Sede Azogues - Derecho
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Ítem Acceso Abierto La adopción homoparental, una nueva necesidad en el ordenamiento jurídico ecuatoriano(Universidad Católica de Cuenca., 2023) Sumba Lucero, Brian Steven; Castro Flores, Jessica Fernanda; 0302318985; ., .This paper studied the relationship between the principle of the child's best interest and homoparental adoption within the Ecuadorian legal system framework. The methodology was developed using a qualitative approach due to the theoretical basis of adoption. Likewise, the deductive-inductive method was used to study general knowledge of homoparental adoption to particular contents of this legal figure. On the other hand, the dogmatic-legal method was utilized to clarify, through interpretation, the norms and laws that comprise the Ecuadorian and international legal systems concerning the legal entity examined. The analytical-synthetic method was also employed to consolidate and interpret the information gathered to identify the legal consequences of the lack of regulation of same-sex adoption in Ecuador. The research techniques were the file and the bibliographic review. In conclusion, the need to regulate homoparental adoption in the Ecuadorian legal system was theoretically justified. Additionally, a reform of the Civil Code and the Code of Childhood and Adolescence was considered opportune to achieve its legal recognition and to permit adoption in same-sex families to guarantee the principle of the best interest of the child.Ítem Acceso Abierto El alcohotest como elemento probatorio dentro de las infracciones de tránsito y su eficacia(Universidad Católica de Cuenca., 2021) Barrera Andrade, Leonor Emilia; Pozo Cabrera, Pablo Arturo; 0302007125; ., .Traffic violations due to alcohol consumption are a latent problem in Ecuador, owing to how they are regulated, essentially because the process is based on an evidentiary means, which is the “Alcohotes” that utilizes a mechanism whereby people blow air and is reflected in previously established margins; however, this test lacks relevance, conductivity, and usefulness because it does not have a total efficiency, violating fundamental principles of people, such as legality. Firstly, a literature review of the different tests that can be performed to measure the degree of alcohol was made; secondly, the evidentiary means were analyzed in different legislations as well as in Ecuador; thirdly, surveys to different legal professionals as to their opinion of the tests performed in our country were made; and finally, different sentences dictated by the Criminal Judicial Unit with headquarters in the Azogues canton were studied, which allowed understanding the role played by the evidence in the criminal process.Ítem Solo Metadatos Análisis de la donación como contrato en el Código Civil Ecuatoriano(Universidad Católica de Cuenca., 2020) Vintimilla Herrera, David Agustín; Zamora Vázquez, Anita Fabiola; 0302302450; ., .Due to its legal nature, the inter-living donation is a civil contract due to the bilateral existence of the action required for its execution. In article 1402 of the Ecuadorian Civil Code it is classified as a legal act and not as a contract; the problem is that, having this term, there is an inconsistency in the legal precept, which has created a conflict of conceptualization character within the Ecuadorian legislature. This research is aimed at establishing the difference between these two definitions by means of a bibliographic analysis that allows the living donation to be legally supported as a contract and not as a legal act, which allows having a legal basis to propose a reform to this definition. and avoid legal loopholes for its misuse in any trial or legal process..Ítem Acceso Abierto Análisis de la eficacia del tipo penal de incumplimiento orden legítima de autoridad competente en el cantón Azogues(Universidad Católica de Cuenca., 2023) Merchán Ávila, David Marcelo; Quevedo Quinteros, Manuel Ramiro; 0302803572; ., .This research focuses on article 282 of the COIP (by its Spanish acronym: integral organic penal code). It establishes the criminal offense of "non-compliance with legitimate decisions of the competent authority." It is based on the practices of justice operators who work in Cañar, Ecuador. At first, the importance of criminal policy and constitutional principles are explained to classify a behavior as a crime, and the doctrinal positions on disobedience to authority are analyzed. In addition, the theory of the legal right is analyzed, and there is a debate about which legal right the State seeks to protect by typifying the crime of non-compliance with decisions of a competent authority before determining if there is non-compliance with the legitimate decisions of an authority. This research has a qualitative and exploratory orientation. It is concluded that this behavior analyzed as an abstract danger can be harmful, which justifies penal intervention in circumstances in which each individual can govern his own life.Ítem Acceso Abierto Análisis de la legalidad en el cobro de Contribuciones Especiales de Mejora en el cantón Azogues y la inobservancia de principios tributarios.(Universidad Católica de Cuenca., 2023) Zhindón Cáceres, Carlos Andrés; Rojas Maldonado, Brayan Steven; Ormaza Ávila, Diego Adrián; 0350009387; 0302640727; ., .This research aimed to verify if the collection of special contributions for improvements in the Azogues Canton respects the tax principles of legality, legal certainty, and contributive capacity. For specific objective one, the grounded theory was employed; for specific objective two, the analytical method was applied; and for specific objective three, the synthetic method was used. The results determined that the tax principles of legality, legal certainty, and contributive capacity are being violated since there is no ordinance for each tax collected by the Azogues tax administration. Additionally, by infringing these tax principles, the tax administration violates the taxpayers' rights because it justifies the collection of special improvement contributions based on a general application ordinance rather than one creating the tax.Ítem Acceso Abierto Análisis de la motivación de las resoluciones de prisión preventiva en el cantón Azogues durante el 2022(Universidad Católica de Cuenca., 2023) Andrade Guamán, Armando Gonzalo; Abad Quinteros, Wyatt Iván; Pinos Jaén, Camilo Emanuel; 0350084034; 0302988464; ., .This research analyzes the precautionary measure of preventive detention, its legal and constitutional requirements, and the parameters established by the Inter-American Court of Human Rights for its origin and correct application. In practice, the prosecutor's office generally uses "legal" arguments in the substantiated request; therefore, the responsibility for the proper statement of reasons falls on the judge because, despite being the last ratio, the misuse and application have become one of the main procedural law problems. In order to demonstrate this premise, a doctrinal, normative, and motivational analysis of resolutions of preventive detention in Azogues canton in 2022 is developed. As a result, the indiscriminate application of this measure violates constitutional principles and rights, from which insufficient motivation and non-compliance with minimum constitutional and conventional standards have been evidenced.Ítem Acceso Abierto Análisis de la motivación de sentencias de acción de protección durante el período 2021 del Cantón Azogues, Ecuador(Universidad Católica de Cuenca., 2023) González Chuqui, Damián Patricio; Vega Torres, Edison Fernando; Pinos Jaén, Camilo Emanuel; 0302702907; 0302746169; ., .This research analyzes the motivation of judicial decisions in protective action during 2021 in the Azogues canton, Cañar province. This investigation has an exploratory scope and is based on a mixed approach, so the theoretical foundation of jurisprudential precedent and motivation was made through the dogmatic-legal method. Subsequently, based on the analytical method, the jurisprudence issued by the Constitutional Court was analyzed to determine the criteria on which the motivation is established. Likewise, with the application of the data collection method and sentence study, the type of motivation used by judges in the period under analysis was identified. Finally, the results show that judges fail to observe the motivation criteria issued by the Constitutional Court at the time of sentencing; as a result, a large percentage present a motivational deficiency.Ítem Acceso Abierto Análisis de la violencia intrafamiliar durante pandemia COVID-19 en el Cantón Azogues(Universidad Católica de Cuenca., 2023) Sarmiento Velecela, Paula Nahomi; Álvarez Campoverde, Jhon Moisés; Zamora Vázquez, Ana Fabiola; 0301982872; 0350007019; ., .This research established the causes of increased domestic violence during the pandemic. Through the historical-logical method, it was possible to demonstrate the antecedents of women's empowerment that marked history so that their rights would be recognized, and together with it, all the rights of the members of the family nucleus in the Ecuadorian legal system. In addition, the analytical-synthetic method was used, and the results obtained through the surveys conducted in the different parishes were statistically analyzed, getting important characteristics. Finally, the inductive method was used to interview several victims at the "Paqarina" foster home to verify the causes. Two ways of the study were used; the first was the interview technique, which led to qualitative research on the causes of this type of violence. The second was the survey technique applied in the quantitative study. Likewise, all those bibliographic files used within the research work were made. As a result, it was possible to show that intrafamilial violence worsened during the pandemic due to several causes, such as lack of harmony and economic situation.Ítem Acceso Abierto Análisis de los estados de exepción frente a los problemas en los centros penitenciarios en el Ecuador durante el 2021-2022(Universidad Católica de Cuenca., 2023) González Castillo, Ximena Estefanía; Pérez Caguana, Karla Cristina; Pinos Jaén, Camilo Emanuel; 0350005799; 0350195368; ., .The present investigation carries out an analysis of the results obtained by the states of exception decreed by the president of Ecuador during the period 2021-2022, to measure their effectiveness in terms of the prison crisis. This investigation established its theoretical bases in the legal dogmatic method, since regulations and doctrine were analyzed in accordance with the state of exception and the prison crisis. In the same way, the synthetic analytical method was used, from which an analysis and interpretation of the SNAI data was carried out to demonstrate if the states of exception dictated by the president have been efficient in stopping the prison crisis. Finally, it can be concluded that the states of exception have not given the expected results, since they have not been effective in dealing with the prison crisis and the internal problems faced by prisons in Ecuador.Ítem Acceso Abierto Análisis de los impactos tributarios que se derivan de la Ordenanza de Uso y Gestión del Suelo del año 2022 del cantón Azogues(Universidad Católica de Cuenca., 2023) Andrade Mainato, Jonnathan Leonardo; Ormaza Ávila, Diego Adrián; 0302389127; ., .The Development and Territorial Planning (PDOT by its Spanish acronym) and the Land Use and Management Plan (PUGS by its Spanish Acronym) are regulatory frameworks carried out by the Municipal Autonomous Decentralized Government (GAD by its Spanish acronym) of the Azogues canton to regulate and manage public policies that contribute to the sustainability of the canton. These planning documents must establish a correct regulation for the fees for the respective permits for using land for various purposes. However, the Azogues canton’s PDOT and PUGS are deficient in land use regulation for medium and high-impact industries. For this reason, through the analytical-synthetic and systemic methods, it was analyzed and identified that the deficient regulation of land use for industries, regarding the land use permit fee and operation, leads to a loss of direct tax revenues for the Municipality of Azogues.Ítem Acceso Abierto Análisis descriptivo del derecho a la defensa en igualdad de condiciones en acciones de protección(Universidad Católica de Cuenca., 2023) Lopez Garate, Mateo Sebastian; Calle Gavilanes, Freddy Andres; Pinos Jaén, Camilo Emanuel; 0302887179; 0105782700; ., .This paper analyzes the violation of the right to defense under equal conditions, given the existence of several defendants in a constitutional process of protection action. For this purpose, based on a qualitative approach and the observation technique, using a validated form, data were obtained in different hearings of protection actions, selected from the application of non-probabilistic sampling by convenience; likewise, and in parallel, the time study technique was used by means of a stopwatch, to answer the research question and meet the proposed objective. Finally, it is evident that there is a violation of the right to defense under equal conditions in protection actions, due to the disadvantage in time of the plaintiff compared to the time granted to the defendants, which, due to their number, triples the time granted to the one claiming the reparation of rights.Ítem Acceso Abierto Análisis sobre el reconocimiento legal de la identidad de género en Ecuador. Su necesidad de reforma(Universidad Católica de Cuenca., 2023) Flores Vera, Crisitian Andrés; Bustos Gomezcoello, Francisco Esaú; Matínez Calderón, Karina del Rocío; 0302087317; 2200514442; ., .Introduction: In Ecuador in 2016 the "Organic Law of Identity Management and Civil Data" came into force, this law set a precedent as a starting point for the claim of the human rights of the LGBTI group; however, due to the heteronormative system present in our legislation, this law contains regulations that violate the rights of these people. since it only recognizes identities that is considered normal. Objectives: In the present study, the current regulations were analyzed with the need to carry out a partial reform to the Organic Law of Management of Identity and Civil Data of Ecuador, in addition, the Constitution of the Republic of Ecuador, international Treaties, Ecuadorian Legislation, Legal Doctrine in what refers to the legal guarantee of the LGBTI group with a comparative study between Ecuadorian and Argentine legislation in the recognition of the gender identity of the LGBTI group. Methodology: The research developed includes a mixed approach: qualitative and quantitative, qualitative based on the review of information, the quantitative focused on surveys of representatives of LGTBI groups in the Sierra Region of Ecuador. Finally, the depth ranges from a descriptive-explanatory method, until concluding with the inductive-deductive one. Results: With the tabulation of the surveys, the struggle of LGTBI groups, as well as the effort of the States to guarantee their connection with society, is still difficult, which is why to try to reduce this discrimination gap to mark a milestone in the Ecuadorian country. Conclusions: The results of this study justify the need for a partial reform of the organic law for the management of identity and civil data, as it is discriminatory at the time of recognition of the LGBTI group.Ítem Acceso Abierto Análisis sobre la aplicación de la responsabilidad solidaria por delitos culposos de tránsito en el Ecuador(Universidad Católica de Cuenca., 2020) Muñoz Muñoz, Eduardo Sebastián; Pozo Cabrera, Pablo Arturo; 0350141545; ., .The Academic Article analyzes the application of joint and several liability for culpable traffic offenses in Ecuador, taking as its main reference the Constitution of the Republic of Ecuador of 2008, in its Articles 75 and 76 number 7 paragraph "A", recognizing the right of access to justice and the right to defense, In contrast to the Comprehensive Criminal Code (2014), since the person jointly and severally liable for traffic offenses is civilly responsible for the damage caused and cannot make use of any right within the judicial process, it is therefore evident that constitutional rights such as the right of access to justice and the right to defense have been violated. The document consists of a methodological research substantiation, development of a conceptual theoretical framework based on a referential analysis that allows for a logical analytical criterion that makes it possible to develop relevant conclusions.Ítem Solo Metadatos Aplicación del error de tipo y error de prohibición por parte de los jueces de instancia de la ciudad de Azogues(Universidad Católica de Cuenca., 2021) Idrovo Siguenza, David Rosendo; Quevedo Quinteros, Manuel Ramiro; 0350004743; ., .The limits of the punitive power are immersed in the Constitution of the Republic, sin ce it has a legislative task within the principies of application, interpretation and systematization. lt was elaborated an analysis on the application of error of type and error of prohibition by the judges of instance in the legal field, especially, the way they act when they face these new articles included in the Organic Integral Penal Code. The error is the false interpretation, on sorne legal element of the criminal behavior, made by an individual who has committed a crime, resulting in what we know today as the error of type and the error of prohibition. The error of type implies objective and subjective elements of the criminal type, excluding malice. The error of prohibition is given by a lack of knowledge of a prohibited action, that is to say, the person has a lack of knowledge of the prohibited norm, which excludes the unlawfulness. In view of these new articles, it was evidenced that judges do not know many cases in which these types of errors are presented in Criminal Law, it was concluded that certain specific cases should be analyzed disaggregating the facts and actions that are presented, as well as whether the requirements are met for these to be criminally punishable.Ítem Solo Metadatos Las audiencias telemáticas y la afección al principio de inmediación en Ecuador(Universidad Católica de Cuenca., 2021) Vicuña Guaillas, Alba Elizabeth; Pozo Cabrera, Pablo Arturo; 0302042569; ., .In this research, a study on the breach of the principie of immediacy dueto the physical absence of witnesses and experts in telematics hearings was carried out. In this research project a qualitative approach was applied, with a descriptive scope in arder to understand the main legal concepts of the principie of immediacy in different legal entities more directly, the methods used were dogmatic, inductive-deductive and analytical, the techniques applied were the file and scientific data base. Regarding the results, it has been determined that the telematics hearings carried out since the beginning of the Covid 19 pandemic damaged the principie of immediacy, since they limited the judge's labor in directing the judicial environment and making a value judgment on the witness evidence. Therefore, it affected the constitutional rights of the parties by issuing sentences that were not in accordance with the law.Ítem Acceso Abierto La citación telemática autónoma como garantía del debido proceso y de la tutela judicial efectiva(Universidad Católica de Cuenca., 2023) Ruiz Cantos, Camila Soleda; Ortiz León, Linda Carolina; Sanchéz Zambrano, Santiago; 0302986344; 0302991864; ., .This research analyzed the need to implement the telematics summons as an autonomous procedure to guarantee the right to effective judicial protection and due process. This study used the inductive-deductive methodology and the analytical-synthetic method to analyze from a dogmatic and theoretical perspective what refers to the telematics summons and its reform within the General Organic Code of Processes (COGEP by its Spanish acronym). The findings showed that the telematics summons is limited within the reform as far as the subpoena process is concerned, so it is necessary to implement an amendment that allows its autonomy, thus enabling compliance with due process and adequate judicial protection. In conclusion, establishing the procedural autonomy of the telematics subpoena reduces the time of the subpoena process. It automates certain activities within the judicial function, improving its operability and technical effectiveness.Ítem Acceso Abierto El cobro de contribución especial de mejoras en el GAD Municipal de Azogues por la construcción de colectores marginales a los ríos Burgay Tabacay fase I y II(Universidad Católica de Cuenca., 2023) Urgilés Lozano, Jonnathan Orlando; Ormaza Ávila, Diego Adrian; 0302621941; ., .OBJECTIVE: To justify the violation of the right to property due to the illegitimate collection of special contributions for improvements without ordinance by the Azogues Municipal Government in the execution of the construction work of the Marginal Collectors phase I and II. METHODOLOGY: The methodology was qualitative since it started from a bibliographic-dogmatic approach; the analytical-synthetic method established the legal effects produced by the lack of use of the principle of non-confiscation in the execution of the collection of values to be paid. In addition, a legal analysis of professionals in tax law was conducted through an interview. RESULTS: The study showed that there is an illegality in charge of extraordinary contributions for improvements in the construction works of the Marginal Collectors Phase I and II because, despite the existence of a general ordinance, it does not contemplate the charging process for the construction of collectors, and also, the works in question are neither finished nor in execution to establish the respective charging process. CONCLUSIONS: There is no violation of the right to property or the principle of non-confiscation due to the payment of extra contributions to improve this work. However, there is a violation of the principle of legality due to the unjustified charging with the benefit provided.Ítem Acceso Abierto Contratos de adhesión y la vulneración al principio de autonomía de la voluntad de las partes(Universidad Católica de Cuenca., 2023) Espinoza Guamán, Gabriel Isaías; Ávila Cárdenas, Xavier Francisco; 0302492749; ., .This research analyzes the legal figure of adhesion contracts against the principle of autonomy of the parties' desire due to the problematic situation of whether or not there is an affectation to this type of contract. This research aims to determine if the abovementioned principle is violated within that contractual figure due to the absence of a previous negotiation when initiating this legal business. To achieve this, this qualitative analysis, through an inductive-deductive methodology and with a descriptive approach, investigates the principle of party autonomy, its conceptualization, its legal nature, and a brief study of it in comparative law. Subsequently, the figure of adhesion contracts is examined, indicating its conceptualization and characteristics, among other aspects; in addition, what is related to the prior negotiation is analyzed to expose its relation later and determine the moment in which the affectation to this principle is produced, specifying that it is produced in the pre-contractual moment of this legal figure due to the absence of prior negotiation. Finally, concrete conclusions are drawn regarding the current reality of the exposed problem, as well as recommendations to prevent the violation of the principle of free will with this contractual figure.Ítem Acceso Abierto Las contribuciones especiales de mejoras en el Ecuador y su afección al principio constitucional de seguridad jurídica(Universidad Católica de Cuenca., 2020) Cabrera Lucero, María Mercedes; Ormaza Ávila, Diego Adrián; 0106199300; ., .Legal certainty is a fundamental principle within the tax field because it must conform with the Constitution for the compliance of the proper laws. In the development of this research; first, a study of the legal certainty importance in the tax regime was given. Then the special contributions of improvements were analyzed, as well as how they are regulated within the Organic Code of Territorial Organization, Autonomy, and Decentralization (COOTAD, in Spanish), which violets the benefit that is the basis of this tax for the construction of public work. Finally, a thorough analysis of the conflict caused by the regulation of this tax against the principle of legal security was conducted, to end providing the conclusions obtained with the development of this work.Ítem Acceso Abierto La custodia compartida respecto al interés superior del niño en la Legislación Ecuatoriana(Universidad Católica de Cuenca., 2020) Cabrera Calle, Karol Andrea; Ávila Cárdenas, Francisco Xavier; 0301672143; ., .Currently, in the Ecuadorian legislation, single-parent custody is recognized for underage children in the case of separation from their parents; this fact restricts the enjoyment of the rights of the boy or girl in their integral development. This situation would be solved with the legal recognition of shared custody, which aims to materialize the joint parental co-responsibility of the father and mother, and allows the fulfillment of the rights of children and adolescents. In this investigation, a legal and doctrinal study of shared custody is conducted concerning the Legal Principle of the Best Interest of the Child, using the inductive-deductive and analytic-synthetic method, taking into account its conceptualization, scope, and incidence in the respect and fulfillment of the rights of children or adolescents, based on International Legal Instruments and the Ecuadorian legal system.
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