Formal and material res judicata in the executive trial: can the same procedure be attempted if exceptions specific to the title have been accepted?

Abstract

In the sphere of Ecuadorian Procedural Law, it is important to differentiate the effects of material res judicata with formal res judicata in executive trials.

This is due to the uncertainty that exists due to the impossibility of proposing actions again through executive means, as they were initially denied in a regulatory effort to protect the form and not the substance of an executive title. The absence of legislation in the event of proposing an ordinary trial subsequent to the executive similarly points to a possible impact on the right to due process. To carry out an adequate analysis of this and other scenarios that involve the institution of res judicata, it is essential to review the requirements for its configuration and differentiate the scope of formal and material res judicata, in contrast to both executive and ordinary judgments or of knowledge. The present investigation addresses these particularities and questions the current Ecuadorian regulations, in contrast to foreign legislation that has mitigated these drawbacks. Consequently, the qualitative methodology used benefits the state of the art by capturing the criteria of the highest Courts of Justice at the national level and contrasting them with procedural actions in practical cases.