La hipoteca dentro del proceso de ejecución como el medio para el cobro de obligaciones.

Abstract

The research presented has as its background the study of the mortgage, its historical appearance, main characteristics, its recognition in Ecuadorian substantive and procedural civil law; as well as its recognition in the field of Latin American international legislation. The analysis of the foreclosure process and the pertinent regulations on the mortgage action are also an important part of the issue addressed. The main objective of the work is to present a proposal to reform article 363 of the General Organic Code of Processes, in which the mortgage is included as a title of execution. The methodology used is qualitative, which has allowed the analysis of variables such as the norms, substantive and civil procedure, which contain the mortgage and the foreclosure process; the analysis of the jurisprudence on its nature, and the interviews carried out with the experts in civil matters regarding issues such as characteristics, legal process contemplated in the legislation, the protection of the rights of the parties. The results provide evidence that since the mortgage is not recognized within the foreclosure titles, the document lacks effectiveness and substantive provisions are not observed that allow guaranteeing the rights of the mortgagee. The need to reform article 363 of the COGEP is concluded with certainty, including an additional numeral that provides the mortgage as an execution title and thus establishes in the procedural legislation, the optimal procedural mechanism to guarantee the rights recognized in the mortgage contract.