La prueba oficiosa y su posible vulneración al principio de imparcialidad.

Abstract

The present work develops the theme THE OFFICIAL EVIDENCE AND ITS POSSIBLE VULNERABILITY OF THE PRINCIPLE OF IMPARTIALITY", for this analysis a study on the faculties of the judge, at the moment of applying justice according to law is carried out. The “official test”, also known as the best answer test, according to article 168 of the General Organic Code of Process (COGEP), it was introduced in the COGEP, in the Supplement to the Official Gazette No. 506 of May 22, 2015. In the Ecuadorian legislation, this power of judges was written in Art 130 of the Organic Code of the Judicial Function, even before the COGEP application. In comparative law this test was contemplated in the civil proceedings in Chile and Argentina, years ago, which has been applied, despite the opposition of the positivist doctrine that indicates that this attentive diligence against the dispositive principle. Judicial Activism has been enshrined in the Constitution of the Republic of Ecuador, mainly, in Article 426, which empowers judges to apply directly and immediately the Constitution and the Human Rights’ International Instruments, the latter prevailing over the former when said standards were more favorable. In the neo-constitutionalist doctrine in which supports our constitution allows magistrates to apply directly and immediately the mentioned norms. Therefore, regarding the “official test,” it is absolutely applicable, since judges are constitutionally authorized to directly and immediately apply the rules that ensure efficient judicial protection of the parties, with greater reason based on literal l) of the numeral 7 of Art. 76 of the Constitution of the Republic, is empowered to order this test.