Los derechos fundamentales versus los derechos patrimoniales según la Constitución ecuatoriana del 2008: un abordaje doctrinario y jurisprudencial

Abstract

This monograph aims to establish the traits that distinguish the differences between fundamental rights and property or legal rights, taking the protective action as a reference, because its activation strongly express the need to locate and determine with certainty the constitutionality or legality of a right that can be detached from a specific case. The treatment of this legal phenomenon is approached from a dual perspective. The first one focuses on the gradual analysis of legal and doctrinal tools that provide objective parameters, such as rules and principles, and exegetical methods to approach the specific study of the concept of fundamental right, from the perspective of the "universal and non-opposable”, inalienable, inviolable, imprescriptible, predisposed by rules, vertical, intransigible and very personal character of this right. The second one, brings together several pieces of jurisprudence and constitutional precedents to illustrate through concrete cases, which kind of cases can’t be a matter that should be resolved through protective action; such are the cases of nonconformity of amounts to pay; quantification of compensation, compliance with contractual provisions, contradictions between norms of legal status. Ultimately, this work starts from the theory of law, which is the basis for arriving to the examination of a case, because this ensures that the hypothesis of the problem is demonstrated and understood.