The following paper firstly demonstrates the current reality of the phenomenon of consumption and how it has influenced society and, obviously, the law, above all because of the configuration of the capitalist system, which has as one of its pillars the exchange of goods, in exchange for a monetary consideration.
14 september 2020
Title: The protection of the collective rights of the consumer in Ecuador. Between the lack and the need for effective procedural protection.
Author: Francisco Chávez Ayala
The following paper firstly demonstrates the current reality of the phenomenon of consumption and how it has influenced society and, obviously, the law, above all because of the configuration of the capitalist system, which has as one of its pillars the exchange of goods, in exchange for a monetary consideration.
Likewise, the analysis, in a second stage, is spatially limited to Ecuadorian territory, and makes clear the need to regulate a collective process for the defence of the collective rights and interests of consumers. In order to do this, it is necessary to analyse, from a procedural and critical perspective, how the procedure for consumers to assert their rights is regulated in Ecuador, especially in the courts.
In addition, the paper shows how collective actions have been regulated in other legislations, especially in Spain, with special reference to Brazil and Colombia; this with the aim of clarifying how the nature of the collective process qualifies the principles of the process, and certain procedural institutions, especially the active legitimation and the effects of the sentence.
This becomes more relevant if the need for judicial protection for consumers is connected, which may or may not be effective, to a large extent, due to the existence or absence of a collective process that allows a large number of users to exercise their right of action jointly, although without necessarily appearing in court.
The development of the research work also covers both the understanding of the phenomenon of consumption, the aforementioned effective judicial protection, the opt-in and opt-out models of the collective process, as well as the supra-individual dimension of consumer rights, in the face of the lack of adequate procedural regulations to provide consumers with a more effective means of asserting their subjective rights in Ecuador.
In short, effective judicial protection for consumers in Ecuador can only materialise and fulfil the requirement of effectiveness if there is a collective procedure that is efficient in defending the rights of consumers and users. Thus, the opt-in model for a collective process is the most appropriate for a country like Ecuador, guaranteeing the principles of contradiction, effective judicial protection and due process; but an opt-out model, however, may be suitable for processes involving small amounts.
