La acción de nulidad de sentencia ejecutoriada contra el mandamiento de pago del procedimiento monitorio.

Abstract

The payment order procedure was incorporated into the Ecuadorian legal system with the entry into force of the General Organic Code of Processes (hereinafter COGEP) in May 2016, one year after its publication in Supplement 506 of the Official Registry. The purpose of this procedure is the collection of debts of a very small amount through a fast, agile and flexible procedure. This haste in the process can be seen reflected, for example, with the absence of a single hearing due to the lack of opposition by the defendant, because the last paragraph of article 358 of the COGEP indicates that, if the debtor does not appear to the process, the interlocutory order in which the claim was declared admissible and; at the same time, in which the payment of the debt was ordered, it will be firm and will have the effect of res judicata. However, at the moment in which the law grants this interlocutory order the effect of res judicata, that is, the characteristic of being unchallengeable and unmodifiable, the presentation of appeals or actions is prevented, even when an act that entails nullity is configured of the process, a situation that would leave the defendant clearly defenseless. In this sense, the purpose of this titling work is to analyze the nullity action of the executed sentence as a possible means of challenge applicable to the interlocutory order that remains firm, given the lack of appearance or opposition of the defendant in the payment order process.