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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