Trabajos de Titulación - Derecho
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Item Open Access El dolo eventual y su aplicación en el sistema jurídico ecuatoriano(Universidad Católica de Cuenca., 2025) Villavicencio Calovi, Alejandro; Hidalgo Palacios, José Felipe; 0104891155This research analyzes the theories of eventual malice in criminal law, with an emphasis on their application in the Ecuadorian legal system. The study begins with a central issue: the lack of express regulation of eventual malice in the Comprehensive Organic Criminal Code (COIP, by its Spanish acronym) of Ecuador, which leads to legal gaps and inconsistencies in jurisprudence—mainly in cases where the perpetrators assume serious risks to protected legal interest such as life, health, or the environment, and are not adequately punished due the absence of direct intent. Through a comparative analysis of doctrinal theories, it will be identified that the combination of Claus Roxin (normative decision against the protected legal interest) and Günter Stratenweth (taking the risk seriously) proposals offers the most appropriate framework for Ecuador. This hybrid theory overcomes the limitations of classical approaches based on subjective will by prioritizing awareness of the risk (e.g., ignored technical reports) and conscious acceptance of the outcome (e.g., prioritizing profits over safety measures). The study demonstrates through landmark cases in Ecuador that the courts often classify behaviors as recklessness that, under the Roxin-Stratenweth theory, should be considered eventual malice. This leads to impunity and fails to protect constitutionally protected legal interests (Article 66 of the Constitution). As a central proposal, a reform to the COIP is proposed to incorporate eventual malice under the definition “A person acts with eventual malice when, in spite of foreseeing the high risk of harming a protected legal interest, decides to carry out the action or omission, accepting such outcome as a probable consequence.”Item Open Access Responsabilidad civil del médico, el daño(Universidad Católica de Cuenca., 2025) Gavilanes Yepez, Nathaly Steffania; Culcay Villavicencio, Iván Patricio; 0106665060This paper examines physicians’ civil liability in Ecuador, with emphasis on the lack of specific regulations governing damages caused in medical practice. The research identifies legal gaps that generate uncertainty for both patients and healthcare professionals, and proposes solutions to strengthen legal certainty in this area. The current legal framework is studied, including the Constitution, the Civil Code, the Comprehensive Organic Criminal Code, and relevant case law. Furthermore, international experiences from countries such as Spain, Chile, and Colombia, which have developed clearer regulatory frameworks, are compared. The research employs a mixed-methods approach (qualitative-quantitative), combining doctrinal analysis with a field study. It concludes that the absence of specific legislation affects the protection of patients' rights and the professional safety of physicians. As a solution, a legal reform is proposed that defines medical harm as an autonomous legal concept, establishes standards of medical care, and develops mechanisms for prevention and conflict resolution, including specialized courts and mandatory mediation systems.Item Open Access Incidencia de la sentencia 71-21-IN/25 en los derechos de autonomía individual, intimidad familiar y protección de la familia en Ecuador(Universidad Católica de Cuenca., 2025) Molina Iñiguez, Karen Valentina; Robles Fernández, Paul Andrés; 0106468432This research analyzes the Constitutional Court's interpretation in ruling 71-21-IN/25 and its impact on the recognition of individual autonomy, family privacy, and family protection within the framework of the modernization of family law in Ecuador. To this end, the arguments presented in the majority rule and its concurrent and saved votes are reviewed; international regulations on no-fault divorce are examined; and finally, a critique of the analyzed ruling is offered. Based on this analysis, it is concluded that ruling 71-21-IN/25 issued by the Constitutional Court is not compatible with the development of the rights of the Ecuadorian family and contemporary society; furthermore, it violates and restricts the rights of individual autonomy, family privacy, and family protection, among others. The research is developed with a qualitative, non-exploratory approach, which allows for exploring the depth of the complexity and problems involved in the Constitutional Court's interpretation of the grounds for contested divorce in Ecuador.Item Open Access Análisis jurídico de la sentencia 1-11-EI/22 en el contexto de la aplicación del principio de imparcialidad(Universidad Católica de Cuenca., 2025) Ponce Ponce, Daniel Alexander; Robles Fernández, Paul; 0106138076There are constitutional principles that can govern a legal system. In the case of Ecuador, its 2008 constitution emphasizes the principle of impartiality as an essential pillar for the administration of justice. However, it is important to underscore that legal and/or judicial mechanisms such as voluntary abstention (excuse) and challenge (recusation) also exist, which aim to safeguard the objectivity of a judge or competent authority and strengthen the judicial system. In Ecuador, indigenous justice is recognized as a form of autonomous administration for these indigenous peoples and communities, the same sovereignty granted by Ecuador's ordinary legislation, and aims to preserve ancestral customs. In that sense, Judgment 1-11-EI/22 of the Constitutional Court of Ecuador addresses the principle of impartiality in the "Chukidel Ayllullakta" community in the Saraguro canton, in the province of Loja. This judgment denounces the lack of impartiality of one of the representatives of the indigenous commission of this community and similarly alleges the violation of due process. This generates a clear debate: Does indigenous justice violate the rules of due process by not guaranteeing the application of mechanisms such as voluntary abstention and challenge by the principle of impartiality?Item Open Access La mediación como herramienta para resolver conflictos intrafamiliares en el cuidado de adultos mayores enfocado en el Ecuador.(Universidad Católica de Cuenca., 2025) Jiménez Jiménez, Alyson Nicole; Calle Masache, Nube Catalina; 0105348676In the country, there are families who face disagreements regarding the distribution of responsibilities for the care of the elderly, and in these cases, a lack of application of mediation to resolve them is observed. This becomes a challenge when generational differences affect perceptions of caregiving, ultimately causing family tensions. Mediation aims to improve communication and relationships among family members by creating a space where they can express themselves and reach a solution. The situation of dependency does not negatively impact all families; however, in those it does, it ends up affecting the quality of life of the elderly, the caregivers, and family cohesion. Therefore, it is presented as a tool aimed at reducing negative feelings, confrontation, and discord among family members, while also providing a space for the elderly to participate in the process.Item Open Access Análisis de la prueba plena en contravenciones de tránsito por conducción en estado de embriaguez en Cuenca-Ecuador durante el 2023(Universidad Católica de Cuenca., 2025) Aguilar Samaniego, Alejandro Sebastián; Culquicondor Vivanco, Axel Isaac; Pinos Jaén, Camilo Emanuel; 1105999799; 0953481959This research analyzed the rulings for contravention offenses related to driving under the influence of alcohol in Cuenca, Ecuador, during 2023, identifying the evidence that judges use as conclusive to sanction such behavior. To this end, it was based on regulations, legal doctrine, and jurisprudence regarding evidence, due process, rationale, and data collection instruments such as questionnaires applied to rulings. This allowed for data processing that facilitated the tabulation of the resulting information, yielding the index of processes per month, the gender and age of the defendants, the defense strategies employed, and the evidence used to establish responsibility. Finally, through the analysis of the data and its findings, this research identifies inconsistencies in the rulings regarding the deduction of points from driver's licenses for specific periods, confusion between types of evidence—breathalyzer test and blood alcohol test—and the use of evidentiary means considered in legal doctrine as circumstantial evidence being treated as conclusive proof.Item Open Access Análisis crítico del artículo 267 del Código del Trabajo Ecuatoriano de los derechos y obligaciones de los herederos del empleador frente a los de las y los trabajadores domésticos(Universidad Católica de Cuenca., 2025) Zhau Tenesaca , Hillary Nicole; Romaní Sarango, Marlon Alexander; Sánchez Urgilés, Andrés; 0150795474; 0750017360This study examines the issues raised by Article 267 of the Ecuadorian Labor Code, which establishes the continuation of domestic service contracts through the heirs of the deceased employer. This scenario presents various practical challenges for the application of Article 267 and also contains contradictions within the same legal framework, alongside constitutional and international principles concerning fundamental human rights. Through this analysis, it is argued that Article 267 of the Labor Code infringes upon various rights of both heirs and domestic workers, disregarding essential elements of contract law and fundamental human rights. In this regard, it is asserted that repeal is the most viable option to preserve fair and equitable labor relations, as well as the fundamental human rights of the parties involved.Item Open Access Análisis del sistema de progresividad dentro de la rehabilitación social en el centro de rehabilitación social Turi – Cuenca.(Universidad Católica de Cuenca., 2025) Arévalo Tocachi, David Sebastián; Guerra Peláez, Ruth Jacqueline; Monsalve Robalino , Bernardo Xavier; 0105722706; 0107001034The study conducted at the Turi Social Rehabilitation Center in Cuenca, Ecuador, focused on evaluating the impact of the 2019 reforms to the Ecuadorian Comprehensive Organic Criminal Code (COIP, by its Spanish acronym) on the social rehabilitation of prisoners. Specifically, the study sought to understand how the legislative changes affected the implementation of a progressive treatment system within the penitentiary. The methodology used was qualitative, incorporating dogmatic, exegetical, and analytical-synthetic approaches, which enriched the interpretation of the study of the legal reforms and their implications for prison practices. As a result, participants indicated that the restrictions of the COIP, especially concerning access to semi-liberty and parole regimes, created barriers to the resocialization of prisoners due to limited access to mobility between the different levels of the prison hierarchy. This meant that many well-behaved prisoners could not access transitional opportunities that would aid in their social reintegration. Furthermore, overcrowding and inadequate prison facilities were also identified as contributing to the ineffectiveness of rehabilitation programs. In conclusion, the research determined that the COIP reform has failed to achieve the objective of social reintegration due to the restrictions imposed and the lack of relevant resources for effective and adequate rehabilitation. It was suggested to address legislative change with a comprehensive approach, increase the infrastructure of penitentiary centers, and formulate a more flexible system that responds to the rehabilitation needs of inmates.Item Open Access La responsabilidad penal médica conforme el artículo 218 del Código Orgánico Integral Penal: análisis normativo(Universidad Católica de Cuenca., 2025) Yambay Díaz, Angie Del Carmen; Pacheco Solano, Jaime Alberto; 0750286395This study analyzes medical criminal liability under Article 218 of the Comprehensive Organic Criminal Code (COIP, by its Spanish acronym), highlighting the lack of precision in regulating medical neglect and the risks of disproportionate punitive application. It examines how the law does not clearly distinguish between intentional or negligent omission by a healthcare professional and situations in which the lack of care is due to external factors, such as a lack of supplies, work overload, or structural deficiencies in the healthcare system. From the perspective of penal guarantees and minimal criminal law, the importance of limiting the intervention of criminal law only to cases of gross negligence is highlighted, avoiding the unjust criminalization of physicians due to circumstances beyond their control. The lack of objective criteria in Ecuadorian regulations can lead to legal uncertainty and affect the provision of healthcare services. In this context, it is concluded that it is necessary to reform the COIP to guarantee a proportional and adequate legal framework that protects both patients' rights and the security of healthcare professionals.Item Open Access Análisis de las acciones afirmativas en los concursos de méritos y oposiciones de docentes del distrito zonal 6 del cantón Cuenca(Universidad Católica de Cuenca., 2025) Ávila Durán, María Belén; Carrasco Loyola, Juan José; 0105338024This paper analyzes the procedure developed to fill teaching vacancies in the Ecuadorian public sector, along with each phase of the process that applicants undergo to join the teaching community, emphasizing the transparency with which these procedures are conducted. Additionally, the mechanisms implemented by the State to safeguard and guarantee the effectiveness of the right to education for all children and adolescents were examined. From a legal perspective and through a qualitative method, this study explores how the State guarantees equal access to opportunities for all individuals, in accordance with the principles of formal and substantive equality and non-discrimination, as contemplated in our Constitution. The findings reveal a somewhat different and questionable reality regarding the true nature of affirmative actions.Item Open Access Visibilización de la violencia estructural por identidad de género a través del transfemicidio en Ecuador: Un análisis con derecho comparado(Universidad Católica de Cuenca., 2025) Sánchez Díaz, Vanessa Estefanía; Monsalve Robalino, Bernardo Xavier; 0107328445The research addresses the issue of transfemicide in the context of Argentina, Ecuador and Mexico; transfemicide is defined as the murder of trans women because of hatred towards their gender identity, reflecting the systematized structural violence that has contributed to cycles of discrimination and violence (Parrales,2023). In Ecuador, even with the progress of legal regulations on LGBTQI+ rights such as the decriminalization of homosexuality or equal marriage with the 2008 constitution, there are still high rates of violence against this community and it has worsened with the lack of criminalization and public policies to protect their rights, Argentina shows progress in terms of rights as it is characterized by the implementation of effective public policies that have contributed to the decrease in rates of structural violence against women, which has made this problem visible, however, it has shown challenges in its correct application. In the three countries there are common factors at the moment of making visible the statistics since poverty, social exclusion, lack of employment, poor access to adequate health systems, limited access to justice and sex work are the predominant factors, thefight against transmicide not only requires a typification in normative bodies but also the Visibilization of structural violence to form a collective conscience.Item Open Access Análisis de la presunción de inocencia en sentencias absolutorias que mantienen medidas de protección en casos de violencia contra la mujer(Universidad Católica de Cuenca., 2025) Vallejo Fajardo, James Matthew; Monsalve Robalino, Bernardo Xavier; 1723099576The presumption of innocence is a basic guarantee of the right to due process, considered one of the fundamental principles of current criminal law. It is regulated by the Constitution of the Republic of Ecuador (2008), the Comprehensive Organic Criminal Code, and other international human rights treaties. However, in the context of violence against women and family members, cases have been identified in which, despite acquittals, protection measures are upheld, potentially violating this right. This study examines the legal justification for these measures and their implications for the rights of the accused through an analysis based on various methodologies, such as the inductive-deductive method, legal exegetical analysis, and legal dogmatics. It is evident that the continued enforcement of protective measures following an acquittal may violate the right to presumption of innocence due to the lack of sufficient legal basis for their application once a verdict of innocence has been reached. This situation creates a conflict in legal practice that should be reviewed in accordance with national and international norms.Item Open Access Impacto de la inteligencia artificial en el sistema legal ecuatoriano para la resolución de los conflictos(Universidad Católica de Cuenca., 2025) Orellana Lucero, Carlos Enrique; Culcay Villavicencio, Iván Patricio; 0105079883This research paper examines how the exponential advancement of technology has directly influenced society and, thus, the daily lives of individuals who are generally immersed in the use of technological devices. As a result, legal science has had to start regulating its use several decades ago; however, the positive factors of technology are evident. Therefore, this research article directly analyzes the relationship between technology and law and thus presents the possible inclusion of artificial intelligence in the judicial systems of each country, with special emphasis on Ecuador, as this country presents a series of inefficiencies in the processing of court cases, especially the lack of procedural celerity and other aspects that cause dissatisfaction among users.Item Open Access Desafíos de la responsabilidad civil extracontractual por el uso de inteligencia artificial en la legislación ecuatoriana.(Universidad Católica de Cuenca., 2025) Sánchez Correa, Nixon Rogelio; Calle Masache, Nube Catalina; 0150026482Extra-contractual civil liability could present several legal challenges regarding damages caused by intelligent systems. This issue arises from various circumstances, such as the lack of a unified concept of what artificial intelligence is, the absence of regulations on artificial intelligence within the Ecuadorian legal system, and the inherent characteristics of intelligent systems, such as opacity, interconnectivity, complexity, and autonomy. In the global context, the use of artificial intelligence, as well as its incorporation into various sectors, has grown significantly, which implies that people may be exposed to the damages and inherent dangers of intelligent systems. This situation has led several states globally to seek regulatory solutions to this problem. In the case of Ecuador, there is still no specific regulation governing artificial intelligence; however, several draft bills have already been submitted for this purpose, and they are influenced by the European Union's Artificial Intelligence Act.Item Open Access Entre la seguridad y la justicia: un análisis crítico a la inserción de la figura del juez sin rostro en Ecuador y su impacto en el bloque de constitucionalidad(Universidad Católica de Cuenca., 2025) Cunalata Montenegro , Ana Belén; Villacis Luzuriaga, Ashley Maylin; Vallejo Cárdenas; 0106124860; 0706805033The legal figure of faceless judges has been attempted in some countries, especially those with serious security problems due to drug trafficking and organized crime. However, some positions suggest this figure contradicts the fundamental rights of defendants. Therefore, this research proposed a theoretical, jurisprudential, and comparative analysis, exploring conceptual and practical approaches to its incompatibility with constitutional principles. A comparative study was also conducted on the implementation of concepts similar to faceless judges in other legal systems, analyzing their nature, foundations, scope, and impact on the legal system. This demonstrates how their implementation in Ecuador creates direct tension with the constitutional principles of publicity, due process, and effective judicial protection. In conclusion, this implementation violates human rights and the criminal process's rights, undermining the legitimacy, trust, and transparency of the justice system.Item Open Access Entre la seguridad y la justicia: un análisis crítico a la inserción de la figura del juez sin rostro en Ecuador y su impacto en el bloque de constitucionalidad(Universidad Católica de Cuenca., 2025) Cunalata Montenegro, Ana Belén; Villacis Luzuriaga, Ashley Maylin; Vallejo Cárdenas, Paola Priscila; 0106124860; 0706805033This research analyzes the legal implications of the termination of legal representation due to the death of the principal. The study of existing regulations allows for the identification of contradictions between the Civil Code and the General Organic Code of Processes (COGEP, by its Spanish acronym), thereby enabling an evaluation of the effects of post-mortem representation. The first section examines the historical background of the mandate and judicial representation, as well as the legal provisions of the Civil Code that regulate the termination of the mandate, including the cause of death. The second section identifies the regulatory contradictions that arise with the provisions of Article 45 of the COGEP, and the regulatory conflicts these provisions generate in the practice of the profession. The third section, in order to strengthen the research, conducts a comparative analysis of the legislation from Latin American countries such as Argentina and Chile, which, like Ecuador, have similar civil code but with variations in their procedural provisions. In addition, by implementing a qualitative methodology, valuable insights from legal professionals, including judges and practicing attorneys, are included.Item Open Access Análisis de los efectos de la infiltración del crimen organizado en la justicia ecuatoriana(Universidad Católica de Cuenca., 2025) Duque Chuchuca, Johnny Mauricio; Hidalgo Palacios, José Felipe; 0151105830This paper analyzes the impact of the infiltration of organized crime into the Ecuadorian judicial system and how this results in acts of corruption within the public institution responsible for safeguarding the rights of society. It examines different concepts through a doctrinal, jurisprudential, and legal framework to identify the operation of these phenomena within the State and their consequences. Furthermore, it addresses a specific case demonstrating how this influence has undermined the Ecuadorian justice system. It emphasizes the importance of strengthening the transparency of judicial institutions and their officials. The study concludes by advocating for legal reforms and the implementation of necessary public policies to address the issues affecting society's coexistence, thereby ensuring an effective, transparent, and resilient judicial system against the challenges it faces.Item Open Access La eficacia de una normativa especial que regule el uso de la inteligencia artificial para evitar ciber-delitos en el Ecuador(Universidad Católica de Cuenca., 2025) Andrade Arias, Wellington Mateo; Yurank Tsamaraint, Luis Alberto; Martinez Albornoz, Juan Pablo; 0150747368; 1725573859This research examines the need for specialized legislation to prevent cybercrimes in Ecuador. During the pandemic and post-pandemic eras, the rate of cybercrime has increased considerably. Countries such as Mexico, Brazil, and Ecuador have reported the highest number of cybercrimes due to the emergence of new digital tools that have gained considerable popularity. However, the malicious use of technology has led to an increase in cybercrimes within the Ecuadorian state. If Ecuador plans to implement regulations concerning Artificial Intelligence, it should be incorporated into the Organic Law on Personal Data Protection. This legal body was established in 2021 and is responsible for regulating data processing; however, in its eighty-six articles, none mentions regulating artificial intelligence, nor does it guarantee the prevention of cybercrimes.Item Open Access Implicaciones legales de la terminación de la procuración judicial por muerte del mandante – Análisis de legislación comparada(Universidad Católica de Cuenca., 2025) Fajardo Agudo, Luisa Alexandra ; Verdugo Segovia, Brando Leonardo; Parra Vicuña, Raúl Mauricio ; 0106990047 ; 0106842941This research analyzes the legal implications of the termination of legal representation due to the death of the principal. The study of existing regulations allows for the identification of contradictions between the Civil Code and the General Organic Code of Processes (COGEP, by its Spanish acronym), thereby enabling an evaluation of the effects of post-mortem representation. The first section examines the historical background of the mandate and judicial representation, as well as the legal provisions of the Civil Code that regulate the termination of the mandate, including the cause of death. The second section identifies the regulatory contradictions that arise with the provisions of Article 45 of the COGEP, and the regulatory conflicts these provisions generate in the practice of the profession. The third section, in order to strengthen the research, conducts a comparative analysis of the legislation from Latin American countries such as Argentina and Chile, which, like Ecuador, have similar civil code but with variations in their procedural provisions. In addition, by implementing a qualitative methodology, valuable insights from legal professionals, including judges and practicing attorneys, are included.Item Open Access Aplicación de la acción de daños y perjuicios de manera autónoma, como un mecanismo de reparación en los contratos bilaterales(Universidad Católica de Cuenca., 2025) Ordoñez Ochoa, Paul Daniel; Villavicencio, Iván Culcay; 0104654199
