El procedimiento monitorio y el término para declarar su prescripción según reglas del COGEP.

Abstract

This research analyzes the legal uncertainty surrounding the limitation period applicable to the payment order proceeding (procedimiento monitorio) under Ecuadorian procedural law. The study examines the doctrine and legal framework of prescription as a procedural institution that limits the exercise of rights over time and ensures legal certainty for both creditor and debtor. The research identifies a regulatory gap: current procedural legislation does not expressly establish the limitation period for filing a payment order proceeding. This omission has led to conflicting interpretations among legal practitioners and judges. Some argue that the five-year term applicable to executive actions should apply, while others maintain that the ten-year ordinary limitation period established in civil law is appropriate. The study also explores the legal nature, characteristics, and purpose of the payment order proceeding, emphasizing its special, expedited, optional nature and its distinctive reversal of the burden of proof. Its main function is to create an enforceable title enabling the collection of due, liquid, and payable debts below a statutory monetary threshold. Doctrinal positions and judicial criteria regarding extinctive prescription are also examined. The research concludes that the absence of an explicit rule produces legal uncertainty and inconsistent judicial practice. Therefore, it proposes the incorporation of a specific provision in procedural legislation establishing a clear limitation period for payment order proceedings, with the aim of standardizing interpretation and strengthening legal certainty within the justice system.