Revista Facultad de Jurisprudencia

Editorial:
Pontificia Universidad Católica del Ecuador
Fecha publicación:
2021-05-12
ISBN:
2588-0837

Últimos documentos

  • Change of labor occupation of the worker and its impact on the right to job stability

    The main objective of this article is to analyze the incidence that the change of employment occupation has on the full exercise of the right to stability guaranteed by the Constitution, the International Treaties and the Labour Code, carrying out this analysis by means of a bibliographic and descriptive research, where the historical background of the right to work was determined, as well as the elements that make up the employment relationship, what makes up an employment contract, the principles that support the rights of workers, employment stability and its types, determining the main causes or practices that violate this right, especially the change of occupation. In this study, the incidences that occur with this type of action taken by the employer against the worker are analysed in a critical and doctrinaire manner, taking the change of occupation as an untimely dismissal from work. To achieve the objectives, a quantitative and qualitative study was carried out, using surveys and interviews with labour lawyers and judges as data collection tools. The results show that 84% of those surveyed consider that the right to stability is violated by means of a change of occupation, contradicting the mandate established in the Magna Carta, which is why it is necessary to reform the Labour Code to protect the rights of workers that are currently being undermined by employers.

  • The importance of proportionality in penalties in the Ecuadorian Penal Code for violence against women and family members

    Violence against women or members of the family is an act that affects society in every corner of the world, because it destroys the family in many ways, such as morally, physically, psychologically, and even intellectually, as in the case of children or adolescents who are underachieving at school, since they have to endure different types of violence from the aggressor. Considering the importance of the family in society since it is on the family that the healthy and orderly growth of a society depends. This social problem has a lot to do with how, throughout history, there has been a misconception on the part of men that it is they who are superior and that it is women who must obey and be subdued, as it is they who impose authority on women in a violent manner that reaches the point of threatening their integrity and that of their whole family.

  • Global Law formation: Evolution of National Law towards an Universal Law

    The phenomenon of globalization has unprecedented characteristics in the political, economic and social history of humanity. It does not start from a previous acceptance of the states to get involved in it, but it advances nevertheless an eventual opposition resistance of the new subjects of International Law who want to impose a different direction for globalization. The fundamental objective of this article of analysis is to propose a specific formation of Global Law from three probable sources, according to the projections of contemporary international relations and the political balances that can be foreseen, either by the greater influence of powers and its allies, due to the pressure of successful integration processes, or the presentation of new legal universal systems. The fundamental point is in the need for all political actors to find an adequate response in the formation of Global Law that suits their political interests or that offers the best possible scenario for asserting them. This, because it is evident that some political entities could contribute more to determine a "common direction" while others would be forced to seek a better possible position.

  • The new perspective of the declaration of Environmental Damage in Ecuador: Application of the Proportionality Test as a mechanism for conflict resolution

    This article aims to develop a methodological proposal for the application of the proportionality test as a conflict resolution mechanism in the new environmental damage declaration procedure in Ecuador, based on the systematization of theoretical conceptions and legal and administrative procedures, and constitutional principles that regulate economic activities with criteria of environmental sustainability, and the recognition of the rights of nature. Consequently, the research allowed us to extract the main results: (a) to conceive proportionality as a methodological criterion and legal construction; (b) the proportionality test becomes a mechanism at the service of the judge that seeks to provide solutions to adequately resolve conflicts, subject to the principles that govern the rights of nature and economic activities, directly established in the Constitution; and, (c) the proportionality test can be a tool for the motivation of administrative resolutions of declaration of environmental damage, as it will be useful to determine: 1) whether a fact can be considered environmental damage, 2) the amount of the fine imposed, 3) the minimum measures to approve remediation or environmental reparation plan, and 4) the amount of compensation to the victims of the environmental damage. Because of these results, it can be concluded that the normative vacuum in this matter lends itself to the discretion and arbitrary interpretation of the authority, justifying, therefore, the present methodological proposal of the proportionality test for the declaration of environmental damage.

  • The imprevision in the reformed Civil Code

    The essay, based on the examination of the traditional orientation established in the Canal de Craponne arrêt, traces the evolution of the French system concerning the institution of imprévision. We know, art. 1195 of the reformed civil code, highlighting critical issues especially regarding judge discretion.

  • When conceptual autonomy leads to in the (autonomous) absence: Where is moral damage going? A revision of Italian case law

    The starting point of this brief itinerary within the jurisprudence of legitimacy is constituted by the famous sentences of San Martino, pronounced by the United Sections in November 2008, a true and proper crucial moment concerning the subject matter of attention. If this is the starting point, it is not yet possible, on the other hand, to identify a real moment of conclusion of this path, since the point of arrival, far from being reached, looks more and more like a mirage. However, within this ( secular ) litaniae sanctorum, one may sometimes come across some statements that could be peacefully defined as unexpected, if not surprising: small deviations, in short, from the usual path of argumentation that struggle to fit into the latter in a logically coherent way, generating not a little confusion in the jurist.

  • Equal protection for differentiated consumers: The paradox of Heterogeneity in Consumer Law

    Consumers have different preferences, needs and limitations. Despite this unquestionable fact, consumer protection systems tend to bet blindly on egalitarian protection schemes. Even more seriously, many egalitarian schemes operate as mandatory schemes. In this work, it is argued that such schemes severely injure the principle of consumer sovereignty and harm the consumer since they move away from the spontaneous market process and replace it with rigid designs.

  • Conflicts of application of the Organic Administrative Code in Ecuadorian Competition Law

    La entrada en vigor del Código Orgánico Administrativo ocasionó una diversidad de interpretaciones respecto de la aplicabilidad de sus disposiciones a los procedimientos de investigación y sanción a cargo de la Superintendencia de Control del Poder de Mercado. Varias disposiciones de este cuerpo normativo generan oportunidades para unos y riesgos procesales para otros, por lo que su aplicación fue ampliamente controvertida hasta que la Procuraduría General del Estado zanjó la controversia mediante un pronunciamiento que resolvió que la autoridad ecuatoriana de competencia debía aplicar sus normas procedimentales propias, siendo supletoria la aplicación del Código Orgánico Administrativo. Este pronunciamiento deja nuevas interrogantes, ¿cuáles aspectos regulados por el Código Orgánico Administrativo, y cuáles no son aplicables de forma supletoria a la Ley Orgánica de Regulación y Control del Poder de Mercado, su Reglamento y el Instructivo de Gestión Procesal Administrativa de la Superintendencia de Control del Poder de Mercado?

  • The social security for unpaid domestic workers: Death benefits as a relevant protection in the pandemics

    This article analyzes the current protection of unpaid domestic workers through social security. The Organic Law for Labor Justice and Acknowledgement of Unpaid Domestic Work has included unpaid domestic workers in social security, thus assuring them financial protection against old-age, disability, and death. Analyzing the target population of such a law, as well as its intent and conditions for accessing benefits, specifically regarding death, shows that this protection is adequate for safeguarding those who perform unpaid domestic work, and mainly their right-holders because the pandemic caused by SARS-coV2 virus has impacted families not only in terms of health but also in terms of their economic situation.

  • Constitutional Law and Economics

    El derecho constitucional y la economía plantean preguntas como: "¿Cuál es el alcance del poder del Congreso de los Estados Unidos para regular el comercio?"; "¿Cuánta autoridad legislativa se puede delegar a los adminis tradores?"; y "¿Cuándo debería ocurrir un cambio constitucional a través de una actualización judicial en lugar de una enmienda formal?". Para abordar estas cuestiones, el derecho constitucional y la economía combinan análisis positivo, normativo e interpretativo, por lo cual este texto aborda un importante y fértil programa de investigación.

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