El saneamiento procesal de oficio y tratamiento de excepciones previas ante la inasistencia del demandado: en el sistema oral ecuatoriano

Abstract

The General Organic Code of Processes (COGEP, by its Spanish acronym), upon becoming effective, established an oral system in which the judge acts as the director of the proceedings and ensures constitutional and procedural principles. However, in judicial practice, complex situations occur, such as the defendant’s failure to appear at the hearing. Due to the absence of oral substantiation, judges often omit, ex officio, the procedural rectification of preliminary exceptions raised or asserted in the claim, mistakenly believing that these exceptions have lost their procedural opportunity. This study aims to analyze the scope and limits of the judge’s authority to perform ex officio procedural rectification. It uses a documentary, bibliographic, and descriptive approach, applying qualitative methods to analyze normative and doctrinal texts. The findings show that the judge has a legal duty to apply a “retrospective procedural rectification” ex officio to those exceptions that constitute defects affecting not only the parties but also public order or involve non-curable nullities (such as lack of jurisdiction, res judicata, etc.), by reviewing the materials in the case file. It is concluded that the limit of this authority lies in substantive exceptions of a negative nature, such as prescription (statute of limitations), which must be strictly substantiated by the defendant.