Trabajos de Titulación - Derecho
URI permanente para esta colecciónhttps://dspace.ucacue.edu.ec/handle/ucacue/10
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Ítem Acceso Abierto La comercialización de productos farmacéuticos falsificados y la reparación integral a las víctimas(Universidad Católica de Cuenca., 2025) Novillo Fajardo, Lenin Damián; Moreno Morejón , Fernando Patricio; 0106229289The fundamental right to health is undermined by the counterfeiting of medicines, a business that endangers consumer health. In Ecuador, the counterfeiting of medicines is penalized under the Organic Comprehensive Criminal Code (COIP, by its Spanish acronym). Additionally, the Agency for Regulation, Control, and Sanitary Surveillance (ARCSA, by its Spanish acronym) was established as part of the measures adopted by the State to fulfill its obligations to guarantee access to quality, safe, and effective medicines. However, these measures do not have sufficient impact on rights as important as health, especially when we observed that most victims lack access to adequate reparation, as no surveys have been conducted to identify them. Therefore, by becoming aware of the consumption of such medicines, these victims may resort to jurisdictional guarantees to assert their right to comprehensive reparation, adopting various measures to restore the violated right to its previous state.Ítem Acceso Abierto Análisis jurídico del despido ineficaz frente al visto bueno solicitado por trabajadores con fuero de estabilidad reforzada.(Universidad Católica de Cuenca., 2025) Jiménez Granda , Verónica Yadira; Carpio Flores, Luis Manuel; 0105276935In Ecuador, the "visto bueno" (approved dismissal) is a legal mechanism established in the Labor Code that allows both employers and employees to request the termination of an employment relationship for justified reasons. When requested by the employee, the visto bueno serves as a protective measure against serious employer misconduct that violates the worker's rights. The right to work is a fundamental principle also enshrined in the Constitution of the Republic, guaranteeing the stability and protection of all workers—especially those in vulnerable situations, such as pregnant women, those in the postpartum period, and union leaders. Article 172 of the Labor Code states that an employee may request the "visto bueno" in cases such as non-payment of wages, workplace harassment, unilateral changes to the employment contract, or breach of the agreed-upon conditions; therefore, employees are not obligated to remain in a hostile work environment or under unfair conditions. In conclusion, the "visto bueno" requested by an employee is a key mechanism in Ecuadorian labor legislation that strengthens balance in labor relations and enables a fair resolution in cases of abuse or breach.Ítem Acceso Abierto Importancia de la prueba pericial en el delito de reclutamiento de menores en organizaciones delictivas en el cantón Arenillas.(Universidad Católica de Cuenca., 2025) Rodas Alvarado, Luis Eduardo; Campoverde Sandoval, Ornella Yulianna; Pacheco Solano, Jaime Alberto; 0107761306; 0704694926Organized crime threatens public security and the stability of the State by recruiting minors, taking advantage of their lack of criminal responsibility to commit crimes, maintain territorial control, and achieve economic growth. This research analyzes this phenomenon in Ecuador from a legal-criminal and doctrinal perspective, aiming to strengthen the juvenile justice system and protect the rights of children and adolescents. A qualitative methodology was used, based on a review of national and international legislation and documentary analysis on organized crime, recruitment of minors, and the effects of socio-educational measures and rehabilitation programs. In addition, interviews were conducted with justice administrators and a prosecutor specializing in juvenile offenders. The results revealed shortcomings in the fulfillment of the objectives of socio-educational measures and rehabilitation programs, which fail to disengage minors from criminal networks. Given this situation, it is concluded that structural adjustments to the juvenile justice system are necessary to balance the rights of minors with the victims’ demands for justice, and to strengthen rehabilitation programs and policies aimed at reducing minors’ involvement, recidivism, and recruitment into criminal activities.Ítem Acceso Abierto 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; CULCAY VILLAVICENCIO, IVÁN; 0104654199Contract law originates from the enforcement of consumer rights. In developing these procedures, modern doctrine supports the view that the action for damages is autonomous—an interpretation that complicates the creditor's full compensation. This study aimed to analyze the criteria of the Chilean Supreme Court and its evolution. To this end, it is proposed to determine how the action for damages, when applied autonomously, could function more efficiently as a contractual reparation mechanism and how the procedure for claiming this action is established under Ecuadorian regulations. A systemic socio-legal methodology was applied, supported by the exegetical method. The law of damages, and consequently, the compensation system for damages, requires establishing criteria, instruments, or mechanisms for valuing and liquidating essential assets or guarantees. There are no grounds to deny the autonomy of compensation for damages concerning other legal protection mechanisms, whether interpreted as the original breach obligation or as a new one.Ítem Acceso Abierto Derecho de repetición de obligados subsidiarios en un proceso de alimentos ante la incapacidad laboral del alimentante principal.(Universidad Católica de Cuenca., 2025) Calle Álvarez, Gabriel Misael; Gallegos Avendaño, Mónica Cecibel; 0105501274This research addresses the topic of subsidiary obligors in the right to child and adolescent maintenance. Specifically, it focuses on the right of recourse against the primary provider when they assume payment for the corresponding child support. This is established in the Code of the Childhood and Adolescence in Article 5 of Title V, Chapter 1, which states that they may subsequently exercise this right against the primary provider. Additionally, the violation of the patrimonial and economic rights of subsidiary obligors to exercise the payment of an obligation that does not initially correspond to them will be analyzed. When the primary provider is affected, they cannot exercise the right of recourse recognized by Ecuadorian law. This is not mentioned anywhere in the legal system except for the Childhood and Adolescence Code. Legal bodies such as the General Organic Code of Procedures (COGEP by its Spanish acronym) or the Civil Code acquire another significance related to administrative issues or payments of what is not due. In summary, the real, permanent, and significant affectation of the primary provider's ability to provide for themselves causes those paying on behalf of the affected provider to have their rights and patrimony violated.Ítem Acceso Abierto La autopuesta en peligro de la víctima como una conducta típica objetiva en el Ecuador.(Universidad Católica de Cuenca., 2025) Millán Torres, Lalia Camila; Pozo Cabrera, Pablo Arturo; 0704981083This article will examine the concept of self-endangerment, a principle in legal theory that determines the limitation of criminal imputation in cases where responsibility for the consequences of a harmful event is attributed to the victim of the crime. It occurs when the victim exposes themselves through a particular action to an impermissible risk and danger that infringes upon their legal rights. Consequently, the victim’s behavior and its implications within victimology will be studied. The starting point will be the definition of the elements that constitute the concept of “self-endangerment” to establish the moment when an action creates a risk to the victim’s interests. Furthermore, a critical analysis of actions undertaken by the victim at their own risk will be conducted, framed within the theory of objective imputation and the principle of self-responsibility.Ítem Acceso Abierto La presunción de máxima embriaguez y su impacto en el debido proceso y presunción de inocencia en Ecuador(Universidad Católica de Cuenca., 2025) Angamarca García, Yessenia Beatriz; Monsalve Robalino, Bernardo Xavier; 0302948393This thesis addresses the presumption of maximum intoxication as defined in Article 464, numeral 5 of the Comprehensive Organic Criminal Code (COIP by its Spanish acronym), and how it violates the application of due process and the presumption of innocence in misdemeanor traffic proceedings for driving under the influence of alcohol. Therefore, the main objective of the research was to analyze and describe the impact of sanctioning a driver based on simple presumptions. A methodology with a qualitative approach and a non-experimental, descriptive method was proposed. For the theoretical development, we relied on the review of bibliographic documentation, scientific databases, doctrine, and comparative law. According to the analysis carried out, it is concluded that a presumption is not enough to entail criminal responsibility. Therefore, a legal reform is proposed to create a specific criminal offense and for the legislator to determine whether the refusal to undergo verification tests should be considered a crime or a misdemeanor, without implying, without evidence, that the driver was under the influence of alcohol.Ítem Acceso Abierto La terminación de los nombramientos provisionales sin contar con el ganador del concurso de méritos y oposición como vulneración de los derechos al trabajo y la seguridad jurídica(Universidad Católica de Cuenca., 2025) Benavides Arévalo, Marco Steven; Crespo Crespo, Miguel; 0106990195In Ecuador, provisional appointments are issued by the appointing authorities to fill vacant positions. These appointments end once a merit-based competition is conducted, ultimately declaring a winner and leading to a permanent appointment. This approach aims to highlight the administration's failure to perform such merit-based competitions, which results in the arbitrary dismissal of employees. The research examines and identifies connections among legal doctrines, court rulings, and comparative law. To end provisional appointments, it must be ensured that the conditions recognized in the legal frameworks of our legislation are fulfilled, ensuring that the rights to work and legal certainty are not undermined or violated.Ítem Acceso Abierto La declinación de competencia de la justicia indígena en Ecuador. Análisis jurisprudencial desde la última conformación de la Corte Constitucional(Universidad Católica de Cuenca., 2025) Alvarez Aguirre , Said Mateo; Piedra Cárdenas, Emmy Yuleise; Pinos Jaén, Camilo Emanuel; 0150529279; 0705945384This paper analyzes the jurisdiction and transfer of jurisdiction from the ordinary justice system to indigenous justice in Ecuador, based on the study of the decisions of the Constitutional Court during its latest conformation. The qualitative research used inductive-deductive and analytical-synthetic methods based on normative analysis, international instruments, and relevant rulings. It became evident that, although legal pluralism is recognized in the Constitution, its practical application faces tensions regarding the coordination between the ordinary and indigenous jurisdictions. The jurisprudence of the Constitutional Court established important parameters to delimit the scope of indigenous justice and regulate the transfer of jurisdiction, although there are still challenges in the consolidation of an effective dialogue between systems. It is concluded that strengthening intercultural coordination is essential to guarantee the effectiveness of legal pluralism and the collective rights of indigenous peoples and nationalities in Ecuador.Ítem Acceso Abierto Reforma a la ley de datos para integrar el uso y control de IA en la gestión y procesamiento de datos(Universidad Católica de Cuenca., 2025) Criollo Vera, Christian Adrián; Martínez Albornoz, Juan Pablo; 0105755185This research examines the urgent need to reform the Ecuadorian legal framework on personal data protection, aiming to effectively integrate the use and control of artificial intelligence (AI) in information management and processing. Currently, AI is an essential tool for optimizing processes across multiple sectors; however, its application presents complex challenges related to privacy, security, transparency, accountability, and legal responsibility. The lack of specific regulations that address these issues can result in violations of data subjects' rights and the disproportionate or improper use of automated technologies without adequate oversight mechanisms. The study presents a critical analysis of Ecuadorian regulatory developments in data protection, contrasting them with international standards and regulatory models implemented in other jurisdictions. Furthermore, it incorporates guiding principles that, while not yet codified, are fundamental to building a robust legal framework. Based on this analysis, a legislative reform is proposed to ensure a balance between technological innovation and the protection of fundamental rights through the creation of legal instruments that enable monitoring, auditing, and the ethical and accountable use of AI.Ítem Acceso Abierto 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.”Ítem Acceso Abierto 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.Ítem Acceso Abierto 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.Ítem Acceso Abierto 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?Ítem Acceso Abierto 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.Ítem Acceso Abierto 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.Ítem Acceso Abierto 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.Ítem Acceso Abierto 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.Ítem Acceso Abierto 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.Ítem Acceso Abierto 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.
