El principio de legalidad en el delito de contrato sin cumplimiento de los requisitos legales

Abstract

The analysis of cases by Contracts without compliance with the legal requirements is interesting considering the large volume of people who have been processed without attending to the principle of legality. As manifested in the first article of the Political Constitution, Colombia is an organized State in the form of a Social State of Law, which means that the guarantees and fundamental rights of its inhabitants prevail. The prevalence of individual liberties as a way of guaranteeing human dignity and other human rights that have been recognized by the constitutional bloc, is evident only through respect for the right to due process, which is ultimately translated into the primacy of the principle of legality in each of the actions of the State through its public officials. The legal principles are applicable to all administrative and judicial procedures given the need to guarantee the prevalence of the purposes of the State with respect to the guarantees and protection of fundamental rights. As they are optimization mandates themselves, used to interpret the rules, they serve as jurisdictional authorities to define the solution to a specific case. With regard to the principle of legality, this is presented as a limit to the administration of justice and the exercise of public administration, with the purpose of respecting not only the specific forms of each procedure, but also the actions of public servants in the functions that by constitutional and legal mandate have been assigned to them. Despite being established in Article 29 of the Political Constitution and its close relationship with due process, the principle of legality is not especially implemented in criminal proceedings. Even when article 6 of the Criminal Law states its mandatory compliance, the reality is that in the jurisdictional exercise it is not effective, especially when faced with cases of blank criminal types, where the interpretation of the law by the investigator and of the adjudicator must be extensive inasmuch as it implies the reference to extra-penal norms. This is the case of the crime of Contract without compliance with legal requirements, as a blank criminal type that obliges both prosecutors and judges to resort to other regulations such as the civil code and law 80 to complement what the criminal law not fully configured in type structuring. Understanding issues such as the general theory of the state contract, from its origins to the very concept of a convention, the modalities in which it can be presented in the legal system, the requirements established by law for it to be valid and effective, passing Due to the constitutional study of the way in which the principle of legality is conceived, they are of vital importance to understand the consequences of initiating a process of liability, be it criminal, disciplinary or fiscal, for the crime of Contract without Compliance with the requirements. , starting from the need to apply the postulates of due process in the exercise of the functions that intervene in each one of them. The approach to the problem revolves around the need to apply the principle of strict legality to criminal proceedings carried out for violation of the crime of contracts without compliance with legal requirements. For which it is necessary to make the precision that it is a crime of alternative conduct that can be presented in three ways: Process, Celebrate or Liquidate, all of them violating the public function and the State's heritage in some cases, such as will be discussed later. Indeed, the need to carry out contracts that comply with the full legal requirements, facing the reality of the illegality of the processes, is an issue that requires determining the characteristics of legality and its purpose in the legal system. , in order to make it easier for the faltador to carry out his work. The inapplicability in the procedures of a principle as important as that of legality, generates consequences that destabilize the administration of justice, in the sense that it not only violates the fundamental rights of the accused, but also because it destabilizes legal security and confidence in the legal system, especially if you take into account all the processes that are carried out are intended to protect the guarantees of those who act, whether individuals or subjects of public law such as the State. Thus, an undue application of this principle or simple ignorance of it would generate as a consequence an affectation in the operation of the State structure because it could end up in compensation for improper operation of the administration.