Today the Mexican legal system is undergoing a transaction of the 2011 constitutional reform, regarding the amparo trial, which the Mexican State is forced to modify its own regulatory law of articles 103 and 107 of the Constitution, on April 2 two thousand thirteen, so that the principles that governed the amparo trial, until before its constitutional reform, are appreciated from another legal paradigm, so this research is to deepen regarding the concepts of legal interest and legitimate interest and their differences from each other.
Interest, legal interest and legitimate interest:
First of all, we must briefly explain the concept of "interest" and "subjective right" that the German treatise writer Rudolf von Ihering appreciates, due to the influence it has had on our legislation. Ihering says:
"Two elements constitute the principle of law: a substantial one, which resides in the practical purpose of law, which produces the utility, the advantages, the profits that this ensures; another formal, which refers to that end only as a means, namely: protection of the right, action of justice. Rights are legally protected interests ”.
From the foregoing, two different classes of interests must be distinguished, according to this theory: those not protected and those legally protected through legal action. The first we can call simple interests and consist of “utility, good, value, enjoyment or interest, which are the various ideas that come into play in the concept we are defining. Within this concept of simple interest, Ihering understands not only material goods and values, but goods of a moral nature: personality, freedom, honor, family ties, eg.
Now subjective rights are and should be contained in legal norms; the determining element of the concept is that of legal protection through action before the courts; and there are subjective rights established abstractly and generally (in the laws) and individually in the legal acts that shape the concrete legal sphere of individuals. These legal acts are at the base of the legal pyramid (Kelsen's Pyramid Theory).
The term interest admits several meanings. In the Dictionary of the Royal Academy of Language we find one that is useful to address the topic at hand: "Interest: Inclination of mind towards an object, a person, a narration, etc." As can be seen, this definition gives interest a fundamentally psychological content insofar as it refers to an inclination of the mind, although occasionally the mood is inclined to legal questions. But this last type of inclination is not enough, because the spirit, by itself, is not capable of producing legal consequences; For this, the existence of norms that grant legal consequences to the external manifestations of this spirit is indispensable. In other terms,the interest acquires the legal character when the object to which the spirit is inclined is protected by legal norms. In this sense, the Judiciary has ruled in an infinity of theses that are essentially coincident with each other, for which reason we consider it sufficient to cite, by way of example, the following criteria:
"LEGAL INTEREST FOR THE PROVENANCE OF THE AMPARO. In accordance with the system set forth in the statutory law of the trial of guarantees, the exercise of constitutional action is reserved only to those who suffer damage due to an act of authority or by law. Now, the notion of prejudice for the purposes of the protection implies the existence of a law that is legitimately protected, which, when transgressed by the action of authority or by law, empowers its owner to go before the corresponding court, demanding that this transgression cessation. Such right protected by the objective legal order is what constitutes the legal interest that the law of the matter takes into account for the proceeding of the amparo trial. However,It is worth noting that not all the interests that may exist in a person deserve the qualification of legal, since in order for this to happen, the objective right must take charge of them through one or more of its regulations. Isolated thesis of the Plenary of the Supreme Court of Justice of the Nation, published in the Judicial Weekly of the Federation, Seventh Epoch, Volume 52, First Part, page 46 ”.
In the matter of amparo, the demonstration of legal interest raises an issue of origin because, if this does not occur, the consequence will be the dismissal at the trial and, on the contrary case, a substantive judgment that may or may not grant the amparo, since This will depend on whether or not a violation of human rights has been proven, because as the criterion of the Supreme Court of Justice is stable, legal interest is the protection of the law with respect to a human right, which, when violated by any affectation or impairment of their substantive right that the Law itself protects and safeguards, causes legal consequences, injuring that asset protected by the Law.
On the other hand, regarding the concept of legitimate interest, it is said that from the moment the term legitimate is used, it must be understood that it is a legally protected interest, in what coincides with the legal interest in the strict sense and distinguishes it from the simple interest that such protection does not imply. In other words, legitimation must be understood as the legal justification of a diffuse right, such as that of an interest that legally deserves to be protected, and of a special situation vis-à-vis the legal order, which may be a legitimate individual or collective interest.
It is not an obstacle that prior to the constitutional reform that concerns us, the legitimate interest was already contemplated in the contentious administrative matter, so it is convenient to analyze some important judicial criteria in this matter.
In reference to the administrative contentious system, the Fourth Collegiate Court in Administrative Matters in the Federal District, held the following criteria:
"LEGITIMATE INTEREST" AND "LEGAL INTEREST". BOTH TERMS HAVE THE SAME CONNOTATION IN LAW. The concepts "legal" and "legitimate" have grammatically the same content, according to the Encyclopedia of the Language of Martín Alonso; by legitimate it is had "what is in accordance with the laws" and legal has a meaning of what is done "in accordance with the provisions of the law"; Escriche points out that legitimate is "what is in accordance with the laws, what is introduced, confirmed or verified by some law" and legal says that it is "what is or is done according to the form of judgment or law." It is admitted that grammatical definitions are not the only basis on which the Judge has to say the law, the words that are part of a legal provision must be interpreted and applied according to the context of that legal norm,and it is in this context that this court finds no difference, apart from the semantics between one word and another; it should be noted that articles 33 and 71, section V, of the Organic Law of the Administrative Court of the Federal District already repealed, alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that do not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.apart from the semantics between one word and another; it should be noted that articles 33 and 71, section V, of the Organic Law of the Administrative Court of the Federal District already repealed, alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that do not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.apart from the semantics between one word and another; it should be noted that articles 33 and 71, section V, of the Organic Law of the Administrative Court of the Federal District already repealed, alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that do not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.of the Organic Law of the Administrative Court of the Federal District already repealed, alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that did not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.of the Organic Law of the Administrative Court of the Federal District already repealed, alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that did not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.they alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that did not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.they alluded to the necessary existence of a legal interest to attend the trial before said court and that the trial would be inadmissible against acts that did not affect the "legal interest" of the actor; while the current law refers to a "legitimate interest", which leads us to affirm that it suffices for those who attend the trial to consider themselves affected for it to be admissible. Isolated thesis I4o.A. 299 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume IX, April 1999, p. 555.
"LEGITIMATE INTEREST, CONCEPT OF, IN TERMS OF ARTICLE 34 OF THE LAW OF THE ADMINISTRATIVE DISPUTE COURT OF THE FEDERAL DISTRICT. Article 34 of the Law of the Administrative Court of the Federal District specifies that only people who have a legitimate interest in it may intervene in the trial. Now, the legitimate interest must be understood as that interest of any person, public or private, recognized and protected by the legal system. From a stricter point of view, as a technical and operational concept, legitimate interest is an active legal situation that allows the action of a third party and that does not imply, unlike subjective law, a correlative obligation to give, do or not do callable to another person,but it does grant the interested party the power to demand respect for the legal system and, where appropriate, to demand reparation for the unlawful damages that may result from that action. In other words, there is a legitimate interest, specifically in administrative law, when a certain administrative conduct is liable to cause harm or generate a benefit in the factual situation of the interested party, protected by law, so that the latter does not have a right subjective to demand a certain conduct or to impose a different one, but yes to demand from the administration the respect and due compliance with the legal norm. In that case,the holder of the interest is entitled to intervene in the corresponding administrative procedure and to appeal or act as a party in the judicial proceedings related to it, in order to defend that situation of interest. The legitimate interest is intermediate between the legal interest and the simple interest, and it has had a fundamental development in administrative law; the existence of the legitimate interest follows from the basis that there are rules that impose a compulsory conduct of the administration, however, it does not require the affectation to a subjective right, although it does to the legal sphere of the individual, understood this in a sense large; through the legitimate interest, a broader and more effective protection of rights that are not diffuse but not subjective rights is achieved.Thus, we can highlight the following characteristics that allow us to define the legitimate interest: 1) It is not a mere interest in the legality of the actions of the authority, it requires the existence of a personal, individual or collective interest, which means that to prosper the action would obtain a legal benefit in favor of the plaintiff; 2) It is guaranteed by objective law, but does not give rise to a subjective right, there is no power over one another; 3) An element that allows it to be fully identified is that it is necessary that there be an affectation to the legal sphere in a broad sense, be it of an economic, professional or any other nature, because otherwise we would find ourselves before popular action, which it requires no affectation to the legal sphere;4) The holder of the legitimate interest has an interest of its own, different from that of any other governed, which consists in the public powers acting in accordance with the law, when due to the pursuit of general purposes it affects the scope of that self-interest; 5) It is a qualified interest, current and real, not potential or hypothetical, that is, it is a legally relevant interest; and, 6) The annulment produces positive or negative effects in the legal sphere of the governed. On the other hand, the Thirteenth Collegiate Court of the same matter and circuit, considered: Isolated Thesis I.13o.A.43 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XV, March 2002, P. 1367.which consists of the public powers acting in accordance with the law, when due to the pursuit of general purposes it falls within the scope of that self-interest; 5) It is a qualified interest, current and real, not potential or hypothetical, that is, it is a legally relevant interest; and, 6) The annulment produces positive or negative effects in the legal sphere of the governed. On the other hand, the Thirteenth Collegiate Court of the same matter and circuit, considered: Isolated Thesis I.13o.A.43 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XV, March 2002, P. 1367.which consists of the public powers acting in accordance with the law, when due to the pursuit of general purposes it falls within the scope of that self-interest; 5) It is a qualified interest, current and real, not potential or hypothetical, that is, it is a legally relevant interest; and, 6) The annulment produces positive or negative effects in the legal sphere of the governed. On the other hand, the Thirteenth Collegiate Court of the same matter and circuit, considered: Isolated Thesis I.13o.A.43 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XV, March 2002, P. 1367.not potential or hypothetical, that is, it is a legally relevant interest; and, 6) The annulment produces positive or negative effects in the legal sphere of the governed. On the other hand, the Thirteenth Collegiate Court of the same matter and circuit, considered: Isolated Thesis I.13o.A.43 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XV, March 2002, P. 1367.not potential or hypothetical, that is, it is a legally relevant interest; and, 6) The annulment produces positive or negative effects in the legal sphere of the governed. On the other hand, the Thirteenth Collegiate Court of the same matter and circuit, considered: Isolated Thesis I.13o.A.43 A, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XV, March 2002, P. 1367.
This last thesis seems more acceptable inasmuch as it establishes that the two types of interest are different from each other, and it is correct to point out some elements that in it are considered adequate for the definition of legitimate interest, although some of them seem debatable, such as the marked in point 4), since the legitimate interest of a holder is normally not essentially different from that of any other governed, as well as the one identified with number 6), because if the intended annulment produces positive or negative effects in the sphere legal of the governed, would be in the presence of a legal interest in the strict sense. We will return to these topics later.
“LEGITIMATE INTEREST IN THE AMPARO. ITS ORIGIN AND CHARACTERISTICS. Legitimate interest has its origin in the so-called rules of action, which regulate the organization, content and procedures that must govern administrative activity, and constitute a series of obligations in charge of public administration, without establishing subjective rights, since when dealing with the legality of administrative or government acts, they are issued in order to guarantee general and not particular interests. In this context, due to the administration's actions, a certain subject of law may have an advantage in relation to the others, or suffer harm; in this case, individuals only take advantage of the need to observe the rules dictated in the collective interest,therefore, through and as a consequence of that observance, their interests are occasionally protected. Thus, the legitimate interest protects the governed whose livelihood is not found in a subjective right granted by the regulations, but in a qualified interest that it may in fact have regarding the legality of certain acts of authority. Therefore, the complainant must prove that he is in that special situation that affects his legal sphere with compliance with the so-called rules of action, in order to demonstrate his legitimacy to urge the amparo action. FIFTH COLLEGE COURT OF CIRCUIT OF THE AUXILIARY CENTER OF THE FIFTH REGION. Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.the legitimate interest protects the governed whose livelihood is not found in a subjective right granted by the regulations, but in a qualified interest that in fact it may have regarding the legality of certain acts of authority. Therefore, the complainant must prove that he is in that special situation that affects his legal sphere with compliance with the so-called rules of action, in order to demonstrate his legitimacy to urge the amparo action. FIFTH COLLEGE COURT OF CIRCUIT OF THE AUXILIARY CENTER OF THE FIFTH REGION. Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.the legitimate interest protects the governed whose livelihood is not found in a subjective right granted by the regulations, but in a qualified interest that in fact it may have regarding the legality of certain acts of authority. Therefore, the complainant must prove that he is in that special situation that affects his legal sphere with compliance with the so-called rules of action, in order to demonstrate his legitimacy to urge the amparo action. FIFTH COLLEGE COURT OF CIRCUIT OF THE AUXILIARY CENTER OF THE FIFTH REGION. Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.but in a qualified interest that it may in fact have regarding the legality of certain acts of authority. Therefore, the complainant must prove that he is in that special situation that affects his legal sphere with compliance with the so-called rules of action, in order to demonstrate his legitimacy to urge the amparo action. FIFTH COLLEGE COURT OF CIRCUIT OF THE AUXILIARY CENTER OF THE FIFTH REGION. Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.but in a qualified interest that it may in fact have regarding the legality of certain acts of authority. Therefore, the complainant must prove that he is in that special situation that affects his legal sphere with compliance with the so-called rules of action, in order to demonstrate his legitimacy to urge the amparo action. FIFTH COLLEGE COURT OF CIRCUIT OF THE AUXILIARY CENTER OF THE FIFTH REGION. Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.Visible in the Thesis: XXVI.5o. (V Region) 14 K (10a.), Judicial Weekly of the Federation, Tenth Epoch ”.
LEGITIMATE INTEREST AND LEGAL INTEREST. ITS CONSTITUTIVE ELEMENTS AS REQUIREMENTS TO PROMOTE THE INDIRECT JUDGMENT OF AMPARO, PURSUANT TO ARTICLE 107, SECTION I, OF THE POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES. The aforementioned precept establishes that the indirect amparo judgment will always be followed at the request of the aggrieved party, "having such a character who claims to be the holder of a right or of a legitimate individual or collective interest", with which he attributes legal consequences, from the point of view of the legitimation of the promoter, both to the legal interest in the strict sense, as well as to the legitimate one, since in both cases the person who is located within them is granted legitimacy to urge the action for protection. In this virtue, mindful of the nature of the act claimed and that of the authority that issues it,The complainant in the amparo trial must reliably prove the interest, legal or legitimate, that assists him in doing so and not infer based on presumptions. Thus, the constituent elements of the legal interest consist in demonstrating: a) the existence of the subjective right that is said to be violated; and, b) that the act of authority affects that right, from which the corresponding grievance derives. On the other hand, to prove the legitimate interest, it must be proven that: a) there is a constitutional norm in which a diffuse interest is established or protected for the benefit of a specific community; b) the act claimed violates that diffuse interest, either individually or collectively; and, c) the promoter belongs to that community. The above, because if the legitimate interest involves a legal effect on the complainant,The latter must demonstrate his membership in the group that specifically suffered or suffers the tort that is alleged in the application for amparo. In this regard, it is possible to indicate that the prominent constituent elements are concurrent, therefore, the absence of any of them is enough for the means of defense attempted to be inadmissible. Visible in Thesis: 2a. LXXX / 2013 (10a.), Second Chamber, Book XXIV, September 2013 Volume 3, Judicial Weekly of the Federation and its Gazette, Tenth Epoch,September 2013 Volume 3, Judicial Weekly of the Federation and its Gazette, Tenth Epoch,September 2013 Volume 3, Judicial Weekly of the Federation and its Gazette, Tenth Epoch, With regard to these last two criteria of the Supreme Court of Appeal, sign the characteristics and clear differences of the legitimate interest as the legal interest, in a more clear and concrete way, since it is appreciated that the constituent elements of the legal interest consist in demonstrating: a) the existence of the subjective right that is said to be violated; and, b) that the act of authority affects that right, from which the corresponding grievance derives. And contrary case when addressing the legitimate interest, it must be proven that: 1) there is a constitutional norm in which a diffuse interest is established or protected for the benefit of a certain community; 2) the act claimed violates that diffuse interest, either individually or collectively; and, 3) the promoter belongs to that community,that is to say, belonging to a group that specifically suffered or suffers the grievance that is adduced in the application for amparo.
Other differences, of these two concepts, are that the legal interest is capable of generating subjective rights for the benefit of certain people; they can be individualized in such a way that the legal status of the person is immediately and directly affected.
On the other hand, those relating to the legitimate interest do not have the capacity to generate subjective rights, they are those that establish the so-called diffuse interests and that are aimed at producing certain results in society or in some nuclei or groups that comprise it and that, like it, they lack legal personality.
In other words, they protect the interests of a community that lacks legal personality without granting subjective rights to its members.
On the other hand, the legal interest supposes the existence of a right within the particular legal sphere of an individual (subjective right), which is within its legal status.
However, the legitimate interest does not suppose a direct affectation to the legal status, but an indirect one, insofar as the person suffers an affectation not in himself, but for being located in a special situation in front of the legal order, which allows him act to obtain the respect of their legally protected interest even if they do not enjoy a subjective individual reflex right. Rather, it is affected when the subject is part of a collective entity.
However, regarding the legitimate interest as an eventual element of the amparo action, the elements that constitute it must also be identified, since it is these that must be accredited to justify the origin of the corresponding exercise. From what has been said in previous paragraphs, it must be concluded that the elements that determine the existence of a legitimate interest are the following:
- Existence of a norm that establishes or protects a diffuse interest for the benefit of a specific community; Affectation of that diffuse interest to the detriment of that community by the law or act that is claimed, and Belonging of the complainant to said community.
In relation to the third of these elements, it should be noted that some rule may establish a diffuse interest for a very broad community, but the act that is claimed only affects a part of its members and not the whole, in which case it should be accredited by the complainant who is precisely within the group -or if you want subgroup-, really affected, without it being enough to prove your membership in that community
Finally in 2013, the Minister of the Supreme Court of Justice of the Nation, Don Arturo Zaldívar Lelo de Larrea, makes a very correct distinction by which he expresses that the legitimate interest, unlike the legal interest, does not agree with the needs of a Modern society does not respond to the challenges of contemporary public law, since they are outside the constitutional protection of the amparo trial, acts of authority that injure the legal sphere of individuals, but that do not directly affect a subjective right, as well as those acts that violate diffuse and collective interests, which correspond to an undetermined number of people who are also not associated.
In the case of legal interest, taking into account the elements that constitute it, it is accepted that its demonstration supposes that the existence of the subjective right that is said to be violated is proven and, furthermore, that the act of authority affects that right, from which the corresponding grievance that may or may not be justified, but that legitimizes the exercise of the action. Thus, for example, whoever intends to defend a property owned by him against a specific act of authority, must prove, on the one hand, that he is the owner of the property that he considers to be affected and, on the other, that the act that he is claiming is responsible referred to that good to such an extent that it subtracts the corresponding right from the legal status of the complainant or, at least, affects it.The foregoing means that a relationship between the subjective right and the claimed act of authority must be demonstrated, a relationship that must necessarily make one suppose that it affects the former, so the demonstration of legal interest necessarily supposes, first, the existence of a subjective right and, second, of the affectation of that right precisely by the law or the claimed act.
conclusion
It is established that, like the legal interest, the legitimate one must be fully accredited for the amparo action to be appropriate.
And for there to be a legitimate interest, there must first be 1. Existence of a norm that establishes or protects a diffuse interest for the benefit of a specific community; 2. Affectation of that diffuse interest to the detriment of that community by the law or act that is claimed, 3. Belonging of the complainant to said community and 4. Special situation in front of the legal order.
Contrary to the constitutive elements of the legal interest, they consist of demonstrating: a) the existence of the subjective right that is said to be violated; and, b) that the act of authority affects that human right, from which the corresponding grievance derives.
Because both requirements of action of procedural action of amparo, meet different formalities and although in connotation they are similar, both are integrated with different characteristics.
Bibliography
- Ius SCJN.Conference. At the Institute of the Federal Judiciary of the Minister of the Supreme Court of Justice of the Nation, Don Arturo Zaldívar Lelo de Larrea.Chávez Castillo, R. (2008). Practical Theoretical Treaty of the Amparo Trial. Mexico. Porrúa.www.socienciadelhonorjudicial.org / pdfs (concept of the German Rudolf von Ihering).
