Cumplimiento de acuerdos en reclamos financieros y seguridad jurídica en Ecuador.

Abstract

This research analyzes the insufficiency of the administrative mechanisms available to verify and ensure compliance with agreements reached between financial institutions and users during complaint procedures in Ecuador. This study focuses on the stage following the resolution of the complaint: it does not center on the filing of the complaint, but rather on the legal consequences of the agreement reached, the effects it has on the parties, and the tools available to monitor compliance. The legal problem arises when a financial institution fails to comply with the agreement, complies only partially, or delays fulfilling the obligation assumed in the agreement. In these situations, it is very important to distinguish between the institution’s failure to fulfill its obligation and the powers held by the Superintendency of Banks to oversee compliance or, where there is a legal basis, to impose sanctions. This study distinguishes administrative oversight so that it is not confused with enforcement proceedings or the authority to impose sanctions. Administrative monitoring is therefore not treated as equivalent to coercive enforcement or sanctioning authority. The analysis covers the Constitution of the Republic of Ecuador, the Organic Monetary and Financial Code, the Organic Administrative Code, the Organic Law on Consumer Protection, and the Codification of the Regulations of the Superintendency of Banks. In this context, special attention is given to the financial consumer protection regime, the procedures for handling complaints, and the role played by the Customer Ombudsman, particularly with regard to conciliation and the formalization of agreements reached. As a result of the research, this study proposes to distinguish three situations: the agreement(s) reached between the financial institution and the customer; the agreement(s) reached with the intervention of the Customer Ombudsman; and the actions or decisions taken by the regulatory agency. Taking these differences into account, the legal solution can be implemented gradually, beginning with administrative monitoring and verification within existing authorities, corrective measures when necessary, and, finally, if there is an express legal provision authorizing it, mechanisms for enforcement or the imposition of corresponding sanctions. A coordinated regulatory reform is therefore proposed that does not attribute to a secondary regulation power that the law has not conferred.