Public Law Invalidity: Controversies and Control Mechanisms

Controversy Over Prescription of Public Law Invalidity

The controversy surrounding the prescription of public law invalidity stems from a lack of consensus in both legal doctrine and case law. There is disagreement on whether a law prescribed by public law becomes invalid if the prescriptive period is running when its invalidity is challenged.

Action for Annulment of Public Law

An individual who believes an administrative act is flawed and affects them can pursue an action for annulment before an ordinary court of justice with civil jurisdiction and regular procedure. The objective of this action is to annul the administrative act if it fails to meet the validity requirements outlined in subparagraphs 1 and 2 of Article 7 of the Constitution of the Republic.

Principle of Detachment in Administrative Acts

The principle of detachment refers to the inability of the issuing authority to review its own act. This is supported by the doctrine of estoppel, which considers an administrative act irrevocable for convenience or opportunity if its purpose is to incorporate a right into an individual's estate (Court of Appeals of Temuco, Judgement of May 31, 2002, rol No. 250-00).

Procedure for Auto Override

Article 53 of the Basic Law of Administrative Procedure grants administrative authorities the power to invalidate acts they have issued, subject to two conditions:

1. Prior hearing of the concerned party.
2. Action taken within two years of the act's notification or publication.

Invalidation can be total or partial. Partial invalidation does not affect provisions independent of the voided portion.

Control of Administrative Acts

Administrative acts can be controlled through various mechanisms:

• Ex Ante (Freezing) Control: Conducted before the act is finalized.
• Ex Post Control: Conducted after the act's development or validity, even after it has ceased to have effect.
• Mandatory Control: Verification of legality is a prerequisite for the act's validity.
• Optional Control: Control is discretionary for the entity or unit exercising it.
• External Audit: Performed by a body other than the one issuing the act.
• Internal Control: Performed by a supervisory or specialized unit within the public body issuing the act.
• Hierarchical Control: Exercised by administrative authority over subordinate units or officials, ensuring implementation of plans and standards.
• Administrative Control: Conducted by an administrative body.
• Judicial Review: Performed by a court of law.
• Juristic Control: Measures the adequacy of the act against current legislation.
• Control of Merit: Assesses the timeliness and relevance of the administrative act.