La reparación del daño moral y la teoría del enriquecimiento sin causa.

Abstract

The reparation of moral damage, especially pure moral damage, since it was accepted has been an arduous task for the judges, because this type of damage affects extra-economic assets that are part of the individual's intimate sphere, without having repercussion some in the heritage field. However, despite its difficulty, it could not be repaired because the Constitution and the law protect these assets. The Civil Code establishes the reparation of the merely moral damages and that the quantification of the moral damage, is to the prudence of the judge, giving it total discretion. The judges at the time of determining the amount for moral damage are based on doctrine and jurisprudence, applying a variety of parameters, without uniformity, that is, there are no common and necessary parameters applicable to all cases. This lack of uniform parameters in the Ecuadorian legislation for the quantification of moral damage affects legal certainty and hinders the motivation in the sentences, an essential requirement so that the discretion given to the judge to determine the value of compensation for moral damage, does not become in arbitrariness and give way to excessive compensation generating the existence of institutions as repudiable as causeless enrichment and abuse of law. Therefore, this investigative work is based on trying to establish parameters for the judge to grant a more equitable and proportional compensation to the damage produced.