Análisis socio-jurídico de los apremios personales en materia de alimentos como garantía de derechos del niño Machala 2021

Abstract

This case study offers a socio-legal analysis of the application of personal constraints in matters of food, with a focus on guaranteeing the rights of the child, in the city of Machala. In this sense, the investigation starts from the constitutional reference issued in judgment No. 012-17-SIN-CC where it subscribes to the procedure and legal action in the application of the Personal Constraint in matters of food, which is in force and currently rests in Article 137 of the General Organic Code of Processes (COGEP). Within the analysis, two food judgments No. 07205-2015-04076 and No. 07205/2021/02551 are reviewed, a starting point for the investigative development, which evidenced legal gaps that affect the socio-legal field, recognizing the constitutional principles violated in both procedural parties, as well as effective mechanisms are proposed in matters of maintenance to exert pressure on the collection of unfulfilled alimony aimed at the protection of the guarantees of the child and adolescent; In the exposed cases, grounds were established with different parameters that allowed a greater appreciation of the conflicts that may arise in legal proceedings where personal enforcement is issued due to non-compliance with the payment of 2 or more pensions for reasons of maintenance, after the respective instances of the procedure, in such a way, legal problems were raised that motivated the analysis and development of this research work, these were: the socio-legal effects of the application of personal constraints in terms of food, violation of guarantees of the child's law in matters of food, legal gaps and constitutional principles in the current legal regulation of Personal Constraint that violate the rights of the obligee and the fed and the effective mechanisms within the legal system, in relation to personal constraints. The approach used in the was qualitative, whose type of documentary research allowed the structuring of a conceptual record within the theoretical foundation using analytical, synthetic, inductive, deductive, critical, reflective, exegetical and law methodology compared to legislations from Argentina and Colombia. To obtain contextual references, interviews were conducted with five legal professionals whose answers were perfectly argued and triangulated with the proposed objectives and the questions that guide the investigation, several operative points were determined, to which it is concluded that the legal gaps are based on the change in the legal text. of article 137 of the COGEP, in order to protect rights and constitutional guarantees that were being violated in situations of deprivation of liberty of the obligee, the substantial changes granted to the new reform are used as a mechanism to exert pressure on the payment of the obligations acquired with children and adolescents, even for it to be dictated, it goes through several instances. The results of the investigation determine that the reform of article 137 in its application to the collection of alimony gives recognition to the rights of both procedural parties, but that yes, there are delays within the due process that generate that the guarantees of the minor are affected , another important point of the finding of this study is related to the violation of the principle of procedural economy that integrates into the procedure the principles of concentration, speed and sanitation. All the contributions contained in this document denote the unnecessary extension of the instances and the delay in the resolutions, resulting in procedural delay affecting effective guardianship and in the transgression of the principle of the best interest of the child.