pablo; Arciniegas Castro, César Leonardo; 0105891568Criminal mediation in Ecuador is a conflict resolution tool that offers an alternative way to settle the conflict, through a dialog between the parties to the conflict, the victim and the actor, and a neutral and impartial third party who leads this dialog to achieve a more effective and faster reparation of the damage caused by a crime. It is opposed to the ordinary justice system that offers the opposite. For this reason, Restorative Justice is seen as a new way to orient the law towards a more humanistic vision for the reparation of the harm caused, which, together with mediation, offers a peaceful solution. Through the analysis and definition of this alternative, together with the comparative legislation of Argentina, Colombia, and Spain, we try to show that criminal mediation is not only applicable but also necessary for the correct development of the administration of Justice.
- ÍtemSolo MetadatosAnálisis de la presunta vulneración al principio de imparcialidad de los peritajes en los delitos de tránsito.(Universidad Católica de Cuenca., 2022) Maldonado Illescas, Pablo Andrés; Morocho Hoyos, Gabriela Katherine.; Arciniegas Castro, César Leonardo; 0104363742; 0106079346The objective of the research was to analyze how expert opinions in traffic crimes violate the right to impartiality through the study of the regulations in force in Ecuador, where it was proposed to address how this process is affected based on the expert reports issued by the Specialized System of Investigation, Legal Medicine and Forensic Sciences (SEIIMLCF). The methodology applied was a qualitative approach, since documentary research was carried out, resorting to doctrinal sources, specialized articles, national and international legislation, in addition to the analysis of three Prosecutor's Office files on traffic accidents in expert documents at the national level. For this purpose, legal hermeneutics was applied, through the interpretation of the Ecuadorian legal context and the regulations in force. It is concluded that the prosecutor's decision to present only the expert reports prepared by the SEIIMLCF experts, without taking into account other reports, leaves the defendant defenseless. This is because it is making it impossible to prove his innocence, affecting the constitutional rights to effective judicial protection, due process and the right to defense. From this evidence, the time that elapses between the traffic accident and the technical report of recognition of the place provided by the Prosecutor's Office is extensive, which prevents carrying out an authentic scientific investigation, sometimes showing that the evidence has disappeared and there is no preservation of the scene of the accident.
- ÍtemAcceso AbiertoAnálisis de la reparación integral material e inmaterial en casos contravencionales de violencia contra la mujer(Universidad Católica de Cuenca., 2022) Ávila Gómez, Patricia Elizabeth; Chacón Córdova, Marly Julissa; Arciniegas Castro, César Leonardo; 0107345332; 0105417679The Constitution of the Republic of Ecuador and the Comprehensive Organic Criminal Code recognize and guarantee victims of violence the right to full reparation. However, since its recognition, the integral material and immaterial reparation within the sentences of first instance contraventions of violence against women in the city of Cuenca lack effectiveness due to the absence of an agency assigned to the Judiciary Council in charge of advising, controlling, and following up on the victims. This research has a qualitative approach, considering that the analysis is humanistic and interpretative since the study concerning integral reparation is a social fact evidenced in sentences. The theoretical basis of this research will be based on the analytical-synthetic method to analyze the social and legal development of comprehensive reparation in contraventions of violence against women. For the situational diagnosis phase, the empirical method will be used, combining the study of the procedure and treatment of comprehensive reparation to victims of violent contraventions through the analysis of sentences and interviews. Finally, the research method used is the hypothetical demonstrative to propose suitable mechanisms to stop the violation of rights.
- ÍtemAcceso AbiertoAnálisis de la suspensión condicional de la pena según la resolucion 2-2016 del codigo organico integral penal(Universidad Católica de Cuenca., 2018) Mancheno Arevalo, Bryam Patricio; Arciniegas Castro, César Leonardo; 0103848560The study entitled: Applicability of conditional suspension of custodial sentence from the application of the abbreviated procedure according to Resolution 2- 2016 of the Comprehensive Criminal Organic Code is a qualitative research with an exploratory and descriptive scope, which starts from a phenomenon of observable study and described from the application of different techniques such as observation and survey whose instrument is composed of seven (7) reactive multiple choice items. For its development the researcher starts from a situation (phenomenon of study) that is the applicability or not of a criminal action based on a resolution (02-2016) contemplated by the Ecuadorian National Court of Justice that is part of the guarantor body of the criminal procedures in the country. For the construction of the investigative body, the methods Hypothetical-Demonstrative and the Empirical Method applied according to each phase of the study are used. The sample consisted of 5 criminal lawyers specializing in abbreviated procedures and reduction or suspension of sentences in convictions. Among the conclusions of the study highlights the recognition of the rule to trigger an abbreviated procedure, by legal professionals. However, they warn that it is not precise as to who can request such a procedure, while not establishing the limits of application that regulate it from the application of other legal instances.
- ÍtemAcceso AbiertoAnálisis del abuso sexual de niños, niñas y adolescentes y la inserción de nuevas agravantes en el Código Orgánico Integral Penal Ecuatoriano respecto a este Delito(Universidad Católica de Cuenca., 2021) Calle Encalada, Carlos Eduardo; Arciniegas Castro, César Leonardo; 0704396167
- ÍtemAcceso AbiertoAnálisis del cumplimiento de los requisitos del régimen semi abierto en el centro de rehabilitación social turi(Universidad Católica de Cuenca., 2022) Brito Campos, Diana Belén; Arciniegas Castro, César Leonardo; 0105250740; Ordoñez Carpio, Fernando EstébanThe present research, in response to the problem of knowing how the term "suitable" affects the process of adoption of minors, considered in the Code of Childhood and Adolescence, particularly in numeral 7 of Article 153, which states that "the candidates for adoption must be suitable persons." The objective was to analyze the term "suitable" as a limitation of the process. From a qualitative approach, information is gathered through primary sources regarding national legal regulations and compared with international law regulations related to the process of adoption of minors to identify the inefficient aspects that delay or hinder the qualification of "suitability" of candidates for adoption, which is detrimental to adoptees and adopters. The conclusion is that the law needs to specify the term "suitability." Still, the absence of regulation with precisions and objective indicators leads to obstacles or delays in the time and procedures established for adoption. It takes a long time to reach a successful conclusion in the adoption process, always justifying itself in the "suitability," which is ultimately a detriment to the process. In other words, it is outstanding to look for the necessary or optimal "suitable" conditions in the candidates for adoptive parents; but doing so over a long period would seriously affect both the prospective adoptees and the candidates for adoptive parents. In addition, there is a lack of effective and efficient supervision that contributes to the good of the protagonists in the child adoption process.
- ÍtemAcceso AbiertoAnálisis del derecho a la integridad física consagrado en la Constitución de la República del Ecuador frente a la aplicación del sistema punitivo indígena(Universidad Católica de Cuenca., 2021) Guaman Tobay, Pamela Cristina; Arciniegas Castro, César Leonardo; 0150068963This research analyzes the Right to Physical Integrity, a human right that is recognized in Ecuador in relation to the application of the indigenous punitive system, that is, in relation to the way in which penalties or punishments are applied to a person who has incurred in any offense that alters the coexistence within the indigenous peoples, communities and nationalities that are recognized in Ecuador, It is transcendental to know what it consists of and what is its basis for the application of the sanctioning power of these groups of people and their relationship with the Constitutional Rights, within this same the foundation or the basis that the authorities of the indigenous peoples have to apply the so-called Customary Law will be analyzed, It is clear that the 2008 Constitution of the Republic of Ecuador recognizes and guarantees the right of indigenous peoples, communities and nationalities to apply their own justice, however, in this same regulation it is determined that this type of justice must be permanently subject to the Control of Constitutionality to avoid that by the superposition of this system of justice the Constitutional Rights of the processed persons are violated, since at present there have been certain cases in which the physical and psychological integrity of a processed person has been undermined by the mechanisms of application of the Customary Law, affecting the right to Physical Integrity.
- ÍtemAcceso AbiertoAnálisis del Reglamento del Sistema Nacional de Rehabilitación Social en contraste con la Constitución y Tratados internacionales y su eficacia dentro del proceso de rehabilitación y reinserción de las personas privadas de libertad en el Ecuador(Universidad Católica de Cuenca., 2022) Granda Viejo, María Elena; Pinguil Guaman, Gladys Cristina; Arciniegas Castro, César Leonardo; 0105953053; 0302098736The penitentiary system plays a significant role in society as it seeks to rehabilitate persons deprived of liberty to be reintegrated into society. This research aims to analyze the Regulations of the National Social Rehabilitation System for persons deprived of liberty with a focus on how effective public policies are in terms of rehabilitation and social reintegration of a person during and after serving their sentence. This is because the prison system should focus on the proper education, rehabilitation, and reintegration of convicts, since with current regulations there has not been a decrease in the commission of crimes or improvements in treatment for rehabilitation. The analytical-synthetic method will be used to describe the figure of rehabilitation, social reinsertion, and its purpose; a documentary review to examine our penitentiary model and the one of different countries, and finally, the deductive-explanatory method to study the Regulations of the National System of Social Rehabilitation and analyze the existing regulations. The penitentiary system is essential to guarantee the security of those deprived of liberty and is responsible for providing an adequate and practical regime to guarantee proper rehabilitation, trying to prevent the increase in crime
- ÍtemAcceso AbiertoAnálisis Jurídico acerca del Incumplimiento del Derecho a una rehabilitación social efectiva y su repercusión en las personas privadas de libertad(Universidad Católica de Cuenca., 2022) Beltrán Ortega, Evelyn Gabriela; Arciniegas Castro, César Leonardo; 0105958193The purpose of this thesis or research work is to reveal the real situation that our Social Rehabilitation Centers face and the consequences that their non-compliance has on those deprived of their freedom, which makes their reinsertion into society impossible. The SNAI is the Technical Agency of the National System of Social Rehabilitation, which is established by former President Lenin Moreno to substitute the Ministry of justice in 2019 with two main objectives; as a financial austerity plan and with the purpose of preventing rights violations of persons deprived of their freedom, and to ensure efficiency in the acts in charge of this institution. Its main role is to determine and apply policies of integral attention to persons deprived of their freedom in order to provide an adequate rehabilitation to persons deprived of their freedom and achieve their reinsertion after completing their sentences. Unfortunately, this does not happen nowadays, as will be shown in the present work, due to the right violations they suffer. In most cases, the consequences are negative: when they are released, prisoners regain their freedom and return to their lives learning new criminal skills, and acquiring new complicates their proper rehabilitation and reintegration into society.
- ÍtemAcceso AbiertoAnálisis sobre la criminalización por parte del estado a las autoridades indígenas que ejercen de jueces comunitarios en la solución de sus conflictos internos en la comunidad de San Pedro del Cantón Cañar(Universidad Católica de Cuenca., 2021) Guamán Acero, Edwin Orlando; Arciniegas Castro, César Leonardo; 0302129952The purpose of this academic article is to justify the criminalization suffered by the authorities of the Consortium for Indigenous and Peasant Justice of San Pedro, Cañar Canton, for the application of their customary law, through the analysis of a case brought before that jurisdiction that has caused controversy between the indigenous jurisdiction and the ordinary jurisdiction, Therefore, it is necessary to analyze the constitutional provisions on the application of indigenous justice based on the content of Article 171 of the Constitution of the Republic of Ecuador, which recognizes indigenous justice as a mechanism to guarantee the right to selfdetermination of indigenous communities, peoples, and nationalities.
- ÍtemAcceso AbiertoAnálisis sobre prevención de lavado de activos en fundaciones no adscritas en la Secretaría Técnica de Cooperación Internacional - SETECI(2018) Andrade Paqui, Angel Salvador; Arciniegas Castro, César Leonardo; 104784539
- ÍtemAcceso AbiertoAnálisis y consideración de nuevas agravantes que permitan sancionar el delito de femicidio en el Ecuador(2018) Padilla Garcia, Fredy Mauricio; Arciniegas Castro, César Leonardo; 103558839
- ÍtemAcceso AbiertoLos beneficios penitenciarios frente al Código de Ejecución de penas y su reglamento(Universidad Católica de Cuenca., 2021) Ulloa Heras, Domenica Francisca, Alvaro Javier Molina Muñoz,; Arciniegas Castro, César Leonardo; "0302008917 0106764491"This research aims to analyze the previous code of execution of sentences and its regulations, in contrast with the Comprehensive Organic Criminal Code (COIP, in Spanish), in terms of the effectiveness and application of the regimes; closed, semi-open, and open established in Article 696 of the COIP, and thus, verify the efficient and timely compliance with the application of prison benefits. It is worth mentioning that one of the most relevant aspects of this study is to verify whether the previous requirements (to obtain the respective regimes) established in the Code of Criminal Execution and its regulations, in correspondence with the reforms of the COIP, are more beneficial for persons deprived of liberty and comply with the supra-constitutional parameters.
- ÍtemAcceso AbiertoCriminalización del Derecho Constitucional a la resistencia, mediante el Delito de Rebelión(Universidad Católica de Cuenca., 2022) Córdova Chaca, Guisselle Katherine; Arciniegas Castro, César Leonardo; 0105852131The figure of rebellion has generated a conflict of thoughts, considering it as a right, even using it as a synonym of resistance, but for others, this figure is a crime. Being typified as a crime in the Ecuadorian legislation with the assumption of protecting public safety, the Constitution, and the government. Considering that the Universal Declaration of Human Rights establishes rebellion as a supreme resource and, due to the opposing views, the following question has been formulated: Does Ecuadorian legislation consider the figure of rebellion as a crime, violating the right of citizens to complain about the unjust decisions of their rulers? To respond to this problem, we will analyze through legal dogmatics the deconfiguration of the figure of rebellion, to use it as a mechanism of criminalization of resistance. The evolution of the criminalization of resistance in the concept of rebellion will be explained doctrinally. And the rights violated by this criminal type will be identified. The qualitative method will be used, approaching from different perspectives the reality of the subject to be investigated. Likewise, the systematic, historical, and deductive-inductive methods will be used. Methods that will help to compile and assemble the development of the research with solid foundations. The subject of this research is important because, different positions will be observed regarding the figure of rebellion and how it has evolved in Ecuadorian legislation, using it to criminalize the right to resistance, to maintain control, and silence the people who exercise their right to claim.
- ÍtemSolo MetadatosEl ejercicio de la justicia ordinaria en la justicia indígena, en la comunidad Quilloac(Universidad Católica de Cuenca., 2023) Pugo Sangurima, María Teresa; Quito Arias, Clarita Isabel; Arciniegas Castro, César Leonardo; 0105144927; 0104533591
- ÍtemAcceso AbiertoInclusión de una circunstancia agravante en los delitos cometidos en contra de la mujer con referencia a la violencia física, psicológica y sexual infringida en el contexto de la pandemia(Universidad Católica de Cuenca., 2022) Oleas Tapia, Lisseth Estefanía; Arciniegas Castro, César Leonardo; 0104553391The purpose of this paper is to analyze the increase in violence committed against women in the context of social confinement, because of the COVID-19 pandemic, to determine this problem as an aggravating circumstance in this type of crime. Three methods were used for this purpose: the first descriptive-analytical for the theoretical review of how violence against women has developed up to the present time, to describe the types of violence, the national regulations, and their relationship with international treaties; the second method is that of natural observation that allowed us to identify to what extent the level of violence against women increased based on figures provided by the State Attorney General's Office; finally, the analytical-synthetic method was used since from these figures we sought to analyze the possibility of including an aggravating circumstance when these crimes are committed during confinement due to a sanitary emergency.