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Administrative Procedure Vs



Administrative Procedure Administrative Procedure is the set of procedural steps are already part of the administration or administered, developed within a procedure, intended to produce legal effects, usually embodied by an administrative act.

From a doctrinal view, the structure of the administrative procedure is shown as a coordinated and rational integration of process-recepticios primarily aimed at an end-unit (make a final decision) and originated by various persons involved in the process [1]

administration being forced to procedimentalizar all its actions, is immersed in a variety of procedures. Thus there are many designs of administrative procedures followed by the various levels of government.

quick exposure of the various administrative procedures that can be found, is as follows:

1. Automatic approval procedures d appraisal.
2. Inter-administrative procedures, external and regulatory requirements.
Inter-administrative procedures .- Also called intraadministrativo are those developed within the scope of the administration itself intended to organize or operate activities or services, establishing a legal relationship between state bodies and agencies and creating an act of internal administration. In

internal acts of public bodies subject are always generated and decisions are administrative acts which meet principles of competition, collaboration and hierarchy. In this respect the general rules do not apply because it is regulated to a public-service user relationship. Examples of internal measures, the budget process, the consultative procedures, etc.

external procedures are those developed .- to the outside of the public administration, legal relationship with a particular issue for purposes of administrative acts.

There is confusion between internal and external events when a public entity who calls for action by a public entity, as given in the case of a license application for construction of a public body.


3. Office procedures and ex parte procedures.
Unleashing procedure is one of the major classifications of administrative law proceedings, it does not remember the service and the public can be encouraged not only by the administration itself but also participatory and democratic way to the citizen.

office administrative procedures, are those sponsored by an individual decision of the competent public official, serving his official duty inherent in the civil service in order to safeguard the public interest.

administrative procedures hand, are initiated at the request of an individual legitimately interested in promoting a statement of intent to the public. The potential of managed to generate administrative procedures are chaired by the right of petition and its various components, such as: i. The petition subjective (Actions and individual petitions, section 107 of the Law 27444), ii. The request for interest (requests diffuse interest, popular or collective), iii. The faculty of administrative conflict (Art. 109), iv. The request for information (Article 110), v. Query formulation (Section 111), vi. Gratia requests (such as pension claims of grace, pardon, etc.. Art. 112), and vii. Compliance with legal duties (tax returns)

4. Mandatory and voluntary procedures.
The first are the general administrative procedures which are necessary for both you and the administration managed to effect to produce a decision of the public body.

On the other hand, the procedure volunteers, are those in which development is optional for the parties, such as dispute resolution procedures.

5. Formalized procedures and not formalized.
formalized procedures, refer to those whose sequence procedimiental regimented by law. For example, the procurement process.

procedures .- Here there is no formalized procedures required that the regulations do not set a specific channel

6. The independent procedures related and complex.
autonomous procedures .- Are those that bear no connection to earlier proceedings or later.

related procedures .- is those who keep some kind of relationship with another procedure without losing their own identity. For example, lasmedidas precautionary or review procedures.

.- Complex procedures and procedures are also known processes, in which they operate administrative procedures, which require their interaction in order to achieve a specific public purpose. Example, operating license application (requires civil defense certificate and certificate of zoning).




Sequence Procedure

1. Procedural acts of the Administration and Managed
At the beginning of an administrative proceeding, either ex officio or upon request, both the Administration and the administrator performs a series of acts within the procedure, they aim to obtain a correct decision administration, this is to act or to determine the veracity of the allegations raised by the parties.

1.1. Procedural Acts Administration .- The Administration has a duty pulse generator procedure ex officio, in accordance with Clause 1.3 of Article IV of the introduction of Law 27444, which includes the principle of own motion under which authorities should lead and drive of its own motion and ordered a procedure or practice of acts that may be useful for clarifying and resolving issues necessary, and consequently the administrative authority may, among many others act the following acts procedimentales_
- Notification (Art. 162)
- Reports (172)
- Clarifications or corrections (201)
- Requirements of information or documents (177)
- Final resolutions


1.2. Procedural acts of Managed .- Regardless of the action or impulse that is bound office administration, are also given the authority to raise various procedural acts, also seeking to determine the veracity of the allegations in the proceedings, these acts are mostly identified with the comfort letter, in which it can initiate the procedure, arguing allegations provide evidence, reports, complaints, incidents start, challenging decisions, etc.

2. The Administrative Writing: Requirements, design and remediation.
The written request or requests are grounded orders as those given in the exercise of their constitutional right to a request made to any of their authorities in order to satisfy their interests.
While there is no express provision that establishes the escritoriedad of orders is obvious given its demand, which does not happen with the requirement of any further formality, unless the rule is established for the special procedures, ie dimension , font, etc, which is a free will of the governed, even the courts have barred the requirement of forms or in any case provide that the issue must be free is the purpose of depriving the right of petition under administration and the law on that basis makes it a requirement of any comfort letter follows:
1. Full names, address, and National Identity Alien card or password, and where appropriate, as representative and the person whom he represents.
2. The concrete expression of the order, the factual basis to support it and, where possible, the rule of law.
3. Place, date, signature or fingerprint, not knowing where to sign or be prevented.
4. The indication of the organ, authority or body which is directed, meaning that, where possible, the authority closest to the user level, according to the hierarchy, with power to hear and decide.
5. The address where you want to receive notifications from the procedure, if different to physical address above under paragraph 1. This observation of address has effect from its display and is presumed subsisting, while not expressly communicated its change.
6. The list of accompanying documents and exhibits, as indicated in TUPA.
7. The identification of the record of the subject matter of proceedings already initiated.

.- Correction of the Writings
now where the letter does not contain any of the requirements set, the receiver unit itself, records of this act on the request remains in the administration and in the copy managed remains in power, setting a deadline of two days to cure such default, otherwise shall be deemed not filed and will be available if any refund of duty paid.
also if after the letter accepted by the receiving unit, an entity may, under Article 132 paragraph 4) of Law 27444, grant a period of 10 days to remedy any gaps identified by the unit resolucitiva or decision,

3. Home Administrative Procedure

the initiative on the part of office by the administration.

[1] MORON URBINA, Juan Carlos. "Commentary on the General Administrative Procedure Act." Ed Law Gazette. Lima 2006 p. 208

Vs

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adverse possession action to set aside

action claiming adverse possession of Dominica from the Court Casatoria.
By: Andrew Chang Guillermo Hernández (*)

I. Introduction.
Resolution relapse in case No. 2318-2005-ST, discussed developing two themes in itself important: The origin of the action for restitution against those who have means usucapion and secondly the time the property is acquired by prescription , obviously the resolution has to comment on procedural points as you can see the vote of Mr. Carrión Supreme Vocal Lugo, however it is clear that we seek, in greater detail the substantive development of institutions that includes the resolution under review.

is the remedy of appeal filed by the Association and residents of Buenos Aires Private against the decision issued by the Civil Chamber of Chimbote to the Superior Court of Santa, who confirmed the appeal, declaring the appeal, arguing misinterpretation of a rule of substantive law, particularly Article 927 of the Civil Code, also alleged misinterpretation of Article 912 of the Civil Code. On which the Supreme Court decides to marry the appeal filed by the Residents Association of Private Buenos Aires, argued that it is necessary to acquire the property through adverse possession, the court statement, reasoned argument found in the eighth and ninth considerándoos Resolution of yore.


believe that to determine what is right or not the decision of the Court Casatoria is whether adverse possession is acquired and produces its effects by the mere passage of time and meeting other conditions required by law, because If so who would have no claim to demand right to do so, because the property no longer hold, it would be much less any right to demand possession.

II. Concept and scope of the action for repossession.

The judge's decision quem for confirming the court ruling, arguing that the action claiming it as the applicant rely listed as owner of the property whose ownership is claimed and that no transfer or sale to third parties. This clearly deduce that the Superior Court understands that the owner has occupied the property in an illegal way.

understood the same resolution it is possible that the same process renvindicatorio, if such a conflict of interest, you can also determine the best right to the property. In this regard, it is important to determine who understands our Civil Code claim and what their scope. Our

Civil Code does not expressly define what is the action for repossession, this work was left to the exclusivity doctrine. So we have to Planiol and Ripert, ² is the person who brings an action to claim the restitution of (anything) which is intended to be owner. It is therefore based on the existence of property rights and aims to obtain possession. " In turn Borda [1] argues that ² is the action that can be exercised which has the right to own something (good) for claim of who actually owns "

In this sense to understand fully the reivindación is appropriate to understand that the property right is between property rights, which gives a full dominion over the thing, of submitting our will in all respects and derive all the profit that can deliver on any of them " [2] and the claim is an action that only the owner is responsible possessor not trying to regain possession of the property. Jorge Avendaño, advocacy, is a faculty possessed by a person over an object for the exclusive right to property that has, and therefore it is real action that excellence and dominion acquires the ability to elucidate other aspects revolve around property rights. Has understood the law national point ² The action claiming is the real action par excellence, from that by this action may be elucidated contest property rights, in this sense when two people claim ownership over the same property, to determine who has superior right, is covered by rules on concurrence of creditors, priority registration, enforceability of property rights and public faith registration " [3]

doctrinally attempt to define it so we claim what was said by Dr. Lucrecia Maisch Von Humboldt, who ² replevin action is real action par excellence, because it protects the real law more complex and comprehensive is the domain " [4]

As to the comments we can claim to understand it as the embodiment of persecutoriedad real property law and as such a doctrine means that not only lets you operate in towards the possession of the property but also the very recognition of the property when two or more people claim. Luis Diez-Picazo, on the statement tells us ² The power of persecution is a feature of the property right and is that the real right will have the option legally protected (Drot de suite) to pursue or go get the thing where you are and whoever the person stop or has in his hands " [5] therefore expressed by the English teacher reinforces the idea that the scope of action includes not only vindicating regain possession but also the protection of other powers inherent to ownership. Likewise, we again say Diez-Picazo ² The owner may claim that their right to property is recognized by a declaratory action against anyone who is unaware and may also seek restitution of the thing in front of who improperly holds " [6 ]

We understand that this double perspective of the action claiming it follows the identification requirement Owner clear, however its scope does not include the recognition we a better ownership, a move that deserves its own way, in this sense in an eventual repossession process the parties to protect its right in its title as owner of the property, the other party may challenge the title, in which case the judge is authorized under the regulations so that you may recognize the validity and effectiveness of authoritative title to claim, however did not declare the best right to property, which as mentioned is one way own, and has already said the country's Supreme Court, by decision in Appeal No. 619-95, Ica.



III. Acquisition property rights through adverse possession: Requirements and time efficiency.

A first account we have says that the adverse possession is understood as a way to acquire ownership of a real right by possession under certain conditions prolonged and of a good (article 950 and 1040 CC)

The Mazeaud mean by adverse possession that it leads to acquiring the rights and concerns but no real rights, no legal provision on the rights adquisitva personal or credit " [7] . These same authors add "as the acquisition of the possessor of a thing of ownership or other real rights over that thing, the effect prolonged possession for some time " [8]

In our Civil Code regulates the adverse possession in Articles 950 to 953, rules that allow us to point out that our coders have understood that institution as the owner does possession of movable or immovable, in our case, by the mere passage of time fixed by law in effect when analyzing the articles 950 and 952 of the civil standard is not required appreciate that judicial recognition to the acquisition of property by continued ownership of property.

of the rules above the national doctrine draws the following requirements for the admissibility of Adverse Possession: i. Continuous possession, peaceful, public, ii, which is held as owner, and iii. That is held by just title and in good faith.

appreciate in this way that does not require a judicial declaration to declare the acquisition of property by adverse possession. Supports this position clearly in Article 952 of the Civil Code of 1984, as has ² when purchasing a prescription may well be to court to declare that he owns ... "(emphasis added). In this sense we can say that our coders have understood that the benefit of the acquisition of the prescription may alternatively request a declaration judiciary, which is limited to finding that the facts that make up the factual scenarios of the standard have been busy and also serve as a title for the registration of the new owner and to remove the seat for the previous owner in the appropriate register. Although not uniformly our Supreme Court has ruled that ² The usurpation is automatic, and the law does not require you to acquire this right has previously obtained a favorable ruling to declare it so in a process of limitation adquisisitiva domain since Article 952 of the Substantive, it is clear in stating that he acquires a prescription can sue to be declared owner, but of course this, the full effect erga omnes result from the adverse possession only recognized by court decision and register for public records under the final stop of Article " [9]

We ended this part saying that the judicial to declare the acquisition of property by prescription, while enabling for registration of property records and thereby gain all the benefits that this implies, if not performed does not detract from the law and obtained by the possessor, then remember that about our system of property registration in the records is merely declaratory and not constitutive law the same. In this sense in the sentence under analysis is successful the Court's position as Casatoria provides that, in the same process demanding whereas the arguments being discussed by the parties, this is the persistence of the complainant's right to recover the asset and another verification of the acquisition of the property through usucación with which obviously the right of the first would lack legal protection.




IV. The logic of the decision said: There is no claim if the owner does not exercise
Indeed, recall that the appeal is based on an incorrect interpretation of Articles 912 and 927. So we will focus primarily on Article 927 of the Civil Code, which we believe has been the backbone of nerve Court ruling for wedding resource. This rule states ² replevin action is inalienable. Is not admissible against one who acquired the property by prescription. "

Thus we suggest that the last part of the abovementioned article in wanting to clarify the origin of the action for repossession creates confusion for some. In effect the true meaning of the rule in the second part of Article 927 is consistent with Article 952 of the Peruvian Civil Code is thus not necessary to claim against any person who acquired the property (which via claimed possession claim) by adverse possession, because if the latter happens reivindcación accusing the owner is no longer and it is therefore logical than the standing to sue the action.

V. Concluding remarks.
In resolution that says the Supreme Court rules on an issue that has received dissimilar other faults, which is whether to purchase the property through adverse possession requires a court order, this time it does so fitting, because recognizes that the acquisition of the property through adverse possession is one that operates as full compliance with the conditions required by law and by the only during the time required to do so. Although we can not forget that our Supreme Court there are conflicting decisions on this issue.

It is clear from reading the resolution under consideration, was vital in the opinion of the Judge of merit, determine when it is acquired the property through adverse possession, because if it is understood that this requires a prior judicial decision We believe the decision of the Review Board had not been married, however the merit in our legal system it is not necessary, the Supreme Court remanded the case to the lower court in order to confirm the existence of the conditions required to acquire the property via Adverse Possession and as a result of the latter issue the appropriate decision in the grievance process concerned ..


* Professor of the Universidad Privada San Juan Bautista - Affiliate Ica, Post-Gado by the University of Castilla - La Mancha (Toledo - Spain), Consultant to the Regional Office of Energy and Mines of Ica
[1] BORDA , Guillermo. ² Treaty Rights in rem ", T-III. Perrot ed. 3rd edition. Buenos Aires
[2] ALBALADEJO, Manuel. Civil Law I ² "Librería Bosch, 3rd Ed Barcelona -1977. T-1, p.
243-245 [3] CAS. No. 4221-2001-AREQUIPA
[4] Maisch VON HUMBOLDT, Lucrecia. ² Property Law "1st Ed. Typography Sesator publishing company. Lima 1980
[5] TEN-PICAZO, Luis. ² Basic civil law heritage. " Editorial Civitas the 4th Ed. Madrid, 1995. T-III, p.
817 [6] Idem.
[7] In: AVENDAÑO VALDEZ, Jorge. "Real Rights." Editorial PUCP. Lima1989 the 2nd Ed, p. 202.
[8] Idem.
[9] Cas. No. 2792-2002-Lima

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teaching the course material

The effectiveness of administrative acts.

I. Introduction.
Efficiency is the ability possessed by legal acts to produce all kinds of legal documents, giving birth, dying, modifying or strengthening legal situations in the run.

Initially we taught in Article 192 of Law 27444, the typical consequence of any official act is the enforceability and enforceability of the act [1] also gives rise to side effects such as contiguous or authorization to practice , any activity in case of licensing, the existence of obligations in the run (acts of charge) or creation of rights in the run (acts favorable).

acts issued by the Public Administration has the legal effects, these acts are envestida a presumption of validity, giving it effective immediately, creating the recipient of such an obligation to fulfill, all independent of its intrinsic validity, which can be questioned in the ways that the same procedural administrative system contains.

When an act is effective, it acquires the legal power to produce effects to your recipient. Therefore, for an act to develop normally the time and we must differentiate two conditions: the validity and effectiveness of the act.

First time on the validity appreciate that our law provides a presumption validity of any act that confers validity issued rebuttable, operating in both showing and not outright declare the invalidity of the act. Thus, Article 9 of the Act says that the act is considered valid as long as its alleged invalidity is declared by administrative or judicial authority accordingly.

therefore can present scenarios in which an administrative act is perfectly legal (it contains all the requirements for its validity) but ineffective in failing to meet the requirements to be opposed to its destination (notification). As well as acts that may have become effective being disabled (actual situations in which you perform administrative acts be invalid, illegal closure of commercial premises)


II. Conditions for the effectiveness of an administrative act.

For an act to be effective as we have said regularly required to comply with the requirements of validity that the law requires, but also and mainly requires that such action is notified to the interested parties or on whom descends the legal effects contained in that act. Indeed

occurred as an act even though it complies with legal requirements provided for no more than a decision of the Authority held in its intimacy, irrelevant for the outside, and devoid of legal force to produce legal effects in relation to managed third, and even to other administrative authorities. While it is an administrative act under such circumstances the act was not legally binding on any subject of law, except himself, as he creates the duty to report them. It is a hidden administrative act. [2]

An administrative act to be effective must be notified or published, however it would still be valid. The target, purpose, integration of specific administrative act from the moment that the person to whom it may concern becomes aware of its existence. It is then when the action becomes effective, not before or after.

Also we can see that an administrative act can present three times before his execution validly completed:
to-date production of the act (in which the term begins to serve it, art. 24)
b-Date of notification of the act (art. 25)
c-Effective Date the act (art. 16.1)


III. Classes or types of efficiencies.

- Regular Effectiveness .- It is that which takes place under the normal rules of efficiency, ie with effects is legal since the successful notification of the act. For example if notified a resolution ordering a shutdown of a local administrator, this decision may be enforced as of the date of its notification (art. 25 inc. 1 of Law 27,444)

- Effectiveness advance .- This type of efficiency involves two possibilities, the first gives effect to an administrative act before its notification, that is to be effective, provided benefits to managed and does not damage rights of third parties acquired in good faith. Also section 17 of the Act provides for the possibility of giving effect to an act up even before dispatch, however like the previous case provided favors to run and do not prejudice the rights acquired in good faith that existed at the time that is intended roll back the act. For example, in the case of the last earthquake, many people have built without the respective municipal authority (Building permit), however the municipality may have obtained the licenses are effective means of adjustment before its issuance in order to avoid further fines on the run.

- Effectiveness deferred or delayed .- One of the possibilities provided for in Law 27444, but existing national administrative law is deferred or delayed effectiveness of the administrative act, which does not govern the enforceability successive act of transmission, but the effectiveness is delayed with respect to the time of its completion. When this happens, then there will be an interim period of time between notification and perfection to the acquisition of its effectiveness, during which the act is virtually dependent. For example the designation of an official is subject to the inauguration of charge by the designated person. (Art. 2 of the Act)


Administrative Notification.

Notification is an act of transmission or communication, are acts that aim to transfer knowledge of a procedural act who must know or must be made to know for the orderly procedure integrating all views at the same determinants or determinable in safeguarding constitutional or statutory rights apply.

Article 18 of Law told us that "The notice the act is practiced by trade and good service processing will be the responsibility of the entity that issued "

COSCOLLUELA MONTANER [3] said that the notifications, or if publication of administrative acts are a prerequisite for effective administrative actions affecting the rights and interests of citizens. Notification is a new instrument which becomes known to the content of other previously issued concerning him.

Notification is configured as a guarantee of the managed ... and therefore should be understood that the procedure ends when the resolution was validly served. Position held by some national administrative courts [4]


People who should be responsible for administrative reporting.

Item 2 of Article 18 of Law 27444, states that "personal service may be effected through the institution itself, by courier services, specifically hired for this purpose and in case of remote areas, provision may be practiced by through the prefects, sub-prefects and junior "pride therefore that the notifications can be made through the workers themselves referring body or through a company hired specifically for this purpose, this is what servis called reporting.

In the latter case, the public body must instruct their notifications, a specialist in this area to allow adequate notice of his action, this modality has become the most usual although some banks themselves are still responsible to notify their own actions.

Waiver of notice.

Article 19 of the Act provides two exceptions to the duty to notify any official act:

1. In any event that has been issued in his presence, provided there is certificate stating the procedural step of managed care.
For example, this course will occur when it is evident that the appellant has, by virtue of access to the file, knowledge of the charge put to him, even if not formally formulate them.
2. It also is not required to report if they would be aware of the act administered by their respective direct and spontaneous access to the file, obtaining your copy, noting the situation on the record.
For example, the indication of a new test date for action, issued during a testimonial taken with respect to the attendees.

act in both cases on file proof that the run has taken knowledge of the acts had been committed.



Classes or methods of notification.

As we have already said the notification given to act effectively, is what gives virtuality to be executed, our law develops different kinds of service among which are:

to-managed personal service on the interested or affected by the act at his home.
b-By telegram, registered mail, fax, email, or any other means to reliably check your receipt and the recipient, provided that the use of any of these means have been specifically requested by the citizen.
c-For publication in the Official Gazette and in one of the major newspapers in the country, unless the law differently.

Personal service must observe the provisions of Article 21 of the Act, a rule that contains two scenarios: one in case the given point home, in which case the notice must be in that and with the express acknowledgment of receipt either by the addressee or the person with whom you understand. If there is refusal of receipt shall be recorded in the act, and second if the manager does not enter your home, the authority must be made at the last address that dispute has been given to the entity or exhaust their search through the means that are within its scope, drawing on sources information from local institutions. (Eg RENIEC SUNAT, etc)

Regarding notification via any electronic medium it is only valid as long as authorized by himself or given this some form of recognition or validation of the measure notified. Regarding

notification via publication, operates only in exceptional cases and provided has not been able to notify staff via the act, for which previously had to investigate the home of the administered either in the database itself administration or any other source. This book should be in charge of daily local legal publications, in our case the newspaper Voice of Ica and the review and particularly for the provinces of Pisco and Chincha, the newspaper La Verdad del Pueblo.

also publishes the act of provisions of general or administrative acts of interest to any number of managed not appeared at the proceedings and no known address (eg public tenders, calls ...)


Validity of notices
Article 25 of the Act states that service shall have effect subject to the following rules:
1. Personal notifications: on which they were made.
2. The courses taken by certified mail, office, email and the like: on the record have been received.
3. Notifications publications: from the day of the last publication in the Official Journal.
4. When an express legislative provision, an administrative act must be both personally notified managed and published to protect rights or interests of third parties fails to appear or indeterminate, the act shall take effect from the last notification.


It should be noted also that any notification shall be made not later than within five (5) days from the issuance of the act to be reported, and shall contain The full text of the administrative act as well as other provisions of Article 24 of Law 27444. Sanitation

defective notices. Notification defective

default of any of its content requirements, laws take effect from the date the receipt expressly concerned, if there is evidence to the contrary.

shall also be notified when administered well after the completion of procedural steps to suspect the person concerned was reasonably timely knowledge of the content or scope of the resolution, or case of any action as appropriate. Not considered such request notification by the citizen, to which is communicated to a decision of the authority.










[1] MORON URBINA, Juan Carlos. "Commentaries on the Law 27444." Ed Law Gazette. p.
169 [2] Idem. p.
170 [3] Coscolleula Montaner, Luis. "Manual of Administrative Law." Civitas - Madrid 2006. p.
397 [4] Resolution 2, exp. 00003-2002/TRASU/GUS-PAS

dated 17/09/2003

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Administrative Law Course for Teaching Administrative Law

The enforcement procedure.


I. Introduction.

This procedure applies to the implementation phase of the acts or decisions taken by the Public Administration that is our legal system, influenced by continental European law, as distinguished from other individuals or corporations declare their rights and impose obligations towards you herself and others [1] .

The power to implement its own resolutions is one of the clearest expressions of administrative autonomy with which the legal system provides to the Public Administration for the preservation of public order.

other hand, parallel to the model adopted by our legislators, there are systems execution of administrative acts that require prior authorization of the judiciary, such as Anglo-Saxon system, through the improper enforcement procedure, through a procedure called "injuntion" Roberto slept

states that Once perfected the administrative act, produces all its effects, compliance could not be deferred, this effect is summarized in one word "executive" or what is the same effectiveness. Linked with that term, the Italian doctrine coined the word "enforceability" attempted to synthesize the possibility that the administration run by itself its Acts, coming some measures of coercion to do so. Brewer Carias said "(...) then say that an administrative act is enforceable so much as to say that is binding and must be fulfilled "

II. Executive Procedure administrative decisions.
Our Law 27444 states in its Article 192 that: "The character will execute administrative actions, unless otherwise expressly legal, court or subject to any condition or term under law." About

legal precept that we must first emphasize an error in wording, it is noted that administrative actions will have character "Executed" when the right thing should have said "enforceable": but beyond that slip, their paper refers to administrative acts, as are firm, may be executed by the entity.

This part is important to separate the terms "executive" and "enforceability."

enforceability .- It is understood as the obligation, the right to enforcement and compliance with the duty to act after its notification.

The requirement is an inescapable feature of the administrative act, which ensures the exclusive disposal authority on the effectiveness of the act as guarantee that protects the interests of management. All regular administrative act has the property of being essentially executive, is an inseparable generic quality of the act, whether running or not, which may depend on the decision already taken by the same administration, either by the suspension ordered by court or other circumstances. Thus the executive is synonymous with effectiveness of the act.

enforceability .- The indivisible is an element of power. It is a fundamental part of the administrative activity, which manifests itself in certain categories or classes of acts and not others, the latter depending on the object and purpose of the administrative act.

The enforceability appears in the administrative act when it has fulfilled all of their training process and the legal system gives, in addition to mandatory compliance, the possibility of early completion, although it may happen that begins after the completion of condition or term as a modal element of the act.

is the administration's own powers, but not exclusively exercise and is based legally in the law (art. 192 et seq of the Law 27444). So the administration is granted by the law explicitly or implicitly, who gives the coercive means to run by itself or enforce managed by third parties required or administrative action in question.

execution privilege appears as a true public prerogative as a concrete manifestation of the principle of administrative autonomy. The administration appears invested by the legal order of the powers to declare itself, unilaterally, its rights and proceed to run for office and on their own without the intervention of the courts.

Finally we add that the enforceability may be regarded as a special manifestation of the effectiveness of administrative actions, as these impose duties or restrictions on the run, which can be made even against their will, by means of administrative bodies.

III. The enforcement of administrative acts.
Obviously this mechanism operates when administered not voluntarily comply with the acts adopted by the administration and therefore sees the need to implement them forcefully.

also run this exercise is not done arbitrarily but the entity must follow certain legal procedures d and Article 194 of Law 27444 regulates the requirements or needs you to the source of the enforcement of an act:
1. Question of an obligation to give, do or not do, set for the entity. The rule entails
the requirement of an obligation in any conventional methods, ie it is an obligation to give, to do or not do. The administration may be a creditor of an obligation to give when the manager is obliged to give a certain amount of product soles of an administrative fine, is the owner of an obligation to do, when the manager is obliged to perform any material act for it, such as a wall collapse, the management is deserving of an obligation not to do, when imposing a ban vetoes given attitude or act to such as the prohibition of movement through a particular path.


2. That benefit is determined in writing in a clear and full.
This obligation means that the administration should make available to the managed debt or obligation required by an act writing test, which serves as support for the enforceability of the obligation. For example, the obligation created by an administrative fine imposed, should be contained in a written administrative act (decision of sanction) that contain the offense and the amount of the fine, the same as in the case of non compliance, serves of support for its implementation.

3. That such an obligation arising from the exercise of an allocation rule of the entity or comes from a sustained public law relationship with the entity.
This requirement is inherent to the same authority or competence of the entity implementing the act. Means that the act must arise from the exercise enforceability of the responsibility of the entity, ie enforceable if the act has to do with a fine set connected to a municipal operating permit for a commercial establishment, who performs the act must be that entity that has the jurisdiction from which it derives the act to be performed in this case lies with the municipalities.


4. That it would take to run the spontaneous fulfillment of the provision, failing to initiate coercive means specifically applicable.
This requirement relates to the first of those mentioned, it also implies the existence of an enforceable pre-procedure, ie the administration must order the required voluntary compliance with the obligation prior to its implementation through compulsory process. That procedure is called after regular collection.

5. They are not administrative act by the Constitution or the law require the intervention of the judiciary for implementation
Here the rule requires that if management can execute an act is not necessary the intervention of the judiciary, for in those acts requires it must obtain prior authorization concerned. For example, government has the power to executive, ordered the embargo in the form of deposit of a property, however not empowered to make the unlocking of the property, and that such authorization is only power the court

IV . The vicissitudes of the implementation of the administrative act.
At this point we refer to certain circumstances in which the administrative act loses enforceability, ie loses its ability to be executed, such cases are defined in the Act artículo193 27444.

This article brings together the vicissitudes through which the normal can be altered effectiveness of an administrative act, limiting consequently the legal effects provided for by law for such act. Morón Urbina, says that cases of failure of normal management are of two types: conditions that suspend the legal effects of acts and situations that involve a real definitive loss of the enforcement of the act, rule of law.

Thus we have the aforementioned Article 193 states:
"Except as otherwise expressly rule, administrative actions become less effective and enforceable in the following cases:
1 - For temporary suspension according to law.
2 - When five years after becoming final, the administration has not acts that competent for execution.
3 - When solving the condition they were subjects according to law.
4 - When the managed object at the beginning of the implementation of the administrative act the loss of its enforceability, the issue is resolved unappealable in administrative mode for the next higher authority, if any, prior legal report on the matter. "

Analyzing the reasons cited above lines expressing appreciate the presence of suspension and final loss of the enforcement of the act. Scenario 1 and 4 cover an act of suspension while the assumptions contained in paragraphs 2 and 3, permanent loss of the enforcement of the act.
Obviously
suspension and final loss are very different concepts in content and effects. The suspension means a suspension, the effects of the act, caused by administrative or judicial. Appreciating that the incident once resolved, the act can recover their quality of execution. On the other hand pulling the final loss, it is indeed the final extinction of the capacity that had the act to be executed and hence it is impossible, after such loss, regain its enforcement capability.

V. Methods or means of enforcement.
It makes sense that if management is vested with the ability to execute its own actions must have with tools that permit therefore appreciate that Article 196 of Law 27444, contains the means by which a public entity to enforce an administrative necessity, as the citizen is reluctant to do so voluntarily.

fact that standard states that management can execute its actions through the following means:

a) Implementation of compulsion.
b) Implementation subsidiary.
c) Penalty payment.
d) compulsion on people.

From the above the issue of coercive enforcement of greater importance, it is one that is used more frequently and the major issues involved in implementation and enforcement.

But before looking more coercive execution stopped, it is appropriate to comment referred to the other options offered by the Act:

- Implementation subsidiary .- There shall be a subsidiary execution in the case of acts that not be very personal to be made by person other than the bound. For example the demolition of a wall, the removal of a road vehicle.

- Penalty payment .- When so authorized by law, and the form and amount specified by the latter entity can, for the execution of certain acts, impose penalty payments, repeated periods sufficient to fulfill the orders.

The penalty or punishment executive, as he is known in German law, is an indirect or improper performance, by which the authority carries out an economic compulsion to run to force the completion of a behavior. For example, can be used against the dereliction of duty highly personal, where there should be compulsion on individuals or proceeding it, the administration considers it appropriate, such as tax obligations and government control.

The penalty is not a punishment, or imposed in the exercise of administrative powers to impose penalties for performance that is not incompatible with the sanction or applicable rule of non bis in idem. Its implementation is fully compatible with the application of sanctions to the responsible, such as administrative fines, cancellation of permits, etc.

- compulsion on people .- says this regard Article 200 of the Law 27444: "The administrative acts impose a very personal obligation not to do or support, may be executed by compulsion on people in cases where the law expressly authorizes it, and always respecting their dignity and rights recognized in the Constitution. " For example when the government compels a managed make specific behavior, such as not to make noises at a certain time in the morning or the case of the expulsion of aliens for violating certain rules.

VI. Coercive enforcement proceedings.
This method of enforcing administrative acts not only account for its development and actual implementation, the rules contained in Law 27444, but, due to the uniqueness of the subject special provisions, particularly the 26,979-Law Procedure Act measures of compulsion, and the regulations approved by DS 036-2001-EF, in addition to amending the law made 26979 through 28165 law.

Indeed a reading of Article 197 that addresses the issue in Law 27444, we see that in terms of its application, refers to special legislation, this law is to hang 26979, e effect of Article 1 of that rule also states that

A key feature of this medium is that operates when the obligation is administered those pecuniary obligations, to do or not arising in relation to public law administered by the natural route for the coercive collection. Through it, the administration is entitled to detract movable and immovable property or rights of property sufficient to satisfy the debt.

law enforcement has established that equity by the State intended to collect liquid credits generated in any public law relationship should follow a predictable and regulated administrative procedure called "coercive enforcement proceedings."

The legal framework governing coercive collection has differentiated the two administrative procedures according to the nature of the receivable debt. If it is a tax liability (as such taxes, penalties, interest and penalties) have the procedure under the Tax Code itself, with its own procedural structure. Meanwhile, when the requirement is of debts arising in any other public law relationship (no debt commercial or civil) for us to follow the specific procedure in Coercive Enforcement Act. Ie 26979 law rule was amended by Law 28165.

All coercive enforcement proceeding whether in taxation or other public law relationship, requires certain formalities and procedures in search of a respect for rights managed and ensure that prior to the execution or enforcement of an act that vested all the necessary guarantees.

Particularly in the area of \u200b\u200benforcement proceedings initiated by other than SUNAT, we have that it is regulated by Law 26979, a provision which states in Article 1 "This law establishes the legal framework for implementing acts exercising coercive institutions of the national government under the powers conferred by the laws of their specific areas. It also provides the legal framework which guarantees required the development of a compulsory process because "

also states that such standards is the Executor Coercive officer is the exercise of coercive acts of the entity for the obligations and therefore responsible for the development of coercive enforcement proceedings (Article 2 and 3 of Law 26 979). This rule also establishes the procedural formalities, Article 9 contain the grounds that an obligation is enforceable. Meanwhile

reading of Articles 14 and 17 of Law 26979 is concluded that the coercive executor for the purpose of giving started the proceeding will have to issue a notification to this end with a period of seven days to run for complying with the implementation of the obligation period after which the entity have taken place without compliance with the obligation, the entity may issue any provisional measure under Article 33 of the Act. This article refers to the forms of attachment to the entity that has an obligation to execute and necessarily includes the following:
- Embargo in the form of intervention collection of information or goods
- Embargo on a warehouse or kidnapping conservative, that is running on goods that are in any establishment of ownership of that person.
- Embargo on the registration form, the same as that recorded in the Public Registry.
- Embargo in the form of retention, in which case it falls on the property, securities and funds in checking accounts, etc. that are held by third parties. We note that

26979 law contains a provision in Article 14 that deserves special comment since it contains the possibility of issuing an interim measure prior, prior to the expiry of seven days from the start compulsory process, ie the act of initiation of compulsory process.

security will be also various rules of law 26979 was amended by Act 28165, with the last mentioned rule restricts the application of precautionary measures prior and further provides that should the suspension of compulsory process with single filing judicial review proceedings. Now the law 28165 was subjected to constitutional control, a merit of the constitutional claim raised by the Municipality of Metropolitan Lima, a move that was declared unfounded by the Constitutional Court by the Judgement handed down in case No. 0015-2005-PI / TC which was declared by the constitutional provisions.





[1] MORON URBINA, Juan Carlos. "Commentaries on the Law 27444." Ed Law Gazette. 5th ed. P. 500

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Chang Guillermo Hernandez

Lawyer from the Universidad Nacional San Luis Gonzaga de Ica 29 years old, graduated from the Graduate Course in Civil Law from the University Castilla La Mancha in Spain, has completed the internship in Mining Law issued by the Mining Geological and Metallurgical Institute - INGEMMET, with specialization in Mining and civilian branches of contracts and legal acts on issues of municipal tax and Administrative experience; has worked as an official of the Tax Administration Service of Ica and the Tax Administration Service of Chicago Legal Advisor and Tax Administration Service of Pisco, Professor of Administrative Law and Contracts at the Universidad Privada San Juan Bautista - Affiliate Ica, skills for academic research author of the book "Legal Test" published by the Editorial "San Marcos" (2004) and the book "The Interpretation of Contracts in Peruvian law" Ed San Marcos (2009) and collaborator with the magazine " Law Gazette "and JUS of Peru, I have published articles in law journals as virtual Acts of Justice and Law and Social Change and Daily Mail and the City Review, has served as Attorney Muñiz, Ramírez, Pérez-Taiman & Luna Victoria Abogados and currently as a legal consultant of the Regional Energy and Minas de Ica