Vicisitudes en el procedimiento administrativo sancionatorio en el caso de los profesionales de la contaduría pública. Consideraciones a propósito de la facultad sancionatoria en materia disciplinaria

Abstract

Jurisprudential developments determine that ethical standards establish responsibilities, not only in the case of the individual exercise of the profession, but also when executed collectively through professional organizations. Accordingly, this paper examines and analyzes the sanction implications that arise as a consequence of the sanction procedure that the Disciplinary Tribunal of the Junta Central de Contadores (JCC).

While it is true that this is the highest national body to which ethical-disciplinary control has been conferred on accounting professionals, the legal reality shows that the disciplinary court of the JCC imposes disciplinary sanctions beyond the time limits set out in Law 1437 of 2011 (CPACA) for the exercise of the sanctioning power, in such a way that, in some cases, the administrative sanction act is provided and notified outside of the prescribed periods since Article 52 of the CPACA, the rule to be applied by legal reference in accordance with the provisions of Law 43 of 1990, as well as in view of the normative integration that is established at the jurisprudential level as ruled in judgment C-530 of 2000.

A major problem is evident in this investigation when the aforementioned disciplinary court of the JCC imposes any of the penalties provided for in articles 23 to 27 of Law 43 of 1990, and does so outside the time limits for exercising the power of sanction, justifying its action in the application of Article 638 of the Tributarie Statute (TS), the latter rule is not considered as referral by any other or normative integration, which means that it would not apply in disciplinary matters.

Since this issue is not regulated by the accounting code of ethics, the mandate of Article 52 of Law 1437 of 2011 must be applied, by express reference and normative integration (and jurisprudence), on the understanding that this exercise (of the sanctioning power) must be exercised within a period of three (3) years which are counted from the commission of the act (and independently for those of successive tract), also during which time the administrative act of punishment must be pronounced and notified in a personal way, otherwise the phenomenon of the expiry of the sanctioning power will operate.

In summary, the problem is even greater when the disciplinary court of the JCC profits (and reports) multiple administrative acts that are punishable outside the aforementioned three years established by the CPACA, giving room and application to what in this opportunity we have allowed ourselves to call the "theory of doors inward", whereby the exercise of the power of sanction is extended to 5 years with respect to the commission of the conduct (limitation), a theory that actually causes damage to accounting professionals and allows us to think about the configuration of an administrative operation that can be demanded before the Administrative Jurisdiction.