Theory of the administrative act

1. Introduction

The purpose of this work is to enlighten the reader about the Theory of the Administrative Act, as well as its similarities and differences with other acts and events of the national administration, its main characteristics, applications, objects and other circumstances that surround it. We hope that this serves to improve the understanding of the operation of the National Public Administration, as well as the application of the decisions made by it.

2. Administrative Act

It is the intellectual conception of the administrative fact (eg Order the construction of an office). Legally, it has a presumption of legitimacy, which is why it determines the obligation of the individual to comply with it and the birth of the terms of challenge and expiration. It can be annulled. They are challenged through administrative appeals.

Essential elements: subject (state: performs the act), cause (reason or circumstance that originated the act), object (individuals: on whom the act falls), purpose (common good), form (of performance), will (written expression or verbal of the act), competence (principle of hierarchy) and notification (to be valid the acts must be notified to individuals).

Accidental elements: term (period of validity), condition (for application) and mode (form of implementation).

Characters: legitimacy (presumption of validity), enforceability (mandatory compliance), enforceability (authority to obtain the execution of the act after publication), stability (prohibition of revocation after notification), contestability.

Broad Theories: a) Unilateral and bilateral, individual and general administrative actions and declarations, with direct and indirect effects. This definition includes all administrative actions. According to this theory, the acts of the Legislative and Judicial Powers are also of an administrative nature.

b) Unilateral and bilateral, individual and general administrative declarations, with direct and indirect effects. This definition includes acts, regulations and contracts.

C) Unilateral and bilateral, individual and general administrative declarations, with direct effects. This definition includes contracts and regulations.

Intermediate Theory: Unilateral, individual and general administrative declarations, with direct effects. This definition includes the regulations and is the one used in our country.

Restricted Theory: Unilateral, individual administrative declarations, with direct effects.

Nullity: is given by the exclusion of the will of the Administration due to essential error, existence of fraud, incompetence due to matter, time, territory or degree, lack of cause or violation of the applicable law, essential forms or the purpose that inspired its dictation.

Defective act: is one that presents vices, deficiencies or irregularities.

Violations of the law: they are those that prevent the act from producing its normal effects. There are two degrees, null act of absolute nullity and voidable act.

Revocation of a null act: null acts must be revoked, except for those that have generated subjective rights that are being complied with, in which case revocation must be requested by judicial means.

Revocation of a regular act: causes: if it favors the interested party without harming third parties and the right had been granted precariously; reasons of opportunity, merit or convenience; illegitimacy; lack of good faith.

Ratification: when the act has been issued with incompetence of degree, it will be valid if it is ratified by the higher body, provided that the certiorari, substitution and delegation were competent.

Confirmation: if the act has defects, the body that issued it can correct them and thus confirm the act, the effects of the reorganization are retroactive.

Conversion: it is the elimination of the invalid parts of the act and the addition of valid parts, the effects of the new parts are not retroactive.

Expiration: when the interested party does not comply with the conditions of the act, he is declared in default, once the delay is fulfilled, the act expires.

Review: causes: contradictions in the operative part, when documents or information arose after being issued that due to force majeure could not be presented at the time, when the falsity of evidence or documents related to the act had been declared after implementation, when it had been dictated by cohesion, violence, fraudulent machinations, etc.

The request for review must be made within ten days of proven any of the causes, before the body that issued the act.

Administrative Fact: It is the exercise of a physical activity by the Administration bodies (Eg. Building an office) Material activities, physical actions or technical operations carried out in the exercise of an administrative function and whose consequences are of a legal nature, constitute Administrative facts. As they lack the presumption of legitimacy (they are neither legitimate nor illegitimate), they cannot be annulled, if they can be subject to administrative procedures.

Route of Administrative Fact: it is a material act, the consequence of an administrative fact that does not conform to the law because either it lacks an administrative act (Eg. An office was built but nobody ordered its construction), or of a rule that endorses its procedure (Ex. A tax is charged but there is no law or resolution that supports it), or it comes from an irregular act for not observing the corresponding procedures (Ex. If the deadline for carrying out the act is 15 days and it takes 30), or because it violates a constitutional right or guarantee.

Administration Act: it is any disposition of the Public Administration tending to regulate its internal organization, these dispositions do not compete to the individuals since they are exhausted in the scope of the state. Eg Proposals, opinions, etc.

Government Act: includes all other acts of the executive branch that are not of an administrative nature but do have a legal impact on third parties, for example the MERCOSUR Treaty.

Institutional Act: it is one that has a superior effect or a special significance for the state, for example declaring a war, appointing judges for the Supreme Court, etc. If the acts carried out by the president were contrary to law, it is not prosecuted through the Judicial Power, but through Political Trial.

3. Conclusion

Understanding the nature and application of the acts of the national administration helps us to know not only what our obligations are, but also our rights as citizens. In addition, a general perspective allows us to appreciate the subjectivity of the law that has special preponderance in the national administration. The spirit of law does not lie so much in the facts as in the expression of the will of the organs. These wills should not lose sight of the purpose of the common good, since this is the goal and purpose of the state, the common good of the inhabitants of the nation. Sometimes the unilateral character of the acts can be confused with arbitrariness or authoritarianism, but we must not forget that the administrators are in their place because we choose them through the vote, therefore, ultimately,We also had our power of decision regarding the administration of our country. It is very important to highlight the importance of publication to determine the legitimacy of the acts, since a right cannot be imposed if it is not recognized as such by the individual.