La prerrogativa de cobro coactivo: análisis a partir del derecho fundamental al debido proceso

Abstract

The prerogatives allow the administration to act on its own in defense of the general interest, which have been recognized in the coercive collection process through which the collection of obligations in favor of the State is advanced. The foregoing implies the recognition of unilateral powers to the administration that allow it to manage the recovery of resources that are owed in favor of state entities for non-payment of taxes, sanctions, withholdings, fines, among others. That is why, through these prerogatives, the administration imposes obligations on the co-associates, thus presenting a discussion scenario regarding the impact that it may have on the right to due process of the administered. One of these prerogatives is that of coercive collection, through which the administration seeks the payment of the obligations owed in its favor, without the need to go to the ordinary jurisdiction, through an expedited process, in which it holds the quality of judge and part. At this point, a problem has arisen around the role of the administration, which through its officials carries out the coercive collection procedure since there have been shortcomings in particular events of this process, which are the notification of the executive title, the declaration of the statute of limitations. , the determination of enforceability of the administrative act and the guarantee of an adequate recourse before the administration to exercise its right of defense and fully materialize the postulates of due process.

It is in this measure, it is proposed to return to the judicial process of coercive process that was raised until Decree 2503 of 1987 because if the administration wants to recover monies in its favor that are essential to fulfill its purposes, it would be essential to present a process before a third party called Judge , that it is autonomous in its decisions and that it develops it quickly and efficiently through a resolution that makes it a res judicata with the maximum of recognized constitutional guarantees, since, as currently contemplated, this process is slowing down the collection of obligations because it does not analyze the cost-benefit of its activities. The solution to these problems can be identified in the light of due process as the central axis of the actions, because, although it is not found in an exhaustive way, it is a fact treated by jurisprudence that also constitutes a fundamental axis of the administrative process. Although this administrative process is intended to comply with the purposes of the State. It must also be recognized that it is considered among the duties of the State to guarantee the fundamental rights and constitutional principles of citizens and this is achieved through the development of adequate scenarios for the defense of their rights and the defense of the general interest on the individual at the same time . This concern has also spread to different Latin American countries for whom the development of guarantee scenarios for their administrations has been fundamental. In this sense, two trends have developed, namely: in the first case, there are countries in which the judge is the only one who can compel the obliged to comply with the obligation and in the second case, the execution of the administrative act is proper of the administration.