El recurso de casación y la valoración de la prueba.

Abstract

Background: Within Ecuadorian legislation there is a contradiction between article 270 of the Código General de Procesos, which prohibits the evaluation of evidence in the cassation appeal, and article 268 of the Código General de Procesos. Objective: The objective of this work is clarify if in the appeal we can assess the evidence and at what procedural moment it is allowed. Methodology: The methodology carried out is a legal essay in which an investigation will be developed with the purpose of solving the legal problem posed, which will have a descriptive and explanatory scope. Results: The result reached within this work is that the evaluation of the evidence only proceeds when the fourth cause of article 268 of the Código General de Procesos is invoked, this in relation to article 44 of the Organic Law Reformatory of the Código General de Procesos and opinion 002-19-DOP. Conclusion: It can be indicated that allowing the evaluation of the evidence in the appeal may be necessary to correct errors or arbitrariness committed in previous instances. If it is demonstrated that the evidentiary assessment in the lower court was unreasonable or contrary to logical or experiential principles, the court of cassation could intervene to guarantee a fair trial and avoid unfair decisions based on an erroneous assessment of the evidence, provided that when the fourth cause of article 268 of the Código General de Procesos is invoked.