Cause Fernández Arias, Elena et al v. Poggio, José.
Theory on the division of state power.
As a first measure include the doctrine of separation of functions of power has its origin in France, in 1748 when it appears the book "The Spirit of Laws" by Montequieu, in the same recognition as fundamental for the establishment of a system of checks and balances, thus achieving a balance between the various bodies that wield power, usually and naturally tends to abuse it. That is why our system gives each branch a specific field, without denying the light of reality that can be exercised with certain specific limitations other functions that are not ultimately the main concern them, so for example the executive branch has given function but through various acts is active courts (administrative courts) and legislation (with the possibility of veto, etc..), so does any of the other two branches (power legislative and judiciary).
As this is very significant the intrinsic meaning of the decision cited by which the Supreme Court of Argentina decided to declare the unconstitutionality of laws 13246, 13897 and 14451 who organized the Joint Chambers rural sharecropping tenancy and find same violation of Articles 109 and 18 of the Constitution, in response to:
1. Not to allow judicial review of administrative decisions
2. Not to meet the fundamental requirement of "sufficient judicial control"
We emphasize because it speaks of sufficient judicial control, this is so because we can not ignore reality and therefore have imposed requirements or limits to govern the judicial activity of the Public Administration, together with the requirement are also named: that must come from a law in the formal sense, it must meet the suitability and specification of the subject ( as in tax matters), with guarantees to ensure the independence of the same, that the court keep up the Judiciary to review the final allocation decisions of a judicial nature. Through
said the court decision becomes clear that constitutes "sufficient judicial control," highlighting the following: ¨
recognition of the right to bring litigation appeal to the ordinary courts, since the laws declared unconstitutional only made possible the extraordinary appeal to the Supreme Court of Justice of the Nation, through the mechanism established under Law 48 that is visible is a really limited and extraordinary only deals with federal issues. ¨
denial to the administrative courts the power to issue final decisions as to the facts and the law at issue.
the foregoing it is clear that it is essential to the granting of subsequent appeals to the judges of the judiciary, but enough, or not to be given as in the ruling, in which there is control but insufficient, be the special appeal of this characteristic and limitation lacks sufficiency. The judicial control must possess to be legitimate, as true enough, it says Willoughby "... would certainly be declared unconstitutional a law that aims to administrative hands the final decision of a dispute between individuals. "
should be noted that we determined the constitutionality of laws on the grounds that there was judicial control through special appeal but this was not enough , so we can read words that match the accepted theory of administrative courts, being this a necessity and a reality of evolution Argentina, these are aimed at more effective and prompt protection of public interests, including the need to point out that the principle of separation of functions is appropriate to contemporary life, always tolerate and fitting into the Constitution, adjusting at all times the provisions it contains. Undoubtedly, the need to safeguard and respect the Constitution, should be seen in history that the worst atrocities the human being, their right and dignity as such began with the smallest deviation from its precepts.
For all this, I emphasize my personal opinion to agree with the creation of administrative courts, provided respecting the right of the matter, this means, according to the specialty, complexity of the subject, serving in a real way for greater speed and immediacy of issues that the courts would be late and mediate, of course respecting the judicial control enough (to guarantee fundamental), thus ensuring the division of functions between the bodies exercising state power. Each of these exercises and has its own sphere of action, without being entirely separate, combine and complement each other, ie they are coordinated.
We can say that the Constitution in Article 109, closed judicial functions by the executive branch, but not the courts, so we understand that an administrative tribunal must be guaranteed, and is therefore what judicial review and judicial gender as their own species and only the judiciary. For authors like Lascano essential to characterize the judicial function is the fact that I act as a third state fair, being in itself independent. Whenever final rounds in the absolute necessity of any check post in sufficient quantities to ensure compliance with the separation of powers envisioned by many constitutional provisions.
Theory on the division of state power.
As a first measure include the doctrine of separation of functions of power has its origin in France, in 1748 when it appears the book "The Spirit of Laws" by Montequieu, in the same recognition as fundamental for the establishment of a system of checks and balances, thus achieving a balance between the various bodies that wield power, usually and naturally tends to abuse it. That is why our system gives each branch a specific field, without denying the light of reality that can be exercised with certain specific limitations other functions that are not ultimately the main concern them, so for example the executive branch has given function but through various acts is active courts (administrative courts) and legislation (with the possibility of veto, etc..), so does any of the other two branches (power legislative and judiciary).
As this is very significant the intrinsic meaning of the decision cited by which the Supreme Court of Argentina decided to declare the unconstitutionality of laws 13246, 13897 and 14451 who organized the Joint Chambers rural sharecropping tenancy and find same violation of Articles 109 and 18 of the Constitution, in response to:
1. Not to allow judicial review of administrative decisions
2. Not to meet the fundamental requirement of "sufficient judicial control"
We emphasize because it speaks of sufficient judicial control, this is so because we can not ignore reality and therefore have imposed requirements or limits to govern the judicial activity of the Public Administration, together with the requirement are also named: that must come from a law in the formal sense, it must meet the suitability and specification of the subject ( as in tax matters), with guarantees to ensure the independence of the same, that the court keep up the Judiciary to review the final allocation decisions of a judicial nature. Through
said the court decision becomes clear that constitutes "sufficient judicial control," highlighting the following: ¨
recognition of the right to bring litigation appeal to the ordinary courts, since the laws declared unconstitutional only made possible the extraordinary appeal to the Supreme Court of Justice of the Nation, through the mechanism established under Law 48 that is visible is a really limited and extraordinary only deals with federal issues. ¨
denial to the administrative courts the power to issue final decisions as to the facts and the law at issue.
the foregoing it is clear that it is essential to the granting of subsequent appeals to the judges of the judiciary, but enough, or not to be given as in the ruling, in which there is control but insufficient, be the special appeal of this characteristic and limitation lacks sufficiency. The judicial control must possess to be legitimate, as true enough, it says Willoughby "... would certainly be declared unconstitutional a law that aims to administrative hands the final decision of a dispute between individuals. "
should be noted that we determined the constitutionality of laws on the grounds that there was judicial control through special appeal but this was not enough , so we can read words that match the accepted theory of administrative courts, being this a necessity and a reality of evolution Argentina, these are aimed at more effective and prompt protection of public interests, including the need to point out that the principle of separation of functions is appropriate to contemporary life, always tolerate and fitting into the Constitution, adjusting at all times the provisions it contains. Undoubtedly, the need to safeguard and respect the Constitution, should be seen in history that the worst atrocities the human being, their right and dignity as such began with the smallest deviation from its precepts.
For all this, I emphasize my personal opinion to agree with the creation of administrative courts, provided respecting the right of the matter, this means, according to the specialty, complexity of the subject, serving in a real way for greater speed and immediacy of issues that the courts would be late and mediate, of course respecting the judicial control enough (to guarantee fundamental), thus ensuring the division of functions between the bodies exercising state power. Each of these exercises and has its own sphere of action, without being entirely separate, combine and complement each other, ie they are coordinated.
We can say that the Constitution in Article 109, closed judicial functions by the executive branch, but not the courts, so we understand that an administrative tribunal must be guaranteed, and is therefore what judicial review and judicial gender as their own species and only the judiciary. For authors like Lascano essential to characterize the judicial function is the fact that I act as a third state fair, being in itself independent. Whenever final rounds in the absolute necessity of any check post in sufficient quantities to ensure compliance with the separation of powers envisioned by many constitutional provisions.
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