La efectividad de la acción de repetición en el ordenamiento jurídico colombiano, problemáticas y desafíos

Abstract

In this work is studied the genesis of the action under a right of recourse. For which it will make mention to the "theories on the responsibility for the administration and its officials, continuing with the "responsibility of the State officials and its agents in Colombia", information related with preconstitutional jurisprudence, since through pronouncements of the Supreme Court it began with the thesis of fails in service, compensation and subsequent repetition of the State against the server who committed willful or gravely culpable, by which was convicted; analyzing, of course, if the action was made under some defense of responsibility. With regard to the Constituent 1991 instance in which this mechanism was stipulated, documents "National Constituent Assembly" which refer to Article 90 above, of which mention will be made the Papers, referring to that effect to constitutional Gazette . With regard to the doctrine of this contentious action is mostly theoretical material before the issuance of the current administrative law (Law 1437, 2011) and also the creation of the "National Defense Agency State Law" (ANDJE), hence the material has not been confronted with the social and legal edge, is this as inert letter lacking any systematic applicability hub that will be analyzed in the work to be performed, reinforcing it with statistics on actions for recovery the State Council Administrative Court of Cundinamarca Administrative courts and the capital city, also a sample (sentences) in this action pointing look like why is not repeated, the amount to be paid, etc. is analyzed; and subsequently by interviewing appropriate personnel in the matter should clarify methodically on the shortcomings and possible solutions. The above mechanisms, means and / or methods gave a dramatic reality ineffectiveness of recourse by a number of substantive, procedural factors, eligibility of officials who apply, lack of objectivity of the conciliation committees in order are many endogenous and exogenous components, so a consolidation of government policy on the matter and subsequent support from the legislature, because a legislative strengthening to respond directly to reality required is necessary this action. No strangers to this Dantesque protection of public funds were raised about potential solutions taking into account assessments and personal writers who write them, such as previous knowledge, preventive feasibility analysis, effective application of appeal warranty strengthening judicial congestion program, among others. Apart from the foregoing is plain that the action replay is ineffective, has not fulfilled the purpose for which it was created and given the needs of the nation, is taking priority in the matter, reframe procedural and substantive procedural aspects.