Reformas legales al art. 243 del código orgánico integral penal, relacionado a la falta de afiliación al instituto Ecuatoriano de seguridad social por parte de una persona jurídica.

Art. 11, paragraph 2 of the Constitution of the Republic of Ecuador, establishes and ensures that the exercise of rights is governed by the principle of equality when he says that all people are equal and enjoy the same rights, duties and opportunities . In this context, the principle of equality remain subsumed within the rule of law. Therefore it is considered that the law is equal for everyone, because it has the characteristics of universality and generality. Art. 34 of the Constitution of the Republic of Ecuador, guarantees the right to social security, saying it is an inalienable right of all people, and will be paramount duty and responsibility of the State for compliance. Social security is governed by the principles of solidarity, obligation, universality, equity, efficiency, subsidiarity, adequacy, transparency and participation, for the care of individual and collective needs. By issuing the Organic Code Integral Criminal criminalizes, non-affiliation to the Ecuadorian Institute of Social Security workers as employees, and in Article 244 ibid provides that the or employer who do not enroll their workers to compulsory social insurance within thirty days from the first day of work, shall be punished with imprisonment of three to seven days, which in my humble opinion is extreme and inconsistent with the provisions of the Constitution, which guarantees the right to liberty, legal certainty and effective protection of all people. Let me clarify this analysis because in the development of my thesis show how the art. 243 COIP is contradictory to the principle of equality stipulated in the Constitution, since the article in question reads as follows: In the case of legal persons who fail to comply with the obligation to register one or more of its workers to the Ecuadorian Social Security Institute the intervention of the entity competent control for the time necessary to forewarn the rights of workers and shall be punished with a fine of three to five unified basic salaries of workers in general, for every unaffiliated employee will be imposed provided that these the respective value not paid within the period of forty-eight hours after being notified. In this regard and in order to protect the aforementioned rights and principles, I believe that Art. 243 of the Code Integral Criminal merits urgent legal reform, which is included more than the already prescitas sanctions for non-affiliation, imprisonment for the owner or legal representative or directly responsible for non-membership, it will contain equal terms with what has already been stated in art. 244 COIP, thereby ensuring that compliance with the approved by the people through referendum is the prison for people who do not comply with the affiliation of workers to IESS, and this amendment does not allow question in a discriminatory manner to the small worker deeming it one way, and the great impresario allowing different penalty for the same offense. The criminal penalty for representatives, or directly responsible by a legal person in the absence of affiliation to the Ecuadorian Institute of Social Security to their workers, compared to if punishable with deprivation of liberty for natural persons, subjecting to equal rights, responsibilities and opportunities, and according to Art. 76 of the Constitution of the Republic of Ecuador, ordered that the penalties are consistent with the principle of proportionality, ie there must be a consistent relationship between the degree of violation of a right and the severity of the penalty, can ensure legal certainty as required by Art. 82 of the Constitution, the rules must be prior, clear, public and apply to the competent authorities.

• Main Author: Grefa Aguinda, Juan Olmedo (author)
• Format: bachelorThesis
• Language: spa
• Published: 2017
• Online Access: http://dspace.unl.edu.ec/jspui/handle/123456789/19018