Análisis jurídico a la restricción normativa de la presentación conjunta de la acción extraordinaria de protección y las medidas cautelares

The profound process of constitutional reform undertaken in Ecuador and in Latin America, transformed the exercise of judicial activities, establishing in favor of citizens the determination and scope of several judicial and jurisdictional guarantees, through which the effective protection of indivi...

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Detalles Bibliográficos
Autores Principales: Carmona Romero, Andres Omar, Flores Ramirez, Bryan Antonio
Otros Autores: Campoverde Nivicela |, Anibal Dario
Formato: Tesis de Pregrado
Publicado: Machala : Universidad Técnica de Machala 2018
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Acceso en línea:http://repositorio.utmachala.edu.ec/handle/48000/12388
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Sumario:The profound process of constitutional reform undertaken in Ecuador and in Latin America, transformed the exercise of judicial activities, establishing in favor of citizens the determination and scope of several judicial and jurisdictional guarantees, through which the effective protection of individuals is sought. the rights of the people. This process of reform, in which the constitutional supremacy is highlighted, introduced in the judicial system, a Court specialized in the application and recognition of the rights established in the Constitution of the Republic of Ecuador that until before 2008 had as a maximum body a the National Court of Justice. In relation to the manifesto, in similar terms to those established for the cassation, as the maximum expression of ordinary justice, the extraordinary protection action has been implemented in the Ecuadorian legal system, as well as the creation and reform of other jurisdictional guarantees. The extraordinary protection action; it is a constitutional guarantee, contained in the Constitution of the Republic of Ecuador in its Article 94, whose purpose is the protection of constitutional rights in judgments, definitive orders, resolutions with force of sentence, when there are rights that have been violated by action or omission. Article 437 of the Constitution provides for two requirements to file an extraordinary protection action: 1.- That it is a matter of sentences, orders and final or enforceable resolutions; and, 2.- That the appellant demonstrates that the trial has violated, by action or omission, due process or other rights recognized in the Constitution. In this regard, Article 87 of the Constitution of the Republic establishes the possibility of ordering precautionary measures jointly or independently of the constitutional actions of protection of rights, so that, due to the nature of the precautionary measures, the violation may be avoided. of rights during the substantiation of jurisdictional guarantees; likewise, the Organic Law of Jurisdictional Guarantees and Constitutional Control, in its article 26, defining the purpose of the precautionary measures of a constitutional nature, indicates that the purpose of the same is to prevent or stop the threat or violation of the rights recognized in the Constitution. Constitution and international instruments on human rights, and that should be appropriate to the violation that is intended to be avoided or stopped. The main objective of the present investigation is to determine if there is a limitation or restriction of rights regarding the joint filing of the extraordinary protection action and the precautionary measure of a constitutional nature. In the first chapter, an analysis is made regarding the state of the art of the extraordinary protection action and th constitutional precautionary measure; and on its presentation jointly, determining the relevance of these two guarantees within the Ecuadorian legal system, through an analysis of jurisprudential and doctrinal progress on the regulatory limitation or restriction of rights established in the Organic Law of Jurisdictional Guarantees and Constitutional Control . In the second chapter, I carry out a study in order to determine whether or not the regulatory limitation established in the Organic Law of Jurisdictional Guarantees and Constitutional Control is proportional, or if it is a restriction of rights, checking whether they are regulatory filters or restrictive filters. those established in the aforementioned Law, through an analysis of the principles and rights. In the third chapter, I carry out an analysis of cases, in which the two guarantees have been treated jointly; Finally, by way of conclusions, I determine the consequences of the limitation and the impact within the Ecuadorian legal system.