La Acción De In Rem Verso Frente Al Enriquecimiento Sin Causa De La Administración Pública.

Abstract

What constitutes the strength is also the weakness of the in rem verso action; Since it is an action that seeks to implement the general principle of not unjustly enriching oneself at the expense of another, it lacks a legal norm that regulates it and establishes the cases to which it should be applied. Therefore, although it is understood that it is an action of a residual nature, it seems increasingly restricted in its application.

It is somehow easy for the exercise of this to establish a link between enrichment and impoverishment, as well as the absence of a cause thereof; However, it collides with the wall imposed by the formality of the contract deed, which is also oriented towards the recognition of another principle which is that of transparency in public management. Therefore, it gives the impression that transparency is prioritized, but other closely related principles such as planning are unknown.

Objective good faith in the fulfillment of the obligations of the contract cannot be understood with the formality of the writing, since as analyzed in this work, it is also necessary for public officials to be responsible for the public or private statements they make in relation to with the effects that may arise from them and that may cause financial detriment to individuals. In this type of case, the figure of the quasi-contract is of importance, since the formulation of acts and obligations is observed, which are caused by the legitimate expectations that arise from the statements noted above.

We believe that greater emphasis should be placed on the expression “among others” incorporated in the ruling, to the extent that only then could a good portal be opened to improve access to justice in the face of this type of claims, and that it is more in line with the tendencies of modern constitutionalism to provide the greatest number of actions against actions or omissions of the State that may cause damage, and which fits perfectly with the general responsibility clause of the State provided for in article 90 of the Charter Policy.

Last but not least, we consider that the Council of State should change its jurisprudential position in relation to the application of the action of in rem verso, not thinking about making the procedural duties of the parties involved in the litigation more flexible, but rather about offering the greatest number of options to guarantee the balance of benefits and legal security of the interested parties and respect for public morality.