The present work is an analysis, argumentation and judicial interpretation of the administrative review resource, in order to know its effectiveness and legal technique of application of the Judicial authorities making reference to great masters of administrative law, and then fully enter the Explanation of the same, jointly analyzing federal and state regulations, which allows us to conceive the reasoning and legal analysis applied in judicial decisions in matters related to what is regulated by the Laws of application to Administrative Matters.
Key Words: Legal Argumentation, Interpretation, Legislation, Legal Reasoning
Abstract:
This paper is an analysis and interpretation legal argumentation judicial review in administrative matters, in order to determine its efficiency and legal technique of applying judicial authorities referring to great masters of administrative law, then jump the explanation of it, analyzing jointly by federal and state law that allows us to conceive the legal reasoning and analysis applied in the judgments in issues regulated by the laws applicable to the Administrative Matters.
Keywords: Legal Reasoning, Interpretation, Legislation, Legal Reasoning.
INTRODUCTION
The present topic is of utmost importance in the administration of justice in our Mexican legal system, since in this essay it is about knowing and interpreting a means of legal defense that the government has before the judicial proceedings instituted against it by the State., be it for the claim of an action or omission made by the governed; For this reason, in the development and study of subsequent topics, we will provide the reader with the present logical and legal cognitive reasoning referred to in the rules and regulations of procedure, form and substance of the applicability of the regulatory legislation of the Administrative Matter in our Country as well as at the State level.
Mindful of the above, we can say that the study of the appeal for administrative review is necessary, because while it is true that the state protects collective interests, it is also true that the individual against the state is protected by the law itself derived from the human rights and guarantees that protect it, consequently, the observance of them is also at the discretion of the international treaties to which our country is a party, because in response to this it is reiterated that the human being has an interest legitimate which in our times is watched and claimed at the universal level.
The appeal for administrative review is the one that results from the dissatisfaction of any of the parties against a sentence or resolution issued by a court or a control body; It is also extremely important to highlight that this means of challenge must be filed within 15 days after the legal notification of the sentence or resolution issued by a court, this being the number of days established by federal and state regulations for it to be filed. in time and form, said appeal must be filed in writing, and the grievances and damages caused to the appellant by the act that he is contesting must be stated, to which the authority on the occasion of his presentation determines what is conducive.
REGULATORY FACULTY OF THE STATE.
A fundamental question for the preferential study of administrative matters is the fact of being able to understand the role of the State vis-à-vis the Governor. In view of this, the nature of the administrative act follows; In this sense, we began its study from its legislative origin, which is why the regulatory power that the state itself has to regulate the administrative sphere and its enforcement is to be mentioned.
The above leads us to cite the literal content of article 89 of our Magna Carta which in what concerns indicates the following:
"Art. 89.- The powers and obligations of the President are as follows:
I.- To promulgate and execute the laws issued by the Congress of the Union, providing in the administrative sphere to its exact observance. ”…
From the previous precept, the Author Diego Valadès, states that: "this attribution, essential for the operation of any government…", since every State bases its legal system on written norms (also originally called civil law), as derived from the Regulations Federal we find that the State provides similar powers to the state authorities in order to achieve mechanisms of control and coercivity of their activities that are generated due to the State-Individual relationship.
Consistent with the foregoing, it becomes evident that administrative law itself arises from the need of the state to regulate the behaviors attributable to the governed, as a result of the search for social balance before the prerogatives of the state firmly subject to the common good, since by exercising Their actions create opposable legal situations, for which reason administrative acts are said to be unilateral by government decisions. Therefore, we understand that the state in the full exercise of acts of fact or rights, can generate acts of annoyance to individuals, and that as a consequence administrative law is a constant subjection to the legal operation of the state with the administered.
Applicable regulations.
In order to understand the legal hermeneutics of the administrative rule, it is compulsory to study the most fundamental precepts that govern the procedural, formal and substantive administrative contentious procedure, these being the following:
- the provisions of Article 1 of the Constitution, which states: "In the United Mexican States, all persons shall enjoy the human rights recognized in this Constitution and in the international treaties to which the Mexican State is a party, as well as the guarantees for their protection, the exercise of which cannot be restricted or suspended, except in the cases and under the conditions established by this Constitution ”; as well as in the American Convention on Human Rights adopted in San José de Costa Rica, an international treaty duly signed by the Mexican State, particularly article 25, point 2, paragraph c), which includes the aforementioned fundamental rights, understood in the demonstration, as wide and extensive as possible, so that the governed have an effective system of access to the courts, from which it can be deduced,with sound logic, that the necessary actions be taken to restore the individual in the full enjoyment of the rights that were unduly affected or unknown.
In that order of ideas it is also said that administrative law must observe:
- The guarantees of legality and legal security contained in articles 14 and 16 of the Political Constitution of the United Mexican States, have the scope to require that in any act of authority the device or devices that empower whoever does so are indicated with accuracy and precision. issue and define the character with which it acts, whether it does it by itself, by absence of the corresponding owner or by delegation of powers and, in the event that these rules include various assumptions, specify the section, fraction or fractions, subsections or subsections in which it supports its action, and if it does not contain them, if it is a complex norm, transcribe the corresponding part, paying attention to the constitutional requirement of certainty and legal certainty of the individual against the acts of the authorities that affect or injure his legal interest.
The provisions of the Federal Law of Administrative Contentious Procedure regarding the resource that we will analyze in subsequent paragraphs, this being the literal content of the following:
Title II
Of the review
ARTICLE 63.- The resolutions issued by the Plenary, the Sections of the Superior Chamber or by the Regional Chambers that decree or deny the dismissal, those that dictate in terms of articles 34 of the Law of the Tax Administration Service and 6 of This Law, as well as those issued in accordance with the Federal Law on State Property Responsibility and the final judgments they issue, may be challenged by the authority through the administrative unit in charge of its legal defense or by the
federated entity coordinated in corresponding federal income, filing the appeal of review before the Collegiate Circuit Court competent in the seat of the Plenary, Section or Regional Room to which it corresponds, by means of a writing that is presented before the person in charge, within the fifteen days following The one in which the respective notification takes effect, provided it refers to any of the following cases:
I. It is of an amount that exceeds three thousand five hundred times the daily general minimum wage of the geographic area corresponding to the Federal District, in force at the time of the issuance of the resolution or sentence.
In the case of contributions that must be determined or covered for periods of less than twelve months, to determine the amount of the matter, the amount resulting from dividing the amount of the contribution by the number of months included in the corresponding period and multiplying the amount will be considered. quotient for twelve.
II. It is of importance and significance when the amount is less than that indicated in the first section, or of an undetermined amount, the appellant must reason that circumstance for the purposes of admitting the appeal.
III. Whether it is a resolution issued by the Ministry of Finance and Public Credit, the Tax Administration Service or by fiscal authorities of the Federal Entities coordinated in federal income and whenever the matter refers to:
- Interpretation of laws or regulations tacitly or expressly. Determination of the scope of the essential elements of the contributions. Competence of the authority that has issued or ordered the contested resolution or processed the procedure from which it derives or the exercise of the powers of verification. Procedural violations during the trial that affect the appellant's defenses and go beyond the meaning of the ruling. Violations committed in the resolutions or judgments themselves. Those that affect the fiscal interest of the Federation.
IV. Be a resolution issued in relation to the Federal Law on Administrative Responsibilities of Public Servants.
V. Be a resolution issued on foreign trade.
SAW. Whether it is a resolution regarding social security contributions, when the issue is about the determination of obligated subjects, of concepts that make up the contribution base or about the degree of risk of companies for the purposes of occupational risk insurance or about any aspect related to pensions granted by the Institute of Security and Social Services for State Workers.
VII. Whether it is a resolution in which the right to compensation is declared, or the Tax Administration Service is sentenced, in terms of article 34 of the Tax Administration Service Law.
VIII. It is resolved on the condemnation of costs or compensation provided for in article 6 of the Federal Law of Administrative Contentious Procedure.
IX. Be a resolution issued on the grounds of the claims provided for in the Federal Law of State Property Liability.
In lawsuits that deal with resolutions of the fiscal authorities of the federal entities coordinated in federal income, the appeal may be filed by the Tax Administration Service, and by the aforementioned federal entities in the lawsuits that intervene as part.
With the statement of grievances, the appellant must exhibit a copy of the same for the file and one for each of the parties that had intervened in the contentious administrative proceeding, which must be summoned so that, within the term of fifteen days, appear before the Collegiate Circuit Court that knows of the review to defend their rights.
In all the cases referred to in this article, the party that obtained a resolution favorable to his interests may adhere to the review filed by the appellant, within a period of fifteen days from the date on which the admission is notified. of the resource, expressing the corresponding grievances; in this case, adherence to the appeal follows its procedural luck.
This appeal for review shall be processed in the terms provided in the Amparo Law regarding the regulation of the appeal for review.
ARTICLE 64.- If the individual filed a direct amparo against the same resolution or contested judgment through the appeal for review, the Collegiate Circuit Court that is aware of the amparo will resolve the aforementioned appeal, which will take place in the same session in which the amparo decides..
So we also recapitulate the provisions of the Administrative Procedures Law for the State of Chiapas, analyzed as to the application referred to in the second book of the same, as this is in relation to its application set forth in the previous federal law, this being the literal content the following:
Title III (sic)
From the Review Resource
Article 173.- The appeal for review shall proceed:
I. Against resolutions of the Magistrates of the Civil or Mixed Collegiate Regional Chambers that:
- Admit, reject or consider the claim, the answer, the extension of both or some evidence not filed, those that grant or deny the provisional suspension, those that modify or revoke the order in which the provisional suspension was granted or denied. deny the dismissal at the trial before the closing of the investigation; and, those that admit or reject the intervention of the interested third party, those that declare the expiration of the instance, those that order the procedure to be reinstated, those that may cause irreparable damage or are difficult to repair.
II. Against definitive judgments of the Collegiate Civil or Mixed Regional Chambers that:
- Solve the merits of the matter. Decree the dismissal at trial; or in her case, those that deny the dismissal.
III. Against interlocutory sentences that:
- a) Grant or deny the definitive suspension b) Resolve the incidents.
The review shall be filed before the Collegiate Civil or Mixed Regional Chambers as appropriate, within ten days following the date on which the notification in question takes effect.
Article 174.- In the document with which the appeal is filed, an expression of grievances will be made, the appellant must show a copy of it for the file and one for each of the parties involved in the administrative contentious judgment, to which You must summon them so that, within the term of ten days, they appear in writing before the Constitutional Court operating in the Chamber to defend their rights.
When the copies referred to in the preceding paragraph are totally or partially missing, the appellant will be required to present the omitted copies, within a period of three days; if he does not exhibit them, the President of the Constitutional Court Chamber will have (sic) the appeal not filed.
In all cases referred to in this Article, the party that obtained a resolution favorable to their interests may adhere to the review filed by the Complainant, within a period of ten days from the date on which the admission is notified. of the resource, expressing the corresponding grievances; in this case, adherence to the appeal follows its procedural luck.
When the review is filed against the agreement that supersedes the trial, it is that the instruction had been closed, in the event of the plaintiff's withdrawal, it will not be necessary to give the counterparty a hearing.
Article 175.- Once the review has been filed and the copies of the statement of grievances have been received in time, the Regional Collegiate Civil or Mixed Chamber shall send the original file to the Constitutional Court operating in the Chamber, within a term of twenty-four hours, as well as the original of the own grievance brief.
In the cases of interlocutory judgments that grant or deny the definitive suspension, the original file of the suspension incident must be sent, with the original of the statement of grievances, within the term of twenty-four hours to the Constitutional Court operating in the Chamber.
In the case of the order in which the suspension of plane has been granted or denied, once the review has been filed, it should only be sent to the Constitutional Court operating in the Chamber, a certified copy of the demand brief, of the appealed order, of its notifications and of the brief or letter in which the appeal for review has been filed with the date and time of receipt.
The Constitutional Court operating in the Chamber, will qualify the provenance of the appeal for review, admitting or rejecting it.
Article 176.- The Constitutional Court operating in the Chamber, upon hearing the matters under review, shall observe the following rules:
I. They will examine the alleged grievances against the appealed resolution and, when they consider that they are well founded, they must consider the concepts of violation whose study was omitted by the judge.
II. They will only take into consideration the evidence that had been presented before the Chamber that knows or has known of the trial of the contentious trial (sic); as well as the appealed resolution.
III. If they consider the cause of inadmissibility stated by the Chamber to be unfounded, in order to dismiss the contentious judgment after the parties have presented evidence and presented their arguments, they may confirm the dismissal if it appears that another legal reason has been proven, or revoke the appealed resolution and enter the merits of the matter, to pronounce the corresponding sentence.
IV. If in the review of a sentence, they find that the fundamental rules that regulate the procedure in the contentious trial were violated, or that the Chamber incurred in any omission that would have left the appellant defenseless or could influence the sentence to be handed down in definitive, they will revoke the challenged and they will order the procedure to be reinstated, as well as when it also appears that one of the parties that has the right to intervene in the trial in accordance with the law has not been heard.
From the legal regulations that have been outlined, it is concluded that, it has been gradually demonstrated that the theory of the subjective rights of the governed, before the state administration at the time of carrying out these acts of public power, is allowed to act for itself, like an owner, to which the administration is only obliged not to fail to veil the legality of the public thing, since acts of public power that violate legality, understood objectively, are therefore nullified, the recognition of the rights of individuals against the state becomes a matter of appreciation of the conditions of interpretation of the intentions with which the state issued its act of authority, because in such circumstances,The judge is obliged to observe this nonconformity resulting from the execution of the acts of the state, the fundamental rights with the nuances of social balance in the unrestricted respect of the rules of public power, which allow the subsistence of the highest degree of public power in interest of the community.
The regulations outlined in previous epigraphs, make us know the criteria by which the governed after having been called to trial by the state and / or vice versa, it becomes evident that after having issued the sentence with acquittal or condemnatory effects, the The law places the disputing parties on the same level of equality, in order that some of them may disagree if their interests agree with the resolution issued by the court that issued it, which will be resolved by the higher authority as applicable. to the specific case determined by the law that governs the administrative act and being in time and form within the challenge stage of the procedure that is resolved in that sense.
CONCLUSIONS
Congruent with what has been stated, we must understand that the regulations that govern the administrative legal sphere, are faced with topics and techniques of judicial observance, which make us know that in the first term is the rule on the fact or act from which it came the disagreement of any of the parties, that for the purpose of the origin of the contentious means of the present study, there is the requirement of procedural nature, which has as its principle that in the main trial a judgment or resolution has been issued that some form in its essence causes a grievance to the appellant, giving rise to the remedy of review, as well as on a not less important level, we also find,that the providers of justice have the duty to obtain knowledge of the historical veracity of the facts that are claimed through the challenge through the evidence that each of the parties brings to trial, as well as the judge for To resolve this disagreement, it must use various technical supports (such as expert opinions, among others) and scientific advances that allow it, in general terms, to carry out an assessment in accordance with the rules contained in the applicable legal frameworks, thus finding the elements that legitimize its determination or resolution in value judgments, that demonstrate in a timely and truthful manner the deployment of reasoning tending to justify the adequacy of the constitutional precepts and others,as requested by the appellant and stated in his grievances the plaintiff of the review, in order for the judge to adopt, his decision according to values and not to his free discretion or simple analogy, even his arbitrariness.
Among the difficulties and complications in which the models of argumentation and interpretation of administrative regulations are immersed, we find style in the requests to file the appeal for review due to the considerations that the appellant considers pertinent those that cause harm to his interests, reason for which they express facts or acts with the purpose of influencing and persuading with interpretations of the norm or by making citations of notorious facts (previously pronounced sentences and / or resolutions) as well as the use of jurisprudence in their initial writings of disagreement, with the aim of inculcating to the solver an observance tending to generate axiological judgments that are interpreted within the typicity with the effect of determining justification; However,at all times the judge must resolve the disagreement raised through the appeal for review, complying with the demands of justice and fairness in the jurisdictional function of the specific case, avoiding that the subjective right produces unjust particular results that violate or violate procedural, formal or in substance the rights of the parties.
The appeal for administrative review, as established by the regulations set forth above, is intended to modify, confirm or acquit the appellant of the contested judgments or resolutions, basing the determination issued in law, and must argue the estimate of the judge, satisfying the criteria required to consider the respective sentence legal, ruling in accordance with the general principles of law, such as equality, freedom, legal security, equity, innocence, justice, among others.
Bibliography.
- VALADÈS Diego. (Mexico, 2011), THE CONTROL OF POWER. Porrúa Publishing House. FRAGA Gabino. (Mexico, 2000), THE CONTROL OF POWER. Porrúa Publishing House. ROBERT Alexy, (Mexico, 2006), JUDGES AND ARGUMENTATIVE WEIGHTING. UNAM.
- FEDERAL LAW OF ADMINISTRATIVE DISPUTE PROCEDURE.
- LAW OF ADMINISTRATIVE PROCEDURES FOR THE STATE OF CHIAPAS.
