Browsing by Author "Méndez Álvarez, Álvaro Javier"

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El acceso a la información pública como medio de participación ciudadana y control social
(2016) Pintado Auquilla, Verónica Magaly; Méndez Álvarez, Álvaro Javier
The Organic Law of Transparency and Access to Public Information, is the legal body that recognizes and regulates the Right of Access to Public Information, as well that since the validity of the current Constitution of the Republic in 2008, the Right of Access to Public Information, is elevated to legal guarantee, further strengthening this important right. Internationally, the right of access to public information is considered as a fundamental human right, also it is one of the mechanisms that payable on the exercise of the rights of citizen participation and social control essential in a democratic state. The Organic Law of Transparency and Access to Public Information, provides two mechanisms to exercise the Right of Access to Public Information: firstly an administrative procedure; and secondly an judicial process. The current Constitution guarantees the right of citizens' access to information, conceived this as the power of every individual to know and access all information arising or that encentre held by the institutions , agencies, entities and legal persons public and private law with state participation or are concessionaires of this right. However, although the Organic Law of Transparency and Access to Public Information has been in force for more than 11 years, he has not fully achieved its objectives and does not fully guarantee the legally protected because there is still a culture of secrecy in the State.
Análisis de la publicidad engañosa y abusiva, como un derecho del consumidor dentro de la legislación ecuatoriana y legislación comparada
(2018) Ortega Pino, Eric Fabricio; Méndez Álvarez, Álvaro Javier
The commerce and trading of goods and services has become one of the keystones of modern civilization’s development. Through history, providers of goods and services have searched for mechanisms that facilitate the wide diffusion of their offerings, so the consumers would feel attracted to acquire them; consequently, the phenomenon of advertisement has emerged. Unfortunately, the interest of some providers to increase their patrimony at all costs has motivated the creation of illegal techniques to promote their products; so the figures of false and abusive advertisement are born. With this background, Consumer’s Law emerges as a legal subject tending to solve controversies that are originated from the consumer’s relationship, among them, false and abusive advertisement. The peak of the digital era that we live in has driven the use of the Internet for commercial activity. Web pages like OLX and MercadoLibre have signified a true revolution in terms of the way of buying and selling. However, with the advances of technology, new techniques have also emerged to advertise online in a false and abusive way; this is why it acquires a crucial importance el knowledge about the legal protection that consumers affected by these practices count on.
Análisis de la regulación de los derechos de autor en las redes sociales en el Ecuador
(Universidad de Cuenca, 2022-04-21) Collaguazo León, Raúl Salvador; Méndez Álvarez, Álvaro Javier
The purpose of this research is to analyze the possible problems of a normative order that technological advance may bring about, specifically regarding Derechos de Autor within the internet and social networks refers. This implies an integral examination of Derechos de Autor, review also the legal protection they have had throughout history, and what they currently have, both locally within the Ecuadorian territory, and internationally. In the same way proceed with the internet and social networks; analyze their genealogy, their operation and current regulation, in order to be able to make an analytical comparison between what is protected by social networks, by international regulations, and by Ecuadorian internal regulations, contrasting the scope and the protection that each one provides to Derechos de Autor, likewise also collate their similarities and inconsistencies, if they exist.
Análisis de la sentencia 2006-18EP/24 de la Corte Constitucional sobre las posibles afectaciones a las y los servidores públicos en el ámbito laboral y sus derechos constitucionales
(Universidad de Cuenca, 2025-01-06) Juca Loja, Erika Dayanna; Méndez Álvarez, Álvaro Javier
Ecuador, as a Constitutional State, must guarantee the enjoyment of rights and effective justice for all its citizens. In this framework, the Constitutional Court, through ruling 2006-18- EP/24 of March 13, 2024, established a precedent that limits judicial review of labor conflicts between the State and its public servants through protective actions. This exceptional rule allows judges to dismiss these actions when they are administrative acts related to specific labor disputes, prioritizing other resolution mechanisms provided for in the legal system. The general objective was to analyze, in a critical and legal manner, the role of the judicial entity in resolving challenges to administrative acts related to labor conflicts between the State and its public servants. It was concluded that the termination of the provisional appointment of a pregnant worker constitutes a violation of her fundamental rights, underlining the reinforced protection of maternity established in the Constitution. The ruling ordered comprehensive reparation that includes economic compensation, public apologies and measures of non- repetition, with the aim of guaranteeing justice and preventing future violations. This ruling will limit the use of protection action in labor disputes related to occasional contracts and provisional appointments, directing these cases to the contentious-administrative jurisdiction
Análisis del silencio administrativo según el Código Orgánico Administrativo
(Universidad de Cuenca, 2022-09-12) Guevara Morocho, Claudia Fernanda; Méndez Álvarez, Álvaro Javier
The objective of this paper is to carry out on analysis of the legal effects that arise from the omission of the Public Administration in response to the requests of those administered according to the Administrative Organic Code, this transcendental figure because it has generated effects that as a rule in our legislation will be positive and as a negative exception. The study begins with the right of petition as a basis for administrative silence, since the Constitution of Ecuador 2008 requires a reasoned response to the claims or requests of those administered; in addition, its requirements and its origin shall be identified so that the alleged administrative act arising from the administrative silence is valid and legitimate. Finally, recognize the specific cases of both positive and negative administrative silence
Análisis jurídico del procedimiento administrativo sancionador regulado en el Código Orgánico Administrativo
(Universidad de Cuenca, 2021-10-05) Luzuriaga Palacios, Marcos Josué; Méndez Álvarez, Álvaro Javier
As a result of the implementation of the Administrative Organic Code in Ecuador, a series of changes in the administrative procedural law were unleashed. One of them was the integration of the Administrative Sanctioning Procedure, as an instrument for the exercise of the sanctioning power within the framework of the external legal relationship of the Public Administration. However, unlike most of the topics brought by the referred norm, the mentioned procedure has not been the object of a complete and deep study, but rather, it has been somewhat ignored and even thrown to the background. For this reason, the current work has focused on building a specialized and more complete analysis of the Administrative Sanctioning Procedure, as well as of certain deficiencies and problems of its regulation in the Organic Administrative Code. For this purpose, a methodology with three approaches has been used: qualitative, in the collection of information from various legal sources; deductive, for the description and interpretation of the information collected, and for the creation of a conceptual and doctrinal basis of the Administrative Penalty Procedure and its main legal institutions; and finally, an analytical approach, used in the specialized examination of each of the aspects of the Administrative Penalty Procedure, and likewise, in the identification, analysis, and suggestion of potential solutions, of the deficiencies and problems of the current regulation. All this with the aim of contributing to improve the regulation of the administrative sanctioning power and the instrument for its exercise, the Administrative Sanctioning Procedure
Análisis y aplicación de la acción de lesividad dentro de la Administración Pública
(Universidad de Cuenca, 2023-04-25) Guillén Montenegro, Andrea Patricia; Méndez Álvarez, Álvaro Javier
The administrative compliance and enforcement powers is the mechanism that the public administration can use in its favor during an adequate time, since, after having generated a valid administrative act, but flawed, it will be able to rectify this unfavorable act without having to go to other instances. That said, it should be noted that the administration as guardian of the public interest must be supported by the legal system. And, it has the obligation to restore that violated legality or restore the legal system if it is violated. Public administration in protection of this public interest, which is a combination of principles and daily actions that favor the community over personal interest. However, when the administration realizes that it generated an annulment act with enforceable effects, and it is not possible to revoke it exclusively in administrative proceedings, they will go to court applying the detrimental actions to obtain judicial nullity that cannot be annulled, I insist, in administrative proceedings. In order for the detrimental actions to be carried out correctly, the administration will allege its own clumsiness by declaring the administrative act harmful by the highest authority, prior to an administrative procedure that must be respected, since, according to this procedure, an administrative file will be obtained, which will be analyzed by the judge directly in its legality.
Condiciones sociales y legales de las mujeres venezolanas en situación de movilidad humana asistidas en el Centro Pastoral Social Cáritas-Cuenca en Ecuador, año 2023
(Universidad de Cuenca, 2024-02-28) Cando Guachún, Morelia Nataly; Méndez Álvarez, Álvaro Javier
The irregular mobility of people is a problem that is present throughout the world. The conditions in which these transit processes take place these populations, mainly composed of women, in a situation of structural disadvantage in these contexts. For this reason, the objective of this project is to determine the social and legal conditions of Venezuelan women in a situation of irregular human mobility, assisted at the Pastoral Social Caritas-Cuenca, in Ecuador, in 2023. The type of research conducted was qualitative with a non-experimental-transversal study scope; the Atlas Ti software was used to process the information, through the application of in-depth interviews. For the selection of the study population, we worked with two groups of participants; in the first group, 10 Venezuelan women in a situation of irregular human mobility, through a non-probabilistic sampling by convenience, and for the second group we worked with 4 experts involved in human mobility issues with the Venezuelan population. Results obtained show that the main challenges faced by Venezuelan women in a situation of irregular human mobility in terms of social integration in the city of Cuenca are related to: lack of legal documentation, economic situation, discrimination and lack of access to public services.
El cumplimiento del derecho al debido proceso en el procedimiento administrativo de terminación unilateral y anticipada del contrato público, por causas imputables al contratista con la consecuencia de la declaratoria de contratista incumplido
(2016) Zambrano Jaramillo, María Gabriela; Méndez Álvarez, Álvaro Javier
The SistemaNacional de ContrataciónPública (SERCOP)has as purpose to determinethe principles andrules governingprocurement proceduresfor the acquisitionor lease of goods, works and services, including consulting, which generallyperformpublic administration. Any of theprocurement proceduresare met bythe full andproper executionof the object of the contract;the problem occurs whenthe contractorincurs in acause of termination established by law. In this monograph, we will analyze the causesfor terminatingthe contractunilaterallyand early, and among those, specificallythe causes for terminating the contract unilaterally andearly based on contractor faults. The procedureand due processto be followedtoachieve such resolutionand the means to refute the resolution thatcan be used by the contractorto annultheunilateralearly terminationof the contract. The legal consequences, why the contractor isdeclared “failedcontractor”also will bea pointof analysis.
El derecho penal del enemigo en el Código Orgánico Integral Penal ecuatoriano. El ciudadano y no ciudadano. Mención terrorismo
(2016) Palacios Moreno, Diego Mauricio; Méndez Álvarez, Álvaro Javier
Theory Enemy's Criminal Law postulates the existence of a criminal law that distinguishes between people whose behaviors is accord to law and people that demonstrate a position contrary to the legal order and aim to destabilize the state system people. This research is aimed to analyze the Ecuadorian Criminal Law and its connection with this doctrine through the crime of terrorism. First we will make an analysis of the doctrine, its principles and purposes. Following this, we will describe the Constitutionalism Guarantor and Dignitary and the contradiction with the principles of the German jurist, Gunther Jakobs, head of the theory “Enemy’s Criminal Law ". Finally we will analyze the crime Terrorism related to the “Criminal Law Act”, within the study and criticism of the case called "The 10 Luluncoto” linked to Human Rights.
El derecho a la defensa en el procedimiento de ejecución coactiva: un análisis crítico del juicio de excepciones a la coactiva
(Universidad de Cuenca, 2025-03-07) Ramón Coello, Lisseth Alexandra; Méndez Álvarez, Álvaro Javier
The Trial of Exceptions to the Coercive Procedure is a procedural tool of opposition provided by law so that the administered can challenge coercive actions of the state such as the coercive execution of the administration and its regulation is provided for in the Organic Administrative Code of Ecuador. Despite the approach that the Ecuadorian legal system has given to it, within the new public administration it faces challenges that call into question the effectiveness of the challenge mechanism and the capacity of the justice system to resolve these problems in an agile and fair manner. The research retrospectively addresses the issue of coercive enforcement when it is challenged before the Administrative Court in direct relation to the principle of Effective Judicial Protection and the fundamental rights of the administrated, taking into consideration the Trial of exceptions as a mechanism provided that strengthens the exercise of the right to defense of the coactivated debtors.
La importancia de la acción de lesividad como mecanismo de autotutela de la administración pública
(2017) Guillén Montenegro, Andrea Patricia; Méndez Álvarez, Álvaro Javier
The present research work has as objective to treat the effects of lesivity action inside the administrative and judicial headquarters, as well as the procedure that must be carry out for its declaratory within the Ecuadorian legislation. It is necessary to introduce, identify and analyze the administrative act through its historical record, its evolution, juridical nature, the administrative and juridical effects, as it is established inside our juridical order. This paper work addresses history, evolution and juridical nature for the lesivity action. Likewise, some specialist writers on the subject are cited. A tour of the pertinent normative bodies such as the Constitution of the Republic, COGEP, ERJAFE, amongst others are done, in order observe the produced effects in the administrative and judicial headquarters. At the same time emanated jurisprudence it is mentioned by the Administrative Litigation Room of the Supreme Court of Justice, judgement of July 25, 2002. Due to the lack of a specific process about the lesivity action in a clear and orderly way inside our juridical order, it is necessary by means of this research work, to insert new information so the procedure becomes easier to any particular
La importancia de la fundamentación del recurso extraordinario de casación
(2016) Torres Quitilanda, Luis Vicente; Méndez Álvarez, Álvaro Javier
The extraordinary appeal of cassation allows the action to declare void a judgment or an order, to maintain the correct application of the law. The appeal like any other resource allows the analysis of the decision by the judges of second instance of one of the specialized chambers of the provincial courts. The extraordinary appeal is a purely formal, extraordinary and supreme resource because it allows us to attack a judgment for errors of law inherent in the process, provided us to rely on the grounds determinedby law. The current role of the appeal is multifaceted and must constantly adapt to new demands, people-oriented to the proper administration of justice, that the sentence is just and definitive within a legal system; arguably appeal is a kind of filter with which it is observed and the rules of law which have been misapplied, misinterpreted by lower courts are obeyed. In this research a historical analysis of the appeal, its legal nature, the formal requirements, transcendence in comparative law and a review of the vices that can affect it; is all done in emphasis to prove why the foundation of this resource formal character. Also this monograph reflects the correct application of law in order to avoid by competent officials, the wrong administration of justice, thereby violating rights enshrined in international treaties, the constitution and the law.
La importancia del análisis jurídico del hecho administrativo, como forma de manifestación de la voluntad pública
(2016) Villavicencio Cordero, Wilson Oswaldo; Méndez Álvarez, Álvaro Javier
Public Administration expresses its willingness in different ways known as Administrative Act, Simple Acts of Administration, Administrative Done, Contract Administrative, Normative Act; all these forms of expression of will are part of the branch of administrative law which have been studied by various doctrinaire, in this case the study of this monograph its focuses on the Administrative Fact that is just all material activity translated into technical or physical actions that are executed by who represents the Public Administration. In the first part of this project the goal is to collect various forms of expression of will of the Public Administration, to study and analyze them according to doctrine, and within our legal system. So, once identified each of these figures, proceed to examine the Administrative Done. Having studied and identified the Administrative Done in our legal system we analyze its importance in the practical field of administrative law, for which we refer to a case in administrative proceedings, as the death of the daughter of former Minister Guadalupe Larriva and a case in the judicial process, in which Mr. Ivan Vasquez sues the Sports Federation of Azuay, the challenge of an Administrative Done.
La acción de repetición como consecuencia de la reparación estatal de violaciones constitucionales y legales producidas por el servicio público
(Universidad de Cuenca, 2022-09-21) Arias García, Olga Maricela; Méndez Álvarez, Álvaro Javier
According to the object of study of the present work, it is analyzed that the problem in the application of the existing regulations to demand the action of repetition in favor of the state, is the application of existing rules in the supplementary regulations for each procedure distributed in the different applicable legal bodies. Thus, this solution has been considered possible to the justification of lack of clarity in the regulation of the action of repetition, so that the state leaves the role of responsible and assumes the role of creditor against the public servants, for whom it initially assumed an obligation to pay.
La disponibilidad y acceso a medicamentos tanto a nivel individual como colectivo: Acercamientos y discrepancias en la obligación del Estado para la garantía del disfrute más alto a la salud a través del acceso a medicamentos de calidad, seguros y eficaces
(Universidad de Cuenca, 2023-09-07) Quiroz Cedeño, César Alfredo; Méndez Álvarez, Álvaro Javier
This research project focuses on the access to quality, safe, and effective medicines, both at an individual and collective level, and examines the approaches and discrepancies that exist between the highest attainable standard of health and the reality of accessing medicines. The study addresses the problem of the Ecuadorian State's failure to fulfill its constitutional mandate of providing universal and free healthcare services, including medicines, which hinders thousands of individuals with catastrophic illnesses from accessing necessary medications due to their high cost. The research aims to examine the administrative system and the access to effective judicial remedies to ensure the availability and access to quality, safe, and effective medicines, as well as develop indicators for individuals with catastrophic illnesses to access their medications. It seeks to contrast constitutional precedents with the current reality, highlight shortcomings in the existing administrative system, and raise awareness about the implications of accessing medicines through judicial means.
La liquidación de los contratos públicos
(Universidad de Cuenca, 2023-09-06) Donoso Moscoso, Francisco José; Méndez Álvarez, Álvaro Javier
The present research work intends to approach the liquidation of public contracts, its notion, understanding, requirements, and detailed analysis from the perspective of Ecuadorian regulations and its National Public Procurement System, as well as to address, from the viewpoint of comparative legislation (Colombia), the determination of the moment in which it should be practiced as a form of proper termination of contractual relations between the contracting entity and the contractor. Another aspect of the study will be the determination of the difficulties that the public administration, acting as a contracting entity, faces when liquidating the different types of contracts under its responsibility, regarding the execution of works, acquisition of goods and provision of services, including consulting services, providing several answers as a solution to the mishaps detected. It is also pointed out that the style of approach of the analysis is of an exploratory argumentative type, including a quali-quantitative method since, by describing the meaning of the expression liquidation and correlating it with the content of the regulations on public procurement, its correct scope will be determined, in addition to this, with the use of information obtained from the institutional portal of Government Procurement, the problems involved in the liquidation of public contracts will be established and determined. Finally, it will be proposed to provide an answer to the question of this research work: Which are the aspects that present problems in the practice of liquidation of public contracts, as well as the ways to solve them?
La responsabilidad extracontractual del Estado en la administración de justicia: Análisis de las causas establecidas en el Artículo 11.9 de la Constitución de la República del Ecuador de 2008
(Universidad de Cuenca, 2024-02-28) Guaraca Lituma, Doménica Belén; Méndez Álvarez, Álvaro Javier
This research project analyzes the figure of the non-contractual liability of the state starting from a deepening of the term responsibility, the different types of responsibility and the historical evolution at the global and local level, identifying the Ecuadorian constitutions in which the responsibility of the state is formalized and in which there were changes. Thus, the study of this figure focuses on the analysis of the five causes for which the state is responsible in the judicial sphere for actions or omissions that cause damage to the administered, which are established in Article 11, paragraph 9 of the Constitution of the Republic of Ecuador of 2008. These grounds are arbitrary detention, miscarriage of justice, unjustified delay, violation of the right to effective judicial protection, and violations of the principles and rules of due process. This research concludes with the jurisprudential analysis of judgments issued by the Constitutional Court of Ecuador in which conflicts are resolved on the grounds of non-contractual liability of the state.
La responsabilidad extracontractual del Instituto Ecuatoriano de Seguridad Social (IESS), ante la carencia de medicamento en enfermedades catastróficas Cáncer
(Universidad de Cuenca, 2022-01-12) Aviles Caamaño, Victor Raul; Méndez Álvarez, Álvaro Javier
The present research has as objective identify the elements of the extra contractual responsibility of the Ecuadorian Institute of social security (which from now on will be referred as simply as IESS), given the lack of medicines for people with cancer as well as what’s their responsibility and fair integral reparation to the victims in front of the deficiency of this public service. A qualitative method was implemented to analyze if the IESS has complied with their obligation of deliver all the medications to people whose suffer from cancer, which leads me to identify the situation in which the health service finds provided by the IESS, in addition, a doctrinal approach will be included that allows us to have a greater notion about the extra contractual responsibility of the IESS and the fair comprehensive reparation, identifying this content through a logical examination and systematic of the information obtained in the regulations, doctrine and jurisprudence. As a result, was determined the responsibility extra contractual responsibility of the IESS due the constant lack of medicines for catastrophic diseases, since the concurrence of the three essential elements for responsibility was identified (the lack or the deficiency of a public service or any other provision to which the individual has the right, qualified damage and the existence of a causal link between the qualified damage and omission or action of the public administration or the harmful fact that violates the right), It was also established what the reparation would be, suggesting that there should be a only regulatory body that regulates the extra contractual responsibility of the state where it better regulates the elements and their correct repair.
La vulneración al derecho constitucional a la estabilidad laboral por la compra de renuncias obligatorias en el decreto ejecutivo Nro. 813 en el Ecuador.
(Universidad de Cuenca, 2025-03-19) Espinoza Jarrín, Joe André; Méndez Álvarez, Álvaro Javier
This degree work focuses on the purchase of mandatory waivers that in the last decade marked a transcendental event in Administrative Law. Before, public officials enjoyed absolute stability until the government of former President Rafael Correa issued executive decree No. 813 and reformed the LOSEP Regulations, incorporating the obligation to purchase resignations, moving to relative stability in the sector. public. Reason why the judicial path that the plaintiffs have when seeking the unconstitutionality of the annexed norm seems to me to be a relevant issue. This issue represents several challenges at a practical level, since it represents a regression of rights because the administrative summary process is replaced by the will of the person who decides who should be removed from their functions. The research seeks to contribute to society, in terms of understanding the abuse and harassment that public servants experienced in the last decade, highlighting Art. 33 of the Constitution, which is the social duty and economic right of human beings so that they have a dignified life. Thus, Ecuadorian families can stay informed and intervene in time when a president of the Republic attempts to illegally and immorally reform a law or regulation, trying to undermine the previously acquired rights of public sector employees and workers.