Inexistencia de prescripción en títulos de ejecución y la falta de rehabilitación del deudor.

Abstract

Within the Ecuadorian legal system, the enforcement phase allows the creditor to seek compulsory performance of the obligation contained in an enforcement title indefinitely, since no time limit exists for that phase. The objective of this academic essay is to analyze the absence of extinctive prescription in enforcement proceedings based on enforcement titles and the insufficiency of the debtor rehabilitation mechanism provided under the Código Orgánico General de Procesos, as well as the consequences it produces for legal certainty and the debtor’s rights, in order to evidence the need to incorporate time limits for enforcement and an alternative mechanism that enables effective debtor rehabilitation. The methodology employed is based on normative and doctrinal analysis. As a result, the essay shows that the absence of a time limit for enforcement allows the creditor to activate coercive measures against the debtor indefinitely, even when the debtor lacks sufficient resources to satisfy the obligation, thereby preventing the closure of the legal relationship, maintaining the obligation without a real possibility of closure, and effectively hindering the reorganization of the debtor’s economic situation. Likewise, debtor rehabilitation under the COGEP is shown to be restrictive, since it depends on full payment, the creditor’s will, or the abandonment of the proceeding for more than ten years, conditions that do not address the debtor’s economic reality. In conclusion, the essay argues for the need to incorporate a time limit for the enforcement of enforcement titles and an alternative mechanism, such as fresh start, to achieve effective debtor rehabilitation.