La compatibilidad entre la prueba para mejor resolver y el principio constitucional de contradicción de la prueba.

Abstract

This article analyzes the compatibility between the evidence for better resolution provided for in Article 168 of the Organic General Code of Processes and the constitutional principle of contradiction of evidence recognized in letter h) of numeral 7 of Article 76 of the Constitution of the Republic of Ecuador. The objective of the study is to determine whether the judicial power to order evidence for better resolution affects the guarantees of due process, particularly the free presentation and contradiction of evidence. The research was conducted under an approach that has a dogmatic-legal character based on the analysis of constitutional and procedural regulations, specialized doctrine, and relevant jurisprudence. The fundamental technique used was the systematic and constitutional interpretation of the normative provision we found. The results show that evidence for better resolution may place tension on the principle of contradiction whenever it implies altering the procedural balance or substituting the evidentiary initiative of the parties, but criteria are also found that allow the harmonization of both institutions within the framework of the constitutional State of rights and justice. It is argued that the compatibility between evidence for better resolution and the principle of contradiction depends on a strictly rights-protective application, which must have constitutional limits and must consider the equality of the parties in a trial and the right of defense.