El sistema procesal cautelar adoptado en el COGEP y propuesta de reforma a sus artículos 124-133.

Abstract

Precautionary protection is an autonomous form of effective judicial protection, which is materialized through precautionary measures, these are instruments that guarantee the effective execution of a sentence, preventing the danger of delaying the process from rendering it inoperative. The objective of this study was to carry out an analysis of the precautionary procedural system foreseen in the COGEP and to propose the reform of its articles 124-133. The methodology used were theoretical methods such as dogmatic, exegetical, legal-comparative and impact of constitutionalization; and empirical, such as the analysis of thesis and academic articles. It was determined that the COGEP regulates an absolutely typical system, where the judge can only apply the precautionary measures expressly contemplated in the law, limited to matters of credit and intellectual property, which is a violation of the right of effective judicial protection, since him will not be able to offer protection against the danger in the delay of the process to all the other rights that are not within the sphere of protection of this norm. Consequently, modern societies have included in their legal systems the unnamed precautionary measures, such as Argentina, Bolivia and Spain, which maintains a typical moderate system, so that this violation does not occur, since the judge can, in addition to applying the precautionary measures expressly regulated, decree nonexhaustive precautionary measures, when the first ones are not suitable to protect the rights of the petitioner. For these reasons, the reform proposal consists of a transition towards a typical moderate system.