La aplicabilidad de la ley Zidres constituye un despojo legal al derecho constitucional de campesinos ocupantes y poseedores de buena fe de terrenos baldíos para acceder a la propiedad de la tierra

Abstract

From now on, throughout this article, we will deal with the emerging problem which joins innumerable ones that have affected Colombian peasant farmers in the last 210 years of history. The Government of President JUAN MANUEL SANTOS CALDERON (2014-2018) on the initiative of the Executive, the Congress of the Republic approved Law 1776 of January 29, 2016, known as the ZIDRES Law. In the mentioned statute, the Government intends to generate development and investment in tertiary road infrastructure, technological modernization in remote areas of the country, improve employment rates and reduce the poverty and inequality gap for Colombian farmers. Perhaps after many promises not fulfilled by the national presidents on duty, who during campaign reiterate over and over the urgent need for a structural LAND REFORM; whose main aim is the agrarian worker and a means of progressive access to land as an instrument of human dignity and sustainable development. Unfortunately, the ZIDRES Law is not meant to carry out that long-awaited dream of thousands of peasant families, who see and feel the governmental abandonment aggravated by the indifference of the urban society of Colombia. It should be pointed out that it has been complex for the final conclusion of the article identify the provisions of law 1776 of 2016 because who wrote it violates the constitutional guarantee of the peasants to have access to private land ownership (articles 58 and 64 of CP). For this purpose, articles 13 are taken with their paragraph 1 and paragraph 2, article 14 and article 16 of the ZIDRES law. Subsequently, a conceptual and jurisprudential analysis of the contractual figure of the Concession, Lease, and surface area contract, the legal support and the constitutional reproaches are made.

So, to provide the reader with a closer view of the legal reality applicable in our country, by analogy and legal reference, the Civil and Commercial Code is used to understand the essential elements of the lease and real surface contract. In the same way, Law 80 of 1993 is brought up and other provisions such as the legal framework of the concession contract and its variation in terms, the ones that concern the term of execution of the agreement to the matter that is mining, port, telecommunications, road ... etc. warning that it is only done for comparative purposes. It continues with the position adopted by the Constitutional Court and the Council of State to establish exequibility in relation to automatic, successive, and indefinite extensions in specific contracts including concession contracts. Once the legal framework and jurisprudence relevant to the ZIDRES Law have been detailed, the lease, the concession, and the surface area will proceed to an open and objective guideline agreement on the result of the investigation, explaining the foundations that they support the exequibility of law 1776 of 2016 in the opinion of the high constitutional court.