Los patrimonios autónomos como partes procesales : falta de regulación en el COGEP.

Abstract

Throughout history, the capacity to be a party to a proceeding was reserved exclusively for individuals, whether natural or legal persons. However, when we moved from the Classical Theory of Patrimony to the Theory of Patrimony Affectation, the patrimony moved away from the subject and adopted the purpose as the central axis of its content. By means of this change of paradigm, it is feasible for a certain mass of assets to be separated from its owner and to exercise valid legal acts; that is to say, it can subsist independently. With the new theory, autonomous estates arise, understood as a universal mass of assets, whose owner has disappeared from legal life or has been limited in its faculties. Unfortunately, the legislator, disregarding the social and juridical reality of the Republic, omitted to insert the autonomous patrimonies within article 30 of the Código Orgánico General de Procesos; consequently, a problem was generated for the judges, since they must render the public service of administration of justice according to the limitations imposed by the Constitution, the International Instruments of Human Rights and the Laws of the Republic, which means that the magistrates cannot treat the autonomous patrimonies according to their legal nature, since they must base their actions on the legal system, which says nothing about the aforementioned institution. Therefore, objectively, we will determine the causes that justify the regulation of the Autonomous Patrimonies in the Código Orgánico General de Procesos.