Legítima defensa : desafíos contemporáneos.

Abstract

The Self Defense in Ecuador has constantly changed in its normative content from its first meanings contemplated in the Ecuadorian Penal Code of 1837 to the present, where the three main requirements to assess the Self Defense. Through normative historical analysis, jurisprudential analysis, and study of comparative legislation, it is determined that the Self Defense in Ecuador is deficient because it lacks factual presumption within its norm and as such leads to erroneous interpretation by legal operators due to of how limited the law is in relation to the assessment of the facts themselves. In effect, the criterion of the legal operators has its limit in the norm, and since it does not have more content, it can result in a wrong interpretation or an extensive interpretation that transgresses the essence of the norm. The product of the analysis of comparative law, extracted from both Latin American and European legal systems, is that the requirements for the qualification of Legitimate Defense (current and illegitimate aggression, rational need for defense and lack of provocation on the part of the person defending himself) they are insufficient by themselves, since they do not foresee the consideration of the exceptional circumstances that could develop in each case.