THE THESIS OF ADMINISTRATIVE SILENCE
The doctrine of administrative silence has been built on the assumption, that the public administration when it silences in certain circumstances, in times and deadlines, has existed and spoken in a specific sense, this means that despite not responding toThe requests, they have knowledge of that, their Tacita will is impeccable. Also adding that this figure of silence is located based on the rule of law, closely linked to the principles of legality, legal certainty and the principle of administrative efficacy;So it is estimated that it is born and based on this trilogy of principles.
When emphasizing the rule of law, there is a theory, implanted by two doctrinals: von Mohl and Von Gneist, which in German liberalism, in the middle of the last century, with a determining political vision: the realization of the German unity and the Transit of the Prussian State to the German Reich, these doctrinals, formulate a theoretical model of Rechtsstaat, which is characterized to the linking of the law and the protection of the right of individuals (Aguado, 1998), however, at the beginning, it was not imposed At all in practice, years later yes; This theory was linked to the merely absolutist monarchy, its background was not to guarantee rights, it was to control everything from the administration, so, during the second half of the nineteenth century, the thesis of the conservative jurist Friedrich Julius Sthal, on the contrary, will prevail, on the contrary conceives law as a power limitation device that as a means of rational organization of the State and normalization of their relations with the administered (Abellan, 1983). In the same synchronization, the German jurist Mayer (1949) adheres, he mentions that it is inaccurate to pretend that the Administration, where he has nothing but apply the law, fulfills a duty;The rule of law is fundamentally limited to linking the administration in what anticipates the content of its decisions and the content of the laws (Bullinger, 1993). The work of the last three jurists, was the relentless search for defense mechanisms, to stop the arbitrariness and power exercised by the administration against the individual, especially in cases where their legality was overwhelmed.
However, the approaches of the German legal culture focuses administrative law in the theory of the act, of which, one of its elements is administrative silence;Unlike the French State, which was based on the legal ETAT, theory conceived from a primary organization of the powers of the State, for the absolute domain of the public administration.
Thus, the establishment of this legal figure, “was born in France, with the right of November 2, 1864, the law of June 17, 1900 and the jurisprudence created by the French State Council, with quite broad criteria”(Carballo, 2011, P. 228).
Likewise:
According to Carballo
In Spain, the institution was known a long time ago. You show this we see in the Royal Decree of March 23, 1886, in the Law of April 5, 1904, in Art. 6. ° of July 19, 1911. But its consecration, in general, does not take place until 1924, in the local sphere, with the statute of March 8, whose criteria then follow the provincial statute of 1925, the municipal law of October 31, 1935 and,,Finally, in the sphere of the central administration, the law of March 18, 1944.
And putting García de Enterría’s criteria, and being emphatic when pointing out the cracks of the guarantees system, he refers that just for this reason, the origin of the administrative silence, was already established in France for the first time, by law previouslyDescribed in 1900.
But it happens, which does not completely conclude there, since after its appearance in France;Within the historical vestiges, administrative silence suggestively arises years later with the famous long.
In this way the following is indicated:
Aguado (1998), mentions that:
The political context in which this dogmatic arises is part of periods that, under parliamentary appearance, show clear authoritarian and conservative trends that would lead to a system crisis;Subsequently, in the thirties, in the interwar period, administrative law, although it maintains its authoritarian character, wants to give the image of promoting citizen guarantees to obtain the collaboration of private activities of public interest of interest.
From this prerogative, Bobbio (1987) warns, that Italian fascism is characterized by a vestige of legality in the behavior of public administration.
Undoubtedly, the genesis of administrative silence has been quite emblematic, in the sense of limiting the administration in its actions, since years ago the legality has been a totally fascist regime as Bobbio mentions, for this reason, the administrative silence hasAs an objective, break those barriers and also grant legal certainty as long as guaranteeing rights, within the actions of the public administration.
Subsequently, in terms of possible procedural defects of administrative silence, it is prevailing that the courts create jurisprudence, for the substantiation of a much broader doctrine, breaking doctrinal and procedural stereotypes, giving each one what it deserves, both to the public administration andto the individual. “For example, these express resolutions of the administration dictated after the silence produced by the course of the term may be considered as irregular administrative acts, but they should never be qualified as void legal acts."
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