Examinando por Autor "Arce Cuesta, Galilea de Jesús"
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- ÍtemAcceso AbiertoLa falta de mecanismos objetivos para determinar la indemnización por el daño inmaterial(Universidad Católica de Cuenca., 2022) Arce Cuesta, Galilea de Jesús; Calle Masache, Nube Catalina; 0150023828; Ordoñez Carpio, Fernando EstébanThe conflict in the mechanisms of valuation of moral damages in the development of civil proceedings in the judicial system of Ecuador has constantly been a matter under study since it is evident that there are no objective mechanisms for the interpretation of the moral damage that the judge carries out. This, in turn, affects the attainment of the practical materialization of justice, which is a purpose of the man of rights in the face of the violation of the psychic or spiritual integrity of the human being. The need for the granting of legal instruments that ensure the protected juridical asset that encompasses the rights of the personality is expressed; for this reason, the objective of this research was to perform an analysis of how the absence of instruments of an objective nature, to establish a fair compensation, produces arbitrariness in the correct development of the legal system. A qualitative approach was used, implementing the systematic method to identify the principles on which the judge bases his interpretation of the immaterial damage. The comparative method was also employed to compare the legal regulation of immaterial damage in foreign legislation (Argentina, Mexico, and Chile) in civil matters. Finally, the analytical-synthetic method was applied to determine whether the non-existence of objective mechanisms in the interpretation of moral injury violates the right to fair compensation.