La medida cautelar de apremio personal total para garantizar el ejercicio del derecho de alimentos de los niños y adolescentes en el ordenamiento jurídico ecuatoriano

Abstract

This research aimed to determine whether applying the precautionary measure of "total personal constraint" in Ecuadorian law guarantees the enforcement of child support in favor of the beneficiaries. The study revealed that this coercive measure is ineffective in ensuring children and adolescents' right to food.

The food provider's financial situation is worsened by the deprivation of liberty caused by this measure, preventing him from covering the established alimony. This situation leads to violating the rights of both the parent and the beneficiary child.

As a possible solution to this problem, it suggests a reform of Article 137 of the General Organic Code of Proceedings (COGEP by its Spanish acronym), which would repeal the "total personal constraint," leaving only the option of "partial personal constraint" in force. In this case, the authorities would have a more balanced and effective approach to enforcing child support obligations, guaranteeing the welfare of the children without overburdening the provider.

This research indicates that the punitive approach of deprivation of liberty for nonpayment of child support does not achieve its purpose and worsens the economic hardship obligated parents to face. Therefore, adopting a more targeted and moderate measure, such as partial personal constraint, could lead to greater compliance with child support obligations and, consequently, protection of the rights of both those who pay and those who receive support.