Disciplinary Law Of Society And Prohibitions

Disciplinary law of society and prohibitions

Disciplinary law is responsible for determining the obligation level of the public servant, which is not equal to that of individuals;since the public function is exercised to preserve the general interest;At the head of the public servant there are duties and prohibitions that are in the Constitution and in the law, this makes any action that is not aimed at fulfilling the essential duties of the State and the entrusted function brings to whom it breaches sanctions that have criteriadetermined.

In disciplinary law, principles have been determined, which help identify the affectation of the functional duties of public servants, among them we find the principle of substantial illegality;principle we want to expand to understand its functionality in disciplinary responsibility.

Thus, it is convenient to begin by determining that it is substantial illegality, according to Law 734 of 2002 – Unique Disciplinary Code, Article 5 “The fault will be unlawful when it affects the functional duty without any justification”, but it is the doctrine that structures us thisprinciple through three elements such as: antijuricity, functional duty and justification of behavior.

When these three elements join and defined each one can determine the following aspects, the behavior of the public servant is sanctioned when the duty affects the functional obligation, but this affectation should not have any justification, there is the opportunity to verify that nosituations that demonstrate the execution of typical and unlawful behavior concur;This breach is observed at the time that the purposes of the State are broken, which as we said by starting the text, the general interest would be harmed, the public servant is a tool to make possible the objectives of the public service, which isan obligation and responsibility that the individual and the State delegate to achieve its purposes.

Therefore, substantial illegality is aimed at the disciplinary imputation processes where the public servant broke the duties left in charge, duties that were given through the regulations and the law, that is why the administrative function entails great responsibility. The breach of the functional duty of the public servant is not excusable when he deviated from his function, when he alleged ignorance because his duty is born to train and update himself in the area that works, “there is no disciplinary lack if there is no real violationand effective of functional duty and, additionally it cannot be considered that as long as the violation of duty remains in force, the disciplinary offThe damage caused in a real and effectively mitigates, perhaps this is the reason that the faults in disciplinary matters are classified as slight, serious and very serious;Their sanctions range from suspension, dismissal, disability, fines and reprimands. The administrative activity at the head of public servants is a function that should not be taken lightly, that by their provisions and where they come from it is necessary that it be carried out in the best way, “ARTICLE 123. Public servants are the members of public corporations, employees and workers of the State and their territorially decentralized entities and services. [1: dogmatic analysis of the principle of substantial illegality in Colombian disciplinary law]

Public servants are at the service of the State and the community;their functions will exercise in the manner provided by the Constitution, the Law and the Regulations.

The law will determine the regime applicable to individuals who temporarily perform public functions and regulate its exercise ”Political Constitution of Colombia, when the behavior is contrary will cause damage, which can be inferred that a legally protected good will be violated.

At the same time, it should be clarified that the administrative function is not a regime only of sanctions and offenses, but that as well as the Constitution, the law and regulations defend the administrative function, also shelters those who are part and make it possible tomake the purposes of the State, only trying that this function is carried out in the best possible way.

Substantial illegality can be defined as that behavior that, being in violation of a functional duty and being deployed by a disciplinary subject, does not imply the production of a harmful result. In this sense, the substantial illegality of a disciplinary lack is defined by the simple affectation to the functional duty, but not, by the generation of damage, as if it is preached in criminal law.

Faced with the application of the principle of substantial illegality there are positions for and against, to those who claim that it should not be applied because it opens the door to be punished simply by the violation of the functional duty without any justification, that is, without determining or establishing that it generated injury or damage to the good protected by the administration to proceed with the respective sanction; On the other hand there are those who affirm that the antijuricity in disciplinary matters is not focused on the analysis of the injury of a legal good, but is analyzed from the affectation of the duties of the service, that is, that in disciplinary matters there is no talk of Actions that undermine legal assets, there are talks of actions that affect the duties of the functional service, so that a disciplinary offense is defined as any breach by the officials to the duties, obligations, prohibitions or disabilities and incompatibilities established by law.

In this regard, the Council of State, in Judgment 394 of 2012, has stated: “Estimate the Chamber, that the principle of substantial illegality must be aimed at the assessment of antijuricity of disciplinary behavior, with the purpose of establishing whether the server’s behaviorpublic corresponds to the duties that the Constitution and the law have imposed on the nature of its position, and thus determine if its performance is consonant with the functional duty and with the purposes of the State ”.

Now as well as warned in previous paragraphs, it cannot be forgotten that disciplinary law ensures the correct performance of the public function, hence the substantial illegality accrues of the only breach of functional duty that was assigned to the disciplinary subject to the position.

In this sense, the Constitutional Court was pronounced in Judgment C 089 of 2006 by pointing out: “From the first budget mentioned the imperative for the legislator to contemplate as disciplinary offenses only those behaviors that have potential of affectation of the legal interest that the disciplinary regime protects: The effective, efficient and correct exercise of public function. All behaviors are excluded from this area, which even being reproachable in other social or regulatory contexts lack relevance, or they are harmless to the interest of preserving the public function. It is the infraction to functional duty, in its expressions of strict compliance with the functions of the position, obligation to act in accordance with the Constitution and the law, and guarantee an adequate representation of the State, which legitimizes from the substantial point of view thedisciplinary conmination of behavior."

According to this, "the substantial disciplinary illegality must be understood as the substantial affectation of functional duties, provided that this implies ignorance of the principles that govern public function" (Ordoñez, 2009). And this principle is determined in the Colombian legal system taking into account the affectation of duties and not of legal assets – which is constituted as the fundamental aspect to differentiate the disciplinary law of criminal law – event in which the breach of theduties of the position of the respective officials and the transgression of the principles enshrined in the 1991 Political Constitution regarding the exercise of public function (Serrano, SF).

This principle becomes the basis of disciplinary responsibility and it has to investigate whether the public or public servant with public functions stop fulfilling legally established obligations and only from there a disciplinary sanction can be generated. Then, typical behavior will be unlawful when it affects functional duty as a legal asset of the State protected by disciplinary law, without a justification to support the action or omission.

Likewise, for a disciplinary offense to be configured, the behavior must be unlawful, which means not only the formal breach of duty, but that it is necessary that the violation of this is substantial. This means that the action or omission of the public servant must lead to a material, real and effective affectation of the proper functioning of the State and, therefore, of the public service.

Therefore, it is not enough for the public servant to miss its functional duties so that there is a disciplinary offense, as long as it is necessary that the action entails a true affectation of the public function entrusted to the disciplined. In this regard, if the illegality was not substantial, it is not possible to declare disciplinary responsibility, the Second Section of the State Council clarified.

Therefore, it can be concluded that,

Disciplinary law is the set of substantial and procedural legal norms that are intended to impose on a specific community a correct act of acting. This set includes obligations, prohibitions, disabilities and incompatibilities. By missing a duty or compliance with a behavior, disciplinary sanction must be followed up. And meanwhile, typicity and unlawfulness are inscindible and its assessment is done jointly, so it is said that behaviors in this area of law are typically unlawful (Daza, SF).

Failure to comply with functional duties is the foundation of disciplinary responsibility, since this preferentially protects the morality of the administration and therefore focuses on verifying the fulfillment of the duties of the position by the respective officials.

It could not be allowed to sanction behaviors simply and plainly due to the violation ‘to the affectation of the functional duty without any justification’, when many times the injury or damage to the precious good of the administration is not determined or they could simply be takenas non -compliance with functional duty the overreach of the public servant on the occasion of behaviors that benefit the state entity, as would be the case of arriving one or two hours before the regulatory work day or leave a two hours later.

References

• Daza, m. (SF). THE LEGAL NATURE OF DISCIPLINARY LAW ¿Autonomous and Independent? northern University. Barranquilla, Colombia.
• Serrano, J. (SF). Dogmatic analysis of the principle of substantial illegality in Colombian disciplinary law. Catholic University of Colombia.
• Ordoñez, a. (2009). Disciplinary justice. Of substantial to the substantial illegality of illegality. Attorney General’s Office, Bogotá.