The administrative procedure in law

The administrative procedure

It is the coordinated series of measures tending to produce and exercise an administrative act, therefore it is a series of events carried out within the organs of public administration to carry out their functions with the powers of their competence.

Administrative Act.- It is the set of statements made by the administrative authority and depends on the public administration and leads to the set of public bodies that perform the functions of the State. Public Service.- It is the activity carried out by the public power In order to satisfy social needs, the public power also keeps two aspects, the first aspect as public power and the second aspect as government. Administrative Act.- In said act we find a unilateral, coercible action, that is, it keeps a sanction in addition to being a discretionary act and remains at the discretion of the authority.

Characteristics of art. 8, 14 and 16 of the Constitution:

It must be in writing, in a respectful manner, and the authority must reply shortly (45 days). Administrative act art. 16 Const. Its foundation falls, it is as a means of annoyance. Administrative Act. decree

The Administrative Authority

It is the public body that unitarily issues the administrative act, in addition the action is unilateral executive and timely and consists in that the act does not affect the administered, as well as the administrative power in its acts creates, modifies and transmits or extinguishes a legal situation So the general interest must be above the private interest.

The Legal Nature of the Administrative Act.

In all administrative act the elements required by law concur, which depends for its validity, efficacy and administrative projection, therefore they can be a valid act, invalid or voidable or null.

The elements of the administrative act

The administrative will; It is the act that is formed by a legally expressed will dictated by the head of the administrative body, within the powers established by law. The motivation.- It is the exposition of the reasons that exist within the administration to address the agreement within of the act, therefore the public servant is supported by a motive whose object affects the collective or private interest. The object.- Must be lawful, determined and possible of general interest or public utility, its legal condition is that the act administrative, declare, recognize or modify the legal situation of the governed. The purpose.- It is the result that the public administration obtains in a useful and convenient way, the satisfaction of the general interest through the imperium of the State.

The administrative procedure

The administrative procedure is classified in the following ways:

Refers to the creation of acts that have their effects within the issuing body, for example sanctions art. 108 External Constitution.- It is carried out before individuals so that it may take effect through formalities. Prior.- The necessary phases are required to produce the administrative act. Execution.- These are the stages that must be met for the Administrative act takes its effects voluntarily and coercively. Of Office. - It is carried out by the initiative of the authority in the exercise of its functions. At the request of the party. It corresponds when the governed request it.

The characteristics of the administrative procedure

Legality.- Must be in accordance with the law.Effectiveness.- The act must be exercised as such.Free.- Public services have no cost.Advertising.- The procedures are not secret.Equity.- The procedure must guarantee a favorable result.

Coercive economic procedure

The SCJN, together with the administrative writers, established that the administrative power is empowered to collect taxes, since the public bodies have this power.

The five aspects of its foundation:

The liquidations of the debt.- It should not be considered as a legal act due to its effects, since it is clearly an administrative act.The request for payment.- It is an administrative act that, despite civil relations, does not require judicial intervention, since It can be carried out through the withholdings made by the persons empowered for that purpose. The seizure of the taxpayer's assets: in the enforcement procedures, even of the judicial resolutions, they are not acts of the same, because they are material acts because the Judicial authority resorts to the executive The auction of assets of the taxpayer: does not imply any operation that may be of a legal nature The application of assets: it is presented with the deprivation of the property of the taxpayer, therefore, its right protected by the numerals is not violated 14,and 22 of the Basic Law.

The administrative will.- It is expressed through the administrative act for which compliance with the procedure is necessary, as a guarantee of the administered, there are two purposes of the administrative procedure, the maximum effectiveness of the administrative authority, and legal protection of the right of interests of the administered.

Differences between the process and the administrative procedure

The process: It is the legal institution where it seeks to satisfy the benefits of the instructed state body, it is the instance before the court, when there are differences in legal acts. The procedure.- It is the set of forms of acts regulated by law in which it participates the public administration and individuals, in case of not fulfilling the purposes and individual guarantees are violated, an amparo trial can be processed.

The administrative contentious procedure

It is the jurisdictional procedure that affects the performance of the administrative interest in a trial, controls the administrative acts, contesting, the ineffective ones, the lawsuits, labor and agrarian are exempt, therefore the general interest is the efficacy and safety of public services, while the private interest, consists of titling the legal interests of the administered, avoiding the arbitrariness that the public servant commits.

The acts of the public administration

They must be founded on the laws or ordinances that are within the constitution, since the administration must support its actions against individuals on the legality of its acts.

There are four causes for which the public power violates the laws:

For erroneous interpretations of the law. For the excess of the fulfillment of the functions. The arbitrariness committed by the public servants. The violation of some right of the administered.

Appeals can be processed before the administration itself for review, or by higher authorities in order to give rise to the annulment of the acts in resolutions issued with applicable violation.

The administrative appeal

It is the means for the defense of individuals in order to be able to challenge before the public administration, the acts and resolutions to the detriment of individuals for violation of the law applied improperly in its resolution.

The administrative appeal creates a controversy between the administration and the administrator whose resolution can be heard by the administrative courts.

The trial before the court of whatever nature, does not proceed if there is a defense against the act between the administrative authorities by virtue of which it can be modified, revoked, nullified to the administrative activity.

The five criteria in favor of the administrative appeal:

The administrative appeal allows the authority to correct its errors. The appeal allows the administrative authority to correct its errors, so as not to be exposed to the courts. The private individual has the possibility for the authority to resolve the appeal in accordance with justice and not According to law, acting as a means of defense avoids the workload to the courts, justice must be prompt and expeditious.

The three criteria against the administrative appeal.

The public servants consider that the resolution of the resource must be given the reason to the administrative authority. The resolution that has the resource must be confirmed. Once the resource has been tried, the administrative authority will delay the business as much as possible in order to despair the administered.

Trader Rodríguez de la Mora.- Affirms that the resource harms individuals with limited resources, since those with a strong economic capacity have the advice of a lawyer and a public accountant in order to promote the administrative resource.

The appeal differs from the trial in that this is a means of challenge with respect to an administrative act, while the trial is aimed at the exercise of the action.

In addition to the fact that the appeal is promoted against the decision of the judicial or administrative authority, it is also an act of ordinary legality and originating from a legal situation, while the action is an act of an organ subject to the subject of law.

The appeal belongs to the jurisdictional or administrative authority in a broad sense, in addition to the fact that the administrative appeal is deduced against the irregular decision of the administrative authority.

The administrative contentious resource.- It is promoted against authorities lacking it.

The action for annulment is promoted against a will or null acts and the appeal for annulment is promoted against non-payment.

The judicial action is promoted by the ruling issued by the State.

The differences between administrative appeals and administrative contentious judgment

The administrative appeal, which is the legal means where the administration acts as judge and party, while the administrative trial, the administration is only separate, The administrative appeal causes an administrative controversy while the trial originates a process, the administrative appeal is exercised in an administrative function, while the trial is in judicial function. The administrative appeal is promoted so that the administration clarifies the law of the administrative function and the administrative judgment, it is the judicial body that clarifies the law for the public interest. The administrative appeal is submitted to the administration who acts without submitting under a rigid procedure, while the trial is the jurisdictional body that acts according to the law. In the administrative appeal the resolution,it is callable before the administration or jurisdictional bodies, while the administrative judgment is contested by means of jurisdictional recourses promoted before the Court of Appeal.

Overview of the administrative contentious judgment

Article 1 General rules: the Constitution, the federal law of the administrative contentious judgment and the International Treaties, in addition handling the supplementary nature of the Code of Federal Civil Procedures.

Article 2 the proceeding of the trial is processed against final resolutions and judgments as established by the Organic Law of the Federal Court of Fiscal and Administrative Justice in articles 14, and 15 where the administrative acts that are issued by tax authorities are defined: tax obligations, the refund of an undue income, fines, grievances, mentions, contracts, administrative appeals and double taxation, negative fiction, regulations, and public servants according to Article 15 of the Magna Carta.

Article 8 the inadmissibility: the law states that the writing does not proceed when it lacks interest as well as competence to consent to lis pendens and the relatedness of the action.

The parties to the trial article 3 the plaintiff and the defendant in their capacity as supervisory authority and if there is a third party to prove and justify the personality of the plaintiff, it is required that the document have the signature of the common representative where it does not proceed the figure of business management, with regard to the presentation, it is necessary to have the letter of power ratified and that the natural person has a law degree.

Article 9 The dismissal occurs when there is withdrawal, inadmissibility, death of the defendant or impediment.

Article 10 impediments for interest in the person's business or for family reasons, for friendship, for acting as proxy, therefore articles 11 and 12 establish the position to be adopted by the president of the room.

The substantiation of the judgment:

The demand: the writing must have the name, address, the authority to which it is addressed, the wording of the facts, the evidence, the documents that are to be challenged, as well as the concepts of challenge and the identification of the third party if there are articles. 13 - 18 The documents to be contested are the documents that prove the personality, and in case of offering the testimonial evidence together with the questionnaire of the interrogation for said people, the answer to articles 19 to 22 has a term of 45 days, the incidents of prior and special pronouncement in addition to the argumentation of the evidence, with regard to the documents, the same guidelines that the plaintiff has must be met.The period of evidence or open declaration the instruction articles 40 - 46.All the evidence except for the confession of the authorities empowering the magistrate on a discretionary basis, with regard to the expert and testimonial evidence. The term of the investigation establishes 10 days and 5 for allegations, article 53 mentions the characteristics of the final judgment.

The means of defense for the administered within this process are those contemplated in numerals 59 and 63 which regulate the remedies of claim and review, with regard to incidents, those of incompetence, accumulation, nullity can be established., challenge and replacement.

conclusion

The administrative procedure. It is the coordinated series of measures tending to produce and exercise an administrative act, therefore it is a series of events carried out within the organs of public administration to carry out their functions with the powers of their competence.