Excepción al principio dispositivo aplicado en casación en la justicia ordinaria del Ecuador.

Abstract

Background: Cassation in the Ecuadorian procedural system as an extraordinary means of challenge suffers from a series of doctrinal and regulatory limitations that limit the work of judges by being absolutely governed by the dispositive principle. Objective: To analyze the doctrinal assumptions and existing jurisprudential precedents around a possible exception to the device principle for its application in cassation in the ordinary justice of Ecuador. Methodology: A comparison of the cassation doctrine and the dispositive principle was carried out with the analysis of national regulations and international jurisprudence to distinguish the failures in the cassation process governed by the dispositive principle and to determine its incidence, analysis of data from surveys of lawyers. Results: The scope and legal panorama of the limitations created by the dispositive principle were obtained from the national regulations, while from the comparative legislation and its precedents the possible solutions and from the analysis of the surveys to lawyers the space for action for a change in the cassation system in order to establish exceptions to the principle of the device. Conclusion: Therefore, a series of legal changes of an extraordinary nature must be configured within the existing regulatory bodies in Ecuador to mitigate or reduce the role of the dispositive principle according to the particularities of the case, applying the iura novit curia principle