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New appraisal within the execution and violation
of legal security procedure
Retasa dentro del procedimiento de ejecución y
vulneración de la seguridad jurídica
Franklin Ruben Haro Alvarado
Universidad Laica Vicente Rocafuerte de Guayaquil
City:
Guayaquil
Country:
Ecuador
Cesar Humberto Moreira de la Paz
Universidad Laica Vicente Rocafuerte de Guayaquil
City:
Guayaquil
Country:
Ecuador
Original article (research)
RFJ, No. 11, 2022, pp. 285 -315, ISSN 2588-0837
ABSTRACT:
In this investigation, the violation of some principles
of the constitution is evidenced, such as that legal certainty,
the legal effectiveness, and the affectation of the creditor’s
rights. The phase of the legal procedure in which the study of
the violation of the legal security of the procedural subjects is
deepened, is in the execution stage, precisely in the diligence
of the new appraisal when an embargoed asset, established
in article 405 of the COGEP, which resides in the resumption
of the auction if there is no position in the first and second
signal. The problem is the creditor’s impediment to collecting
their money, which despite complying with the requirements
determined by law, has not been able to sell. Therefore, the
lack of law can be seen in Book V, Chapter III of the COGEP,
since the enforcement measures applied are not effective, since
they lead to various events that make it impossible to award the
DOI 10.26807/rfj.v11i11.318
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property, such as the lack of information and the high appraisal
determined by the experts, not related to the real value of the
goods. These drawbacks deserve to be solved, to prevent the
situation from worsening, since it is currently evident, mainly
in creditor institutions, when experiencing the inconvenience
of collecting your money. In this analysis, descriptive research
was used, through surveys and interviews, which allowed us to
fully examine the elements of this study. since it is currently
evident, mainly in creditor institutions, when experiencing
the inconvenience of collecting your money. In this analysis,
descriptive research was used, through surveys and interviews,
which allowed us to fully examine the elements of this study.
since it is currently evident, mainly in creditor institutions,
when experiencing the inconvenience of collecting your
money. In this analysis, descriptive research was used, through
surveys and interviews, which allowed us to fully examine the
elements of this study.
KEYWORDS:
taxation, legal norms, legal procedure, civil
obligations, legislation.
RESUMEN:
En esta investigación, se evidencia la vulneración
de algunos principios de la constitución, esto es, el Debido
Proceso estatuido en el Artículo 76 de la Constitución de la
República del Ecuador, así como el de la Seguridad Jurídica
estipulado en el Artículo 82 del mismo cuerpo normativo,
además el menoscabo de los derechos del acreedor. La fase
del procedimiento legal en que se ahonda el estudio de la
vulneración de la Seguridad Jurídica de las partes procesales es
en la etapa de ejecución, precisamente en la diligencia de la
new
appraisal
cuando se remata un bien embargado, establecido en
el artículo 405 del COGEP, que consiste en la reanudación del
remate, en el hipotético caso de no existir postura en el primer
y segundo señalamiento. El problema, es el impedimento del
acreedor al cobro de su dinero, que, a pesar de cumplir con
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los requerimientos determinados por las leyes, no ha podido
venderse. Por lo que se puede percibir existe oscurantismo
en el Libro V, Capítulo III del COGEP, por cuanto las medidas
de ejecución aplicadas no son en su totalidad efectivas, ya que
dirigen varios actos que obstruyen poder adjudicar el bien,
como son, la escasa o minúscula información y el alto avalúo
fijado por los peritos, no acorde al valor real de los bienes. Es
menester que esta problemática sea solucionada, para evitar
que se complique la situación jurídica, ya que en el actual
cuerpo legal adjetivo transgrede grotescamente los Derechos
antes mencionados de los justiciables, principalmente a las
instituciones acreedoras, al tener que lidiar con las molestias
de las respectivas diligencias, para así poder efectivizar el cobro
de su dinero. En este estudio se ha utilizado una investigación
descriptiva, mediante encuestas y entrevista que han permitido
conseguir examinar completamente los elementos de este
estudio.
PALABRAS CLAVE:
fiscalidad, norma jurídica, procedimiento
legal, obligaciones civiles, legislación.
JEL CODE:
H76, K41.
INTRODUCTION
The present research consists of a statement of the
existing problem is made, some questions are formulated
that are very valid, because these facts are not established in
our procedural codes, but what happens, and therefore it is
necessary to generate a procedural habit about the theoretical
basis of the process and its end.
The systematization of the problem where several
unknowns are established, contributed to the development of
analysis technically and thus be able to answer the questions
that were raised, it is worth mentioning that this chapter also
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includes the general and specific objectives, which will allow a
better understanding of where this research is oriented. Also,
through appropriate reasoning, the importance of this analysis
is justified, a delimitation or scope of this research is presented,
its hypothesis or idea to be defended and the variable to use.
This research includes data that were used in this
research project, the background of the matter under study,
information about the new appraisal, Execution processes,
Auction, and Legal Security, obtained through sources of
reliable information in scientific articles, newspapers, websites
web, bibliography, texts, and others obtained individually,
which together with the doctrine have contributed to the
theoretical investigation of this chapter. A legal framework
and a conceptual framework have been designed, which have
served to clarify various concepts and unknowns concerning
the matter as well as to empower knowledge.
Finally, it is made up of information regarding the
methods used in the investigation, which has helped me to
carry out the investigation process in an adequate way. Using
methodological tools, we have proceeded to carry out surveys
and interviews with different Judges and Lawyers in the free
exercise, the respective conclusions and recommendations
have been designed, and a proposal has also been made to
implement a reform of the law, the which I consider to be the
useful mechanism to solve the problems raised in this study.
1. CHARACTERISTICS OF THE EXECUTION PROCESS
Within the Execution Process, the titles must meet the
following requirements to be executive:
1.
That they do the tests themselves, without it being
necessary to complete them with acknowledgments,
checks, or authentications.
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2.
That through them the existence of labor obligations,
patrimonial or not, enforceable when the lawsuit is
established, against the individual to be sued, be verified,
since it is the executive procedure, the executive titles
have the number of provisional sentences, they are
fulfilled by the right that the laws grant them.
For this reason, the commitment contained in the
Executive Title must be safe and enforceable, in addition to
complying with the characteristics, since it represents a form of
compliance with the right, conclusively in the sentence. Which
would be a guarantee for the execution process to be completed
satisfactorily.
1.1. Execution process
Doctrinally, when the execution is considered as part
of the obligation, some correspondence arises between the
imprecise and the determined, concerning the fact that in the
execution the norm finds its positive reality. The characteristic
of enforceable is typical of every jurisdiction, its name expresses
the obligation of the norm and commits the decision of the
debtor to the recognition of an obligation, and often to accept
something.
On the positive side, the concept finds its legislative
formulation in art. 2,740 of the Italian Civil Code “The debtor
is responsible for the fulfillment of his obligations with all
his assets” and in art. 2.910: “The creditor, to obtain what is
due to him, can expropriate the debtor’s assets”. These legal
provisions support compliance with the obligations of giving,
doing, and not doing and materializes them in the patrimonial
responsibility of the debtor before the creditor through the
actions of the respective jurisdictional bodies.
The doctrine has clarified its real nature as opposed to
the personal nature of the debt. The reality of the obligation
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must already contain the execution in itself; This is equivalent
to saying that the execution is a moment of the obligation
and cannot be dissociated from it, as do those who consider
it episodic, reducing it to an illicit act (non-compliance) and,
Procedural Execution, taken, therefore, configuring it to the
very measure of grief. The was structured without the intention
of going into details or analysis of the doctrinal dispute between
the theory of the autonomy of the execution process and its
detractors.
The execution process is considered by the doctrine
as the structured set of steps that aims to make effective the
sanction imposed by a previous sentence of conviction that,
as such, imposes on the expired the performance or omission
of an act, when this is not voluntarily performed and omitted
by him. We additionally indicate that this type of process can
autonomously exhaust the role of the judicial function with
extrajudicial titles, to which the law assigns effects equivalent
to those of a conviction sentence (execution titles).
According to Devis Echandía (2017): “In the execution
process, it is sought to satisfy through an act the patrimony
of a person, a legal interest, in favor of the plaintiff of this, in
a sentence of conviction or in title that meets the other legal
requirements” (p. 87). Through the author’s criteria, it is
understood that the enforcement process seeks to fulfill a legal
interest in favor of the plaintiff with the payment of the debt
with the debtor’s assets, which according to the doctrine is done
through a series of structured steps to do effective the penalty
imposed by a previous sentence, for which some obligations
must be met.
1.2. Obligations that are demanded in the execution process
a) Process of execution of obligation to give the sum of money
b) Execution process of the obligation to give a determined
good.
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c) Process of execution of obligation to do
d) Execution process of obligation not to do.
2. EXECUTION BUDGET
We can use certain assumptions to assume that
execution is effective.
1.
That the sentence is definitively final, that there is no
other ordinary or extraordinary appeal against it, that
there is res judicata.
2.
That the execution is requested by the parties.
3.
That it is a conviction.
4.
It may also be acts that entail execution, that is, or that
have the force of such, that is, conviction, withdrawal,
conciliation, or transaction.
5.
The existence of an executable patrimony depends on
whether it is the delivery of a movable or immovable
thing or the condemnation to the payment of a sum of
money. Following the provisions of the Civil Code “The
debtor’s assets are the common pledge of the creditors,
but there are legitimate causes of preference, which
are the privileges and the mortgage. The execution
of the sentence or any other act that has such force
corresponds to the court that has heard the case in
the first instance. In conclusion, the execution of the
sentence will correspond exclusively to the court that
heard the case.
It is valuable to be governed by these criteria since they
tell us if the actions that are being carried out are correct.
3. RIGHT OF PREFERENCE (PRIORITY
)
According to the dictionary of legal definitions, the
word priority comes from the Latin
praelatio
, which means the
priority of something over something else. The term priority is
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a cultism that is used infrequently in colloquial language. The
idea of
priority usually refers to a certain order, in which an
aspect of a person has a certain preference. The order of priority
of the laws is transcendental to understand any legal system of a
country, the priority in the law consists of the priority of some
laws over others. As a general criterion, this ordering of the
laws according to their rank is based on establishing the law
with the highest hierarchy and at a lower level the laws with the
lowest rank. In other words, starting from a fundamental rule
(for example, the text of a constitution) it is possible to design
other secondary rules. Therefore, if there is no order of priority
in the laws, there would be all kinds of legal conflicts, since it
would not be easy to specify which law is the one that should
be applied in each case, this classification has been established
by classes.
3.1. Order of priority for the payment of credits
3.1.1. First class credits (Art 2495 CC)
If there are several first-class credits, they will be paid
in the order established in article 2495 CC, taking into account
the legal and jurisprudential modifications that have been made
to the subject, with said priority remaining as follows: Food
due to minors: article 134 of the Law 1098 of 2006 (code of
childhood and adolescence), Administrative expenses caused
in the proceedings of the reorganization agreement and judicial
liquidation: article 37, 71 of the Law of 1116 of 2006
Wages, salaries, all benefits, or compensation from
the employment contract: Law 50 of 1990, The legal costs that
are caused in the general interest of the creditors. (Art 2495
n1), The necessary funeral expenses of the deceased debtor.
(Art 2495 n2), The expenses of the illness were suffered by the
debtor. (Art 2495 n3), The necessary subsistence items were
supplied to the debtor during the last three months. (Art 2495
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n5), Tax credits for taxes: owed to the nation, departments, or
municipalities (Art 2495 n6).
3.1.2. Second class credits (article 2494 CC)
The order of priority does not exist since each loan
has its guarantee. Finishing off the good that guarantees it, the
preference is exhausted, and if it has not been fully covered,
the balance becomes a second class common credit, Those
of the innkeeper on the effects of the debtor, Those of the
carrier on the objects transported, Those of the pledgee on
the pledge (with or without tenure), Credits or securities that
the promising buyers have canceled due to quotas to natural or
legal persons who are engaged in the construction and sale of
real estate for housing and that are in judicial reorganization or
liquidation processes, Decree 2610 of 1979 in its article 101,
The beneficiary creditors of the autonomous patrimony formed
in the fiduciary orders and commercial trust contracts:
3.1.3. Third class credits
The mortgage becomes effective on the property
that is affected by the lien. However, the law allows the same
property to be encumbered with several mortgages, giving rise
to first-degree mortgages, second-degree mortgages, and so on
successively. The order is established according to the order of
registration in the Public Instruments Registry Office (Art 2499
C. C). It includes mortgage credits, as well as credits protected
by mercantile trusts and trust orders in the case of real estate
subsection 3 of numeral 4 of article 38 and numeral 1 of article
43 of Law 1116, except for clause expressly accepted by the
respective creditor to arrange something else. Specific case:
there are cases in which the property has disappeared, and a
real subrogation operates, under which the replacement object
of the property, is money.
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3.1.4. Fourth class credits (article 2502 CC)
The different credits framed in the fourth class are
preferred to each other according to the date of their causation
(art 2503 CC)
That of administrators for their appointment, That
of parents for their children for their birth; and That of the
guardians in front of their wards for that of their possession.
Regarding the date of the credits of suppliers of raw
materials, Law 1116/06 did not refer to that date, so it must be
understood in which the legal relationship arises. If they are of
the same date, they are prorated.
3.1.5. Fifth class credits
Also called unsecured or ballistae (article 2509 CC).
The fifth-class credits participate proportionally, according to
their value, of the surplus of the mass of goods once the first
four classes have been covered. It does not have priority, even
if its dates are different.
All this order established by law regarding payment of
credits helps the organization and avoid future inconveniences.
The law also clarifies which assets the execution falls on.
4. ASSETS ON WHICH THE EXECUTION RELIES
4.1. Property
The seizure of real estate will be practiced by
apprehending them and handing them over to the respective
depositary so that they remain in the custody of this or this. The
properties on which judicial antichresis has been constituted
will remain in the power of the executing creditor. The property
deposit will be made detailing the approximate extension,
the buildings, and the plantations, listing all their stocks and
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forming an inventory with an expression of quantity, quality,
number, weight, and measure when appropriate. The seizure
must be registered in the registry corresponding to the place
where the property is located. If the property is in two or more
cantons, the registration will be made in all registries.
To give way to the seizure of real estate, the judge
will ensure through the certificate of the property registry,
that the assets belong to the or the executed and that they are
not seized. If the goods are in the possession of the tenant,
uncreative creditor, or others, the seizure will be practiced
respecting their rights and they will be notified, except in the
case in which the constitution of the described contracts is
after the registration of the corresponding mortgage deed, or to
the seizure, kidnapping or prohibition of alienating, since then,
the seizure requested by the executing creditor will be verified,
notwithstanding such contracts, in a common way. Once the
goods are finished, the lease or antichresis will be respected as
provided by law. The depositary will receive the rent and in
case of auction or payment of the obligation,
4.2. Furniture
The seizure of movable property will be practiced
by apprehending them and delivering them to the respective
depositary so that they remain in the custody of this or this, but
the assets encumbered with judicial antichresis will continue
in the power of the executing creditor or creditor. The deposit
of movable property will be made by forming an inventory of
all objects, with an expression of quantity, quality, number,
weight, and measure when applicable, and that of livestock,
determining the number, class, weight, gender, race, brands,
signs and approximate age. The seizure of recordable movable
property will be entered into the corresponding registry.
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4.3. Quota or rights and shares
The seizure of the quota or rights and actions of a
universal or singular thing or rights in common will be done by
notifying the seizure order to any of the coparticipants, who by
the same fact will remain as the depositary of the seized fee. If
the co-shareholder refuses the deposit within the third day of
notification, another of the co-shareholders will be notified. If all
refuse, the depositary will take over. In the case of seizure of the
share of one of the spouses in the assets of the conjugal partnership,
the other spouse, if he or she is of legal age, will be considered
the depositary of said share and will have its administration. If
the deposit is refused or is a minor, the respective depositary will
be responsible, in the second case, until the spouse reaches the
age of majority and accepts the deposit.
Art. 367-368.- Obligations to give money or goods of
gender. In the case of an obligation to give money,
the procedure will be following the provisions of this
chapter. In the case of a debt of a specific kind, the
judge will issue an order of execution order that the
defendant, consign the number of generic goods or
deposit the number of said goods at their current market
price on the date it was issued., under preventions of
proceeding to seize sufficient assets in the manner
provided by this Code. The execution proposed for
the payment of periodic pensions, for the fulfillment
of obligations that had to be satisfied in two or more
installments, may include the pensions and obligations
that have expired in the subsequent periods or terms,
even when the judgment had been contracted upon
payment. of a single pension, or to which should have
been given or made in one of the terms.
Art. 368.-Obligations to do. In the obligation to do if
the creditor requests that it be complied with and this
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is possible, the judge will indicate the term within
which the debtor must do so, under the warning that,
if such order is not complied with, the obligation will
be fulfilled. Through one or a third party designated
by the creditor, at the expense of the executed person
if they have so requested. (General Code of Processes,
2015, arts. 367-368)
If for any reason the execution of the act is not
obtained, the execution judge will determine in a
hearing convened for this purpose and based on
the evidence provided by the parties, the amount of
compensation that the debtor owes pay for the breach
and will arrange the respective collection following the
procedure provided for the execution of an obligation
to give money.
The execution order will contain the order for the
debtor to pay the amounts corresponding to the
compensation for damages to which they have been
sentenced.
The execution order will indicate the amount of money
that the debtor must pay, when he has refused to comply
with the obligation that is ordered to be fulfilled by a
third party, it will compensate the latter for what has
been done.
If after the term granted by the judge to comply with
the obligation, the debtor does not do so, the judge will
seize their assets in the manner provided in this Code,
in a sufficient value to cover the cost of compliance
with the obligation by the third party designated by the
creditor.
If the fact consists of the granting and signing of an
instrument, it will be done by the judge on behalf of the
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person who must perform it, this act will be recorded
in the process.
These assets detailed above on which the execution
or seizure falls obey a series of characteristics and details
established within their respective codes of law. Regarding how
the execution of these assets should be carried out, there are
two types.
4.4. Execution Types
Forced. -: Does not voluntarily deliver the goods. Then
the plaintiff asks the defendant or executed to resign
the assets.
Voluntary. - The executed person places his assets
at the disposal of the judge, through the resignation
ordered by the judge
4.4.1. Compulsory execution
It is jurisdictional activity. - The exercise of
jurisdictional power would be incomplete if judges and courts
did not have the unavoidable coercive force to intervene in
the debtor’s patrimonial and personal legal sphere and make
effective, definitively, and irrevocably, the contents of the
sentences. Forcible execution is the jurisdictional activity par
excellence because it requires the use of state force. So much
so that the declaration with res judicata effects on litigation
can be entrusted to an arbitral tribunal, but to enforce the said
resolution, judicial intervention is necessary, although this
possibility should be debated to enhance the effectiveness of
the arbitration.
There is a right to execution both to enforce a judicial
decision or an arbitration award, as well as to make the right
contained in an extrajudicial executive order a reality, which,
although it does not need a prior declaration emanating from
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a jurisdictional body (execute the court ), specifies for its
holder the right to the execution of his credit, in what has been
classified as privileged guardianship, since the civil procedural
law establishes that a prior declaration is not required, granting
the title unless proven otherwise, the presumption that the
obligations contained therein have sufficient force to demand
their full compliance before the courts.
4.4.2. Voluntary Execution
This proceeds without the need for the use of public
force, with the sole will of the debtor, and can even be done
extrajudicially, in our legal system at the time of issuing a
sentence, the payment order is given, then it can be executed
voluntarily without the need to use force, but if it objects or
does not comply within the given timeframe, the other party
can request compulsory execution. In the execution, there are
not two parties that dispute the reason, since there is already
a mandate for a payment order, there is no disputed claim,
where nothing is resolved, only it is executed, it is said that
the execution is the opposite of the resolution. The order for
payment process as stated is composed of two eventual phases:
the first phase being a payment order in itself,
As we can see in the forced execution, the debtor
does not have voluntary delivery of goods, so the defendant is
asked to resign the goods, instead in the voluntary, the debtor
makes his assets available to the judge, through the willing
resignation by the judge. Once the action is executed, if it is a
forced execution, the seizure of the assets with their respective
appraisal is established.
5. THE SEIZURE AND ASSESSMENT OF ASSETS
Before holding the public auction or compulsory
disposal, the objects that have been seized must be valued and
whose sale is foreseen in the corresponding auction, known as
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in legal jargon, as well as appraisal of the seized assets is carried
out provided that the value of the object not contractually
determined. This value will be the market value and helps
to set the rate at which the asset in question is to be put up
for auction. If they are personal property, the appraisal will
be carried out by experts appointed by the parties. The same
will be done when real estate is destined for auction; But, in
addition, the seized debtor must provide the documents that
prove their ownership and request from the Property Registry
the certificate of charges that affect the property.
The General Organic Code of Processes in its Art. 398
on the Auction of the assets of the or the executed. - It says
that the assets of the or the executed, that are not specified or
described in the previous articles, are movable or immovable,
rights or shares, will be auctioned through the unique platform
of the website of the Council of the Judiciary. By agreement of
the parties and at their expense, the seized assets may also be
auctioned in public or private entities authorized by the Council
of the Judiciary. The executor and the executed person may
reach a consensus in which the sale, both of furniture and real
estate, is made by a hammer, with the intervention of a public
hammer, an agreement that must be respected by the judge.
As we can see before the seizure is carried out, the
property appraisal process is carried out, for which, if they
are movable property, the appraisal must be carried out by the
experts appointed by the parties, also if they are real estate
those destined for auction.
6. EMBARGO PROCEDURE
According to Cabanellas (1981) “The embargo is an
impediment or obstacle; and also, discomfort, annoyance or
damage” (p.86). The seizing creditor is the one who, if he attends
the seizure procedure, will designate the debtor’s assets that
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are to be locked. When the assets to be seized are immovable,
the seizure is carried out by the annotation procedure, which
consists of registering the lock and leaving a record of the
seizure in the Property Registry. If the lock must be projected
on the movable property (credits, jewelry, etc.), the seizure is
carried out by the deposit procedure, which consists of leaving
the property attached to the guard or custody of the person,
especially in charge, which is often the judicial depositary itself.
It can be understood that, during the seizure procedure,
the garnishee goes to this diligence to choose between the
debtor’s assets, for this purpose, the chosen assets will be
placed in a lock and registered in the property registry, or if
within the goods, choose credits or jewelry or other small
objects, it must be left in the custody of a person in charge or a
judicial custodian. To choose between the debtor’s assets, there
are preferences.
6.1. Embargo preference
The General Organic Code of Processes in its book V,
called execution, refers to the preferences of seizures, which
are exercised by the creditor at the time of the request, among
which they usually occur; the seizure of money which consists
of seizing money from the property of the debtor, for immediate
payment to the creditor prior order of a court. In this regard,
Pérez and
Hormazábal (
2015) mention that: “Bank assets are
important in shaping people’s assets, sometimes their seizure
can be effective, in Europe the creditor tends to focus on the
collection of their credit through the seizure of the debtor’s
bank accounts” (p. 328). This is explained by the fact that the
income, which a certain person receives, is usually transferred
to them and, with it, a considerable portion of their wealth on
which to materialize the responsibility of the executed person.
The process for the seizure of money, following the
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provisions of Article 378 of the General Organic Code of
Processes, states that, once the money owed by the debtor has
been seized, the judge will order that said value be transferred
or deposited in the account of the respective judiciary, to
immediately arrange payment to the creditor.
We also have the seizure of movable property, which
consists of the apprehension and delivery of the assets to the
respective judicial depositary, so that they remain in the custody
of the latter, as provided in article 381 of the General Organic
Code of Procedures. It is necessary to point out that the deposit
of movable property is done after preparing an inventory of all
objects, with details of quantity, measurement, weight, and if
it is livestock, the number will have to be determined, weight,
class, gender, race, brands, marks and approximate age.
In the same way, we also have the seizure of vehicles,
which consists of the capture of the vehicle with the intervention
of the public force, which will be in charge of immobilizing it
by employing any device that prevents its use, as long as it does
not affect the property, Prior seizure order issued by the judge,
which must be communicated to the transit authority so that
they can proceed to make the relevant registrations, in harmony
with the provisions of Article 382 of the General Organic Code
of Processes.
6.2. The Real Estate Seizure
This type of seizure occurs more frequently in executive
trials, this consists of the apprehension and delivery of the
property to the judicial depositary so that they remain in their
custody. The deposit of real estate will be done by expressing
the extension, buildings, and plantations, likewise listing all its
stocks and forming an inventory with the expression of quantity,
quality, number, weight, and measure when appropriate. Once
this type of seizure has been carried out, it will be registered
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in the corresponding registry prior order of the judge, so that
the Property Registry where the property is located, takes note
in its books, as provided in Article 384 of the General Organic
Code of Processes.
Once the asset or assets to be seized have been chosen
and the assets registered or locked, or left in custody, the auction
process of these assets is carried out to recover the money from
the executor.
6.3. Auction of seized assets
The auction of seized assets lies in the process to be
followed after the judge has ordered the seizure of the assets of
the executed, before an order for the execution of a sentence
issued by him. Once the property has been seized, the judge,
at the request of a party following the provisions of the device
principle indicated in article 19 of the Organic Code of the
Judicial Function, orders following the provisions of the third
paragraph of article 375, that an expert accredited by the Judicial
Function, carry out an appraisal of the property, to determine the
value it has and for which it will be offered for sale to the public
through the unique platform of the website of the council of the
judiciary. In our country since November 2015,
This new computerized system of online judicial
auctions is made up of a platform enabled by the Council of the
Judiciary, which helps to publish, disseminate, and carry out
the auction of movable and immovable property, Rights, and
actions following the provisions of Article 398 of the General
Organic Code of Processes. This digital support (platform)
contains a code that the system generates for the asset to be
auctioned, it also contains the type of asset, its appraisal, the
jurisdictional agency that decreed it, photographs, location,
characteristics, registry limits, property area and If this is the
case and the property’s cadastral key, in addition to this, it also
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includes the number of the judicial process in which the auction
was ordered and the start and end date of bids.
From what can be seen, this newly implemented system
can achieve transparency, the universality of information, and
access for the acquisition of goods so that the creditor collects
his credit and in turn, the executed one obtains a good price
of the good for the payment of his obligation. However, since
its implementation, it has not been possible to disseminate,
socialize and summon the auctions to be held. That is why when
an auction is called, there are no interested people because most
are not aware, that there is this kind of auction, much less how
to enter to apply through this implemented platform. Therefore,
more emphasis should be given to this issue that is so damaging.
When there are no bidders, the creditor may request
the rebate of the seized assets and the auction process will
resume with the new appraisal.
7. THE
NEW APPRAISAL
It is the process by which the expropriated property is
valued again because more than two years have elapsed without
the amount set as a fair price in an expropriation process having
been made effective or consigned. Delaying does not mean
updating the values
calculated on the expropriation object, but
rather proceeding with a new and different valuation of the
property. According to Cabanellas (1981) “the new appraisal
is an instrument conceived initially by the Jurisprudence and
later by the Law, to fight against this delay in the payment of the
price of the expropriated good” (p. 75). It is based on granting
the right to demand a new valuation of the expropriated thing,
adapted to the monetary depreciation if two years have passed
since the fair price was set and the payment had not been made
or had not been recorded.
Given the lack of operability of this guarantee, the
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provision of automatically reviewing the fair price has been
encouraged without the need to urge a new appraisal, the fair
price can be done either by agreeing on the fair price or by
mutual agreement. In the absence of an agreement, it must be
established by the expropriation Jury, against said agreement
it is possible to go to the contentious-administrative courts,
which have the power to judge whether the price set by the
Jury was fair or not, was or was not at the tenor of the norm.
The fair price or fair price constitutes compensation for the
loss of expropriated property and rights and is a fundamental
component of expropriation, which differentiates this from
confiscation, in which there is loss of the property of the
individual, but there is no compensation.
7.1. Delay and seizure of other assets according to COGEP
If there are no bidders, the creditor may request the
rebate of the seized asset and the auction will resume with a
new price, or it will request the seizure and auction of another
asset, releasing the previously seized asset. If the cash price
offered does not achieve the payment of the credit, you may
request that the term dividends be auctioned as credits.
The General Organic Code of Processes in its art. 405
on the Retardation and seizure of other assets says that. “If
there are no bidders, the creditor may request the rebate of the
seized assets and the auction process will resume with the new
appraisal or request that other assets be seized and auctioned,
releasing the previously seized assets.” If the price offered in
cash is not enough to cover, they auction off the term dividends
as credits, and its object will always be that the expert in the new
appraisal considers a reduction concerning the one originally
set. Which makes room for the expert to impose the value of
the appraisal according to their criteria or point of view and is
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not covered by a rule in which they must appraise accurately.
7.2. Nullity of the auction
The auction must be canceled in the following cases.
1. If it is verified on a date other than that indicated by
the judge.
2. If the auction has not been publicized in the manner
ordered by the judge.
The nullity may be declared officially or at the request
of a party at the position qualification hearing. When the
auction is declared invalid, a new date will be set for the auction
following the law
7.3. Award order
Within ten days after the bidding qualification, the
order is executed, and the bidder will preferably consign the
cash price, once this has been done, the judge will issue the
adjudication order that contains:
1. The names and surnames, identity card or passport,
marital status, of the debtor and of the bidder to whom
the property was awarded.
2. Individualization of the good offered and its domain
references.
3. Value for which it was auctioned.
4. The payment of the taxes is registered before their
adjudication.
5. Other information that the judge considers accurate.
The judge will order that once the adjudication order
has been executed, the values
corresponding to the unaccepted
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bids will be returned. If the auctioned thing is real estate, it will
be mortgaged, for which it is offered in the term, this lien must
be registered in the corresponding registry, at the same time as
the transfer of ownership. In the same way, the pledge will be
kept in the possession of the pledgee while the auction price is
canceled.
Non-consignment of the offered value. If the bidder
does not consign the amount that he or she offered in cash,
the next bidder will be notified, in the order of preference, to
consign, within ten days, the amount offered, and so on.
8. LEGAL SECURITY
Legal security is one of the most precious assets that
the state must give to the people. According to Aguirre Vallejo
(2016):
All human beings from birth enjoy various prerogatives,
innate to their human nature, such as freedom,
innocence, life, and dignity, and among those basic
privileges of every person who ensures their equal
treatment, ensuring social justice, is the right to legal
security, and that constitutes one of the most precious
assets that the State must guarantee to its subjects. (p.
156)
Legal security is a basic condition for a State to have
social peace and political stability, conditions that in turn favor
its development and the current legitimate concern in our
nation for the role that the legal system must fulfill, creating the
conditions that favor development have been the motivation
that directed this research work. Legal security, immaterial or
formal, as it is also known, does not consist but in the certainty
of the rule of law; that is, in the guarantee that the legal system
will be applied objectively; It is also a fundamental principle of
the Rule of Law, which translates into the guarantee that it offers
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to every citizen that their rights enshrined in the Constitution
and the laws will be respected and that therefore they will not
be subsequently altered or violated. grotesquely contravening
the legal norm under which they have been acquired; it is,
therefore, a collective good. a fundamental principle of the
rule of law, which translates into the guarantee that it offers
to all citizens, that their rights enshrined in the Constitution
and the laws will be respected, and that therefore they will not
be altered or violated later, grotesquely contravening the law.
legal rule under which they have been acquired; it is, therefore,
a collective good. a fundamental principle of the rule of law,
which translates into the guarantee that it offers to all citizens,
that their rights are enshrined in the Constitution and the laws
will be respected, and that therefore they will not be altered or
violated later, grotesquely contravening the law. legal rule under
which they have been acquired; it is, therefore, a collective good.
8.1. Legal security in the Constitution
The Constitution of the Republic of Ecuador of 2008,
in Art. 82 proclaims the right to legal security and expresses
that it is based on respect for the constitution and the existence
of previous legal norms, applied by the competent judges, it is
worth saying the authentic validity of the law.
8.2. Legal Security and Due Process
Legal certainty has to do with the stability of the rules,
with the public, open and effective debate to transform them
into strict law. According to Granja (2014): “For there to be
legal certainty in the application of the laws, an endorsement
is necessary society’s morality to issue them, and not only with
the legislative sanctification of the laws” (p. 23). The concept
of legal security is the guiding principle of the postulates that
constitute a due process that, in the Ecuadorian case, enshrines
the norm contained in Art. 76 of the current Supreme Law.
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In Ecuador, the cradle of notorious transgressors of the legal
framework, there are innumerable cases in which not only this
primordial premise of Western Law is violated, not only this
primitive assumption of Western Law but also customarily
destroys all possible principles of due process,
As regards legal uncertainty, it has even reached the
sphere of constitutionality. The legal uncertainty is such that
similar cases, essentially identical, are signed by the same Judge,
being on one occasion rejected and on others accepted.
9. METHODOLOGY
For the development of this scientific article, the most
suitable methods and instruments were used for its elaboration,
for which different types of research have been used such as;
non-experimental, interactive, historical, descriptive logic, with
quantitative and qualitative approaches, deductive and inductive
methodology was also used, and as data collection techniques,
interviews, and surveys were used with its instrument the
questionnaire, with which it was I manifest the feasibility of
the hypothesis raised in this matter.
9.1. Population and Sample
9.1.1. Population
A population is made up of elements that make up a set,
the same ones that have similar characteristics, in this research
a group of people will be studied, from which information was
obtained, a population of 68,990 was considered
Table 1:
Population
Population
Total
Percentage
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Forum of Lawyers of the prov
-
ince of Guayas
68,99
0
100%
Source:
Judiciary Council. Own elaboration.
9.1.2. Sample
This is the formula that was used to calculate the sample.
N
n =
% 2 (N-1) +1
68,990
n =
(0.05) 2
(68,989) +1
68,990
n =
1.1724
n =
59
n =
Sample Size
N =
Population
Applying the formula, a sample of 59 involved was
obtained, who will be selected in the following way: 56 Lawyers
in the free exercise and 3 Judges. The survey and interview will
be applied to this sampling exercise, which will serve as the
basis for carrying out an analysis of the results.
Table 2:
Sample
Group
Individual
Sample
Size (n)
Percentage
Sampling
Type
Instrument
Judges
3
5%
Random
Observation
Tokens
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Lawyers in free
exercise.
56
95%
Simple
Questionnaire
Total
59
100%
Source:
Judiciary Council. Own elaboration.
CONCLUSIONS
Through the results obtained through the interviews
carried out with judges immersed in the knowledge and
application of the objective rules, it was possible to show that
the Redemption is the revaluation of the goods and through
this, the creditor is granted the right to request another price of
the expropriated good, according to the monetary depreciation.
They stated that in the application of the Delay there is a
violation of the Legal Security of the procedural subjects and
the effect of the Principle of Due Process, due to the lack of
laws. They agree that there should be rules with well-defined
procedures for the rebate because it will thus improve the
execution processes.
Therefore, the Hypothesis raised in this Investigation
is verified that, if Article 405 of the COGEP is amended, the
violation of the Due Process established in the Constitution of
the Republic of Ecuador and the Violation of the Legal Security
of the procedural subjects would be avoided.
Likewise, the interviewees believe that the auction
of the seized assets is not being carried out in the best way,
because there are no rules that regulate the diligence of the new
appraisal and that is why the end of the auction is not achieved.
They also believe that people are unaware of the events to be
held and the procedure that must be carried out to make an
auction bid online on the website of the Council of the Judiciary,
so it should be publicized so that it can achieve bidders for the
purchase of the auctions. Based on the previously exposed
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criteria of the people interviewed and the conclusions that have
been reached based on this study, it is considered that, if it is
appropriate to make a reform to the General Organic Code of
Processes, to solve the existing problem.
The Redemption must be applied under the criteria that
are applied in the real estate market, it should be reasonable,
not minimal to the value of the previous expert opinion, nor
excessive that does not allow the auction of the seized asset.
There must be well-defined rules for the Redemption so that
the Legal Security of the procedural subjects continues to be
violated and affect the Due Process. That it be advertised so
that people know about the events to be held and the procedure
that must be followed to make an online auction posture on the
website of the Judicial Council.
So, based on what is stated in this research, I propose to
reform the General Organic Code of Processes, Book V, Chapter
III article 405, incorporating a subsection that establishes the
following: That parameters be created for the realization of the
Through a new expert opinion, a table with values
to be applied
in the rebate is established, and criteria that must be accepted
by the evaluating experts, In addition, the Expert must support
his report, and any reduction must be under criteria that are
applied in the real estate market.
Taking into consideration the criteria of each judge,
obtained in the interviews and based on the synthesis that
has been reached for the solution of the problem posed in this
work, it is proposed that a Reform be made in the General
Organic Code of Processes, Book V, Chapter III to article 405,
Redemption and seizure of other assets that says: “If there are
no bidders, the creditor may request the rebate of the seized
assets and the auction process will resume with the new
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appraisal or request that other assets be seized and auctioned,
releasing previously seized assets. If the value offered in cash is
not enough to cover the credit of the executor or the third party,
they may request, at their discretion, that the term dividends be
auctioned as credits “
At present there is difficulty with this legal provision
since, it is not possible to finish off the seized property due to
the lack of clear delineations, for that reason it is necessary to
correct this rule considering the following requirements:
a)
That parameter is established for carrying out the
rebate through a new expert opinion so that it is not at
the discretion of the appraising experts to determine
the new price of the appraisal and thus the violation of
rights and legal security is not achieved.
b)
That there is a table with values
to be applied in the
rebate, and criteria that must be practiced by the
evaluating experts.
c)
That the expert commits to support his report, and any
reduction must be under parameters that are applied in
the real estate market, that is, it should be reasonable
and consistent, therefore, an exaggerated decrease of
50% of the value would be unacceptable. of the previous
expert opinion, but not a minimum reduction that does
not allow the auction of the seized asset.
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(2002).
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Received:
01/09/2020
Accepted:
27/05/2022
Franklin Ruben Haro Alvarado:
Universidad Laica Vicente
Rocafuerte de Guayaquil.
Email:
orah_@hotmail.com
City:
Guayaquil
Country:
Ecuador
ORCID:
https://orcid.org/0000-0003-2484-1536
Cesar Humberto Moreira de la Paz:
Universidad Laica
Vicente Rocafuerte de Guayaquil.
Email:
orah_@hotmail.com
City:
Guayaquil
Country:
Ecuador
ORCID:
https://orcid.org/0000-0003-3255-3761