Facultad de Jurisprudencia y Ciencias Políticas y Sociales Tesis Maestrías

Permanent URI for this collectionhttps://dspace-test.ucuenca.edu.ec/handle/123456789/201

Browse

Now showing 1 - 20 of 262

Salud y seguridad ocupacional: El efecto de la sobrecarga laboral y la relación con los derechos laborales del personal del Centro de Salud Tipo C, Materno Infantil IESS, Cuenca, año 2024
(Universidad de Cuenca. Facultad de Jurisprudencia y Ciencias Políticas y Sociales, 2025-11-21) Lojano Mejía, Manuel Aurelio; Álvarez Coronel, Lourdes Eulalia
This study analyzes the relationship between work overload and its impact on the work and family environments of workers at the Type C Maternal and Child Health Center (IESS) in Cuenca. This study aims to propose preventive and intervention measures to improve their quality of life. To this end, three specific objectives are addressed: to scientifically review the effects of work overload, evaluate its impact on staff quality of life, and design a proposal for labor policies aimed at protecting mental health. The methodology employed is a quantitative, non-experimental, and cross-sectional approach that allowed for data collection at a specific time point without manipulation of variables, ensuring an objective view of the phenomenon. The study adopted a relational approach that allows for exploring interactions between variables in the work and family environments. The main results show a correlation between work overload and a deterioration in quality of life, manifested in high levels of stress, affecting family relationships, and a decrease in general well-being. In conclusion, the research confirms that work overload negatively impacts various aspects of workers' lives, highlighting the urgent need to implement workplace policies that prioritize work-life balance and promote healthy and sustainable work environments.
Las limitaciones a la libertad de testar en el sistema jurídico ecuatoriano: Un análisis de las legítimas y otras restricciones legales
(Universidad de Cuenca. Facultad de Jurisprudencia y Ciencias Políticas y Sociales, 2025-10-01) Sigüenza Bonete, Aida Melania; Zamora Vázquez, Ana Fabiola
This research examined the limitations on testamentary freedom within the Ecuadorian legal system, with the aim of analyzing their impact on the testator’s autonomy in light of the current regulatory framework, constitutional principles, and comparative law. The study began with the recognition, although the Constitution of Ecuador guarantees fundamental rights such as the free development of personality (Article 66, paragraph 5) and the right to property (Article 321), in practice these rights are curtailed by the system of compulsory allocations established in the Civil Code. It was found that the Ecuadorian succession regime obliges the testator to reserve portions of their estate for forced heirs—such as the legitime (reserved portion), the spousal share, and the fourth for improvements thus limiting their freedom of disposition. This model has proven to be more rigid in comparison to countries like Colombia or Spain, where the freely disposable portion of the estate is greater. Methodologically, the research was structured under a qualitative, descriptive, and comparative approach, employing techniques such as normative analysis, literature review, and doctrinal comparison across various legal systems. The analysis revealed that the Ecuadorian model, by imposing automatic restrictions regardless of emotional bonds or the actual will of the deceased, perpetuates outdated succession structures poorly adapted to the diversity of contemporary family configurations. It was concluded that a critical review of the current system was pertinent, suggesting legal reforms to increase the percentage of freely disposable assets, incorporate socio-affective criteria, and consider alternatives within succession law.
Derecho al silencio en materias no penales en el Ecuador: una polémica posición
(Universidad de Cuenca, 2025-09-19) Sacasari Haro, Anabel Carolina; Calderón Marenco, Eduardo Andrés
This research examined the right to silence in non-criminal proceedings in Ecuador from a constitutional and civil procedural perspective. Traditionally linked to criminal law, the right to silence was analyzed in civil, labor, and administrative contexts where its application has been ambiguous or nonexistent. The study began by recognizing the constitutional status of this right and revealed that its normative development outside criminal proceedings is limited, resulting in legal gaps and inconsistencies in judicial application. The problem was framed around the lack of specific regulation in the Código Orgánico General de Procesos (COGEP), which has hindered its effective invocation in civil hearings and led to legal uncertainty and subjective evidentiary assessments by judges. The research was conducted using a qualitative approach, employing dogmatic-legal, inductive, comparative, and critical methods. Content analysis was applied to legal doctrine, national and international regulations, case law, and real cases from the city of Cuenca. The study concluded that the right to silence must be explicitly recognized and regulated in the COGEP to ensure its enforceability in non-criminal proceedings. A legal reform and training for judicial actors were recommended to align judicial practices with international human rights standards.
Voluntad anticipada en Ecuador. Regulación jurídica desde un enfoque de la autonomía y la capacidad
(Universidad de Cuenca, 2025-07-22) Loja Sarmiento, Juliana Isabel; Idrovo Torres, Diego Francisco
This research paper presents a legal analysis of advances directives in Ecuador, understood as the procedure through which an individual, while fully competent, expresses in advances their preferences regarding medical treatments they wish to accept or refuse in the event of losing decision – making capacity. Based on a theoretical framework that incorporates the principles of autonomy, legal capacity, and human dignity, the study explores the feasibility of recognizing this mechanism within Ecuadorian law, despite the absence specific regulation. The analysis includes a comparative examination of the legal frameworks of Spain and Colombia, whose advancements in legislation and jurisprudence offer valuable models for developing coherent regulation at the national level. The study concludes that compliance with previously expressed directives constitutes a tangible expression of informed consent, the right to the free development of personality, and the right to die with dignity, all of which are constitutional principles currently recognized in Ecuador. Finally, the research proposes normative and technical guidelines for integrating this figure into the Ecuadorian legal system, ensuring legal certainty, the protection of fundamental rights, and consistency with Civil Law.
Momento procesal oportuno para la intervención de terceristas en la etapa de ejecución, seguridad jurídica y derecho a la defensa
(Universidad de Cuenca, 2025-07-24) Avila Campoverde, Olga Patricia; Idrovo Torres, Diego Francisco
The thesis analyzes the ambiguity present in the last two paragraphs of Article 48 of the Código Orgánico General de Procesos (COGEP), which regulates the appropriate procedural moment for filing third-party interventions during the enforcement stage. The lack of precision in this provision has led to divergent judicial interpretations, affecting legal certainty and the constitutional right to defense for both parties and third parties. The objective is to propose a reform that clearly defines the deadlines and conditions for admitting third-party claims, distinguishing between exclusionary claims, aimed at protecting property rights, and supporting claims, which seek to participate in the distribution of auction proceeds. A qualitative methodology is employed, with a descriptive and critical approach, based on doctrinal, legal, jurisprudential, comparative analysis and the study of a specific case. The research demonstrates how an exclusionary third-party claim was admitted by one judge and later annulled by another, highlighting the negative effects of legal ambiguity: contradictory rulings, procedural delays, and violations of rights. Furthermore, through a comparative analysis of the legal systems of Peru and Paraguay, it is shown that these jurisdictions clearly define the timeframes for each type of third party claim, thereby reducing judicial discretion and reinforcing the need for legal differentiation. The study concludes with a proposed reform to Article 48 of the COGEP, allowing, in exceptional cases, the admission of exclusionary third-party claims up until the adjudication order becomes final, thereby ensuring greater consistency, legal certainty, and respect for the right to defense.
La desconcentración administrativa: movilidad humana en la zonal 6 del 2007 al 2021
(Universidad de Cuenca, 2025-04-30) Alvarez Rivera, Tania; Ochoa Rodríguez, Guillermo Alejandro
This thesis project describes the process of administrative decentralization of the zonal office 6 of the governing body of human mobility, within the framework of the organizational transformation of the executive branch in Ecuador. The study focuses on analyzing how decentralization contributes to ensuring the fundamental right to good public administration and the fulfillment of its social purpose. This project explores some doctrinal positions put forth by scholars in the field of administrative law, reviews the regulations governing the matter in the country, and examines related international instruments. Additionally, it analyzes the services provided at the territorial level by zonal office 6. Administrative decentralization, as an organizational mechanism that transfers competencies from the central level to lower levels with hierarchical supervision, is valued for its ability to bring administration closer to the territory, improve institutional efficiency, and allow greater involvement of local leaders in public management. In this context, this analysis covers years 2007 to 2021, from the creation of the institution to the issuance of the latest applicable organizational management statute. This work identifies the strengths and weaknesses of the administrative decentralization process. It proposes elements to strengthen the realization of the right to good public administration and the fulfillment of its social purpose in human mobility.
El ejercicio de la potestad de regulación y control del estado en materia de turismo
(Universidad de Cuenca, 2025-02-24) Jaramillo Macancela, Sonia Patricia; Morales Andrade, Marco Antonio
The exercise of the State's regulatory and control powers in the area of tourism is a topic of great relevance for the Municipal Decentralized Autonomous Government of Cuenca. This research will examine the regulatory and control powers exercised by the State in the area of tourism and its implications for the local government of Cuenca and focuses on the distribution of powers among the different levels of government. The thesis analyzes the current legal framework and public policies related to tourism at both the national and local levels, delving into the responsibilities and functions of the GAD of Cuenca in the promotion, regulation and control of tourism activities within its jurisdiction. The study evaluates the coordination and collaboration mechanisms between the different levels of government in the context of tourism, identifying challenges and opportunities to improve the effectiveness and efficiency of tourism management in Cuenca, providing an understanding of the exercise of the State's regulatory and control powers in the area of tourism. The findings contribute to the identification of actions and strategies to strengthen local tourism management, promoting sustainable and equitable development for the community.
La constitucionalización del principio de primacía de la realidad frente al fraude laboral dentro del Ecuador
(Universidad de Cuenca, 2024-04-24) Pacheco Jiménez, Bruno Santiago; Verdugo Silva, Julio Teodoro
This study focuses on the constitutionalization of the principle of primacy of reality regarding occupational fraud in Ecuador. This undertaking comprises doctrinal legal research, regulatory bodies, and national and international jurisprudence intended to explain how to guarantee an effective application of the principle of primacy of reality in cases in which the worker status is concealed and thus, the obligations of the employer, evaded. Throughout the study, the principle, object of the investigation, is analyzed and understood as a principle of labor law, and then its development within national and international regulations is explained. The importance of this principle is highlighted as an instrument to guarantee justice and equity in labor relations. There is also an approach to occupational fraud through civil contract and its legal consequences in Ecuador, and how that principle should be invoked at the moment of its constitutionalization together with its effects. In summary, this study conveys a comprehensive vision of the constitutionalization of the principle of primacy of reality, showing its impact on the protection and recognition of labor rights. Therefore, the way to solve conflicts regarding occupational fraud in Peru and Colombia was studied in order to make a contribution to understand how the aforementioned principle, considered a constitutional norm, should be applied.
Protección de los teletrabajadores frente a riesgos laborales en el Ecuador
(Universidad de Cuenca, 2024-04-01) Pacheco Prado, Priscila Maribel; Guerrero Salgado, Efrén Ernesto
Teleworking is a work modality through which a person can carry out their activities without being present in the office facilities with the use of information and communication technologies. In Ecuador, the regulation of this labor modality began in 2016 and subsequently some reforms have been made. Given its recent regulation and considering the particularities of teleworking, it was analyzed whether the current regulations are effective for the protection of teleworkers against occupational risks starting from the theoretical description of teleworking and occupational risks in this modality, the determination of the current norm that regulates teleworking in Ecuador and the analysis of regulatory effectiveness from the perspective of teleworkers, labor inspectors, officials of the Ecuadorian Institute of Social Security and justice operators.
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?
Procedimiento administrativo sancionador regulado en el Código Orgánico Administrativo (COA)
(Universidad de Cuenca, 2023-07-28) Piedra Sarmiento, Pietro Geovanny; Méndez Álvarez, Álvaro Javier
The administrative sanctioning power allows the State the power to impose sanctions on citizens who carry out actions contrary to what established in the law or officials who incur in faults when exercising public office. In the case of Ecuador, this power is subject to laws that limit the punitive power of the administration, the same that as of 2018 reformed into a single regulatory body called the Organic Administrative Code (COA), which has associated legal bodies. such as the Executive Function Administrative Legal Regime Statute (ERJAFE) and the Organic Code of Territorial Organization Autonomy and Decentralization (COOTAD), where no studies are identified to determine the effectiveness, before this arises the present investigation that aims to carry out a critical analysis and comparison to show whether the reforms guarantee an efficient sanctioning administrative process. The results show that there are great advances that show clarity and order in the sanctioning process, but that it presents deficiencies related to arbitrariness and contradictions to the constitution
Efecto de las causales de suspensión de actos administrativos en el proceso administrativo
(Universidad de Cuenca, 2023-06-29) Molina Salgado, Xavier Antonio; Vázquez Ochoa, Paúl Andrés
The conduct of public institutions is expressed in Administrative Acts (AA), and in fact, their legal nature is inherent to administrative law, which is protected by respect for the rights of those governed. In this regard, this investigation seeks to determine the effects of the suspension of administrative acts established in the current Ecuadorian regulations. To this end, a qualitative methodology is employed, involving doctrinal-juridical analysis of the phases to be fulfilled in such acts. Indeed, theories related to the invalidity of AAs are addressed, as well as the analysis of the procedure and the suspension process established in the Administrative Organic Code and the General Organic Code of Processes. Among the main findings, the application of the organic-functional theory for compliance with regulations in the public sector is identified, and likewise, the legislation contemplates the corresponding regulation regarding suspension. As for the effects, the appearance of good law, the danger in delay, irreparable damages, and nullity by operation of law were identified as part of the suspension process of the administrative act, which, in certain cases, may infringe on the rights of the individual due to the supremacy granted to the execution of the AA
La acción de ejecución del silencio administrativo positivo su eficacia para hacer efectiva la petición
(Universidad de Cuenca, 2023-05-08) Zambrano Sánchez, Edison Bolívar; Jiménez Larriva, Paúl Esteban
The present investigation alludes to the lack of response from the public administration; while the administrative act is the manifestation of the will of the administrative bodies, sometimes the public administration due to circumstances such as negligence or carelessness does not issue responses to the requests required by the administered. In other words, there is silence in the face of the requests and claims presented by the companies. This institution is known as administrative silence. In the Administrative Organic Code this institution is regulated as an enforcement action, it will be analyzed if it is viable or lacks effectiveness. The institution of administrative silence will be analyzed in its two areas: positive and negative, as well as its limits. The procedure to follow for the execution of the administrative silence in the Contentious Administrative Tribunal, the enabling documents or suitable means of proof to demonstrate the lack of response to achieve recognition of the claimed right. Positive administrative silence gives rise to or creates the presumed administrative act or presumed fictitious act, however, for its existence it requires that certain requirements be met in the formal or procedural order and of material order or validity. The mere lack of response from the public administration within the term established by law in response to petitions, claims and requests from the administered is not enough. Therefore, the action of positive administrative silence is effective as long as these requirements and conditions are met.
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.
Vulneración de derechos laborales de personas que utilizan las aplicaciones digitales de entregas a domicilio como fuente de trabajo
(Universidad de Cuenca, 2023-03-24) Argudo Arce, Marcelo Melquisedec; Carbonell Yanez, María Helena
The accelerated development of technology has given rise to new types of companies, which have changed the traditional way of working. The use of digital platforms has facilitated the interaction between consumers and companies that provide certain services, however the rise of these companies in Ecuador has also shown a violation of basic human and labor rights of people who use digital delivery apps as a source of permanent work. Companies such as Uber Eats and Pedidos Ya have already indicated that their delivery men are not workers but service providers that have been linked to the companies through a civil contract for which reason they consider that they do not have labor obligations with them. The Ecuadorian State has not ruled on the matter to clarify the employment situation in which this group of people find themselves. This research work aims to determine the existence or not of labor dependency relationship between the people who use the digital delivery apps as a source of permanent work and the companies Uber Etas and Pedidos Ya with the purpose of establish whether this group of people should be considered workers under a dependency relationship or not and thereby recognize all the labor rights that the Ecuadorian legal system grants.
La desconexión digital y su incidencia en el derecho al descanso en la modalidad de teletrabajo en Ecuador.
(Universidad de Cuenca, 2023-03-14) Lligui Ortega, Milton Eduardo; Ochoa Rodríguez, Guillermo Alejandro
Telework has been one of the modalities of work of greater massification in recent years, especially since the declaration of health emergency due to the pandemic of the virus COVID-19. In Ecuador, teleworking has been subject to legal regulation since 2016, being guaranteed through rules of legal rank as the Organic Law of Humanitarian Support of 2020 and sublegal as the Ministerial Agreements of the Ministry of Labor, the rights of teleworkers to access to fair working conditions in terms of their remuneration, length of the day and right to disconnection. However, as this is an emerging modality, this has meant that in the beginning the informality in this modality has led to risks for teleworkers, in terms of their adaptation to this practice, provision of equipment, extension of the working day and harmonization of work life with their family obligations, in addition to the risks to their physical and mental health. Hence, the right to digital disconnection turns out to be one of the main guarantees for the welfare of teleworkers, for the sake of their personal welfare, protection of their privacy and the proper fulfillment of their family obligations, in that sense, the review of the constitutional rules, studies on the subject and reports of the International Labor Organization will allow to understand how such legal figure operates and its applicability within the Ecuadorian labor context and against regional and international standards.
La implementación de políticas públicas que permitan el acceso de los trabajadores del sector informal a la seguridad social
(Universidad de Cuenca, 2023-02-14) Benalcázar Molina, Maritza Nathalia; Machado Clavijo, Marco Antonio
This research work analyzes employment in the informal sector in order to determine the public policies that can be implemented in our country to extend social protection to informal workers; For this, informal employment and the regulation of social security in Ecuador will be analyzed, as well as the main public policies aimed at expanding the coverage of social security adopted in Brazil, Costa Rica, Colombia and Uruguay.
La actuación del SERCOP y la discordancia entre normativa y funcionalidad de herramientas en contratación pública
(Unversidad de Cuenca, 2023-02-10) Castro Pacuruco, Laura Jackeline; Aguilar Andrade, Juan Pablo
This research aims to address in a first chapter the overreach of the National Public Procurement Service (SERCOP) in the exercise of the administrative powers conferred in its capacity as governing body of the National Public Procurement System (SNCP), due to the overflowing and incompatible issuance of administrative rules, misrepresentation in the attention to claims, diffuse and implausible control, for in a second chapter expose the discordance between the regulations and the functionality of the computer tools used around an electronic public procurement based on the use of ICT, both factors producing violation of the governing principles public procurement and inefficiency in the economic management of State resources. With the analysis of the performance of SERCOP in the exercise of its administrative powers and the discordances between regulations and functionality of tools in the SNCP, the consequences of the incorrect application of these powers will be identified, the discrepancies found between the regulations and tools will be exposed, as well as possible solutions. The methodology applied is the analytical, through the review of bibliography, current legal regulations framed in public procurement, since this source and laws analyze the relevance of the study to reach the objectives set, on the other hand, the comparative method will be used, through the functionality of the main tools and public procurement portal against the regulations of the matter. The result of the analysis demonstrates the need to place a brake on the overreach of the governing body of public procurement in the exercise of its powers, the importance of the use of “TIC” in public procurement but under parameters of reliability and concordance between the regulations and the systems used for efficient public procurement, and in the future we can see if necessary corrective measures are taken to avoid the aforementioned violations and restore legal certainty and legitimate expectations, which allow actions with criteria of certainty and predictability.
El silencio administrativo positivo en el Ecuador: el acto administrativo presunto como garantía de los derechos del administrado, a partir de las reformas introducidas al Código Orgánico General de Procesos (COGEP)
(Universidad de Cuenca, 2023-01-13) Torres Molina, Johanna Piedad; Torres Rodas, Marlon Tiberio
The present research work is focused on studying the positive administrative silence in Ecuador: the presumed administrative act as a guarantee of the rights of the administered, based on the reforms introduced to the General Organic Code of Processes on June 26, 2019, which recognize said act as a title of execution. To this end, the general objective has been outlined, to determine how the application of the aforementioned administrative act operates as a guarantee of the rights of the administered in the execution phase from the aforementioned modifications. In this sense, in the investigation a study of the doctrine of administrative silence and the normative procedure for the execution of this class of act is carried out from its concept, elements that compose it and its validity. Likewise, the procedure to execute the presumed administrative act is reviewed and a Comparative Law is carried out, in order to know how this figure is regulated in other countries of the region such as Colombia and Uruguay. In the same way, it is studied through the academy, the jurisprudence and through the application of a survey, to lawyers in free exercise of the profession, how the administrative silence is currently executed in the execution phase in the country. This study has been developed from a mixed research methodology and it is concluded that the reforms introduced by the COGEP, in practice do not operate positively and, consequently, do not guarantee the rights of the administered.
El estado de embriaguez como causa de visto bueno desde la óptica constitucionalista en Ecuador
(Universidad de Cuenca, 2023-01-11) Urgilés Verdugo, Verónica Cristina; González Calle, Fernando Teodoro
In this research work, I will analyze the problem that represents the protection of the rights of the employee who suffers disease, specifically with regard to the employee who suffers of alcoholism, from a constitutionalist perspective. Therefore, it is necessary to start from the national and international recognition of labor rights, having as a background that they respond to a historical struggle, with special reference to those that guarantee the stability of the employee who suffers disease, regardless of what type. It will seek to distinguish conceptually between alcoholism and drunkenness, to understand if the process to end the employment relationship, is legal, or the authority should pay special attention in such cases. Finally, I will refer to the Colombian case, because its Constitutional Court in 2013 already determined that people who suffer from substance dependence should be classified as sick. In 2016, it also through case C-636-2016, it declares the banning of employees to attend work intoxicated or under the influence of narcotics, exclusively when consumption directly affects work performance. I will make a comparison with the national regulation, seeking to reach a conclusion that allows determining if the existence of official pronouncements on the situation of the employee who suffers from alcoholism is necessary, and if the drunkenness as a cause to end the relationship labor is constitutional.

Browse

Recent Submissions