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Administrative Silence Positive

Administrative Silence Positive: The positive silence is the legal figure by which the lack of pronouncement by the authority, within the time it has to do so, causes the acceptance of the request of the administrator. Its justification is evident: the inaction of the administration can not harm the legitimate right of people to know the answer they are looking for. The right replaces this inaction by generating the administrative act that accepts the request. For Marco Morales (2011), the public administration is legally and constitutionally bound to pronounce itself in relation to any request made by citizens; Faced with the omission of this obligation has been conceived the need to regulate a mechanism that allows citizens to overcome the lack of response to their requests, with the institution of administrative silence, which is a solution to give an effect to the lack of attention of the petitions, claims and resources presented by the people to the administration, in front of the public power, for that reason the acts and administrative facts are given effects; it is the authority that has the obligation to respect the rights of the people, and it is the administrated who have the right to exercise their right; but there is an opportunity for the exercise of the right, in the face of the lack of pronouncement by the public authority. The law gives a legal effect to the fact, for the exercise of rights.

For Guido Escobar (2016), the administrative silence is a legal figure, gives effect to the lack of pronouncement, because only the administration can provoke the administrative silence not the private one; if he does not exercise his rights under the terms of the law, his right to sue expires.   The effects of administrative silence are born by the lack of a public decision in a certain time, this from the dimension of the administered, the effects on the administration, is that the legal impossibility of pronouncing on an event is generated because the time has passed to do it , then it would lack competence to pronounce itself, to that lack of exercise of the right within the time it is known as expiration.

For Patricio Secaira (2008), the regulated administrative act is one that can only be issued in compliance with the procedures established in the pre-existing legal norm; since this, prior to the issuance of the act, adjusts the behavior of the public body owed by the competition; it refers to the specific exercise of a public power in the hands of an Authority that is the one that represents the Administration, in a specific case within the time determined in the law and subject to the conditions established therein. The prescription is not applicable to the administration because the powers that are proper to the power of the State are permanent and eternal; on the other hand, expiration is applicable to the administration because it has to do with the will of the competent authority whose actions are regulated by the legal system.

The legal norm establishes rules that must be fulfilled so that the act of public power is issued and has effective value. For example, to dismiss an official, the administrative summary must first be carried out. These are contested acts in judicial proceedings.  

Article 28 of the Modernization Law … established the need for a certification issued by the public official involved, which records the expiration of the term to answer. The legislator should have noticed the almost impossibility of obtaining such a document from the official who, when issuing it, was confessing a lack of action on his part, which would have administrative implications and even of a criminal nature. This demand provoked controversies in the application of the rule, which were translated, at least initially, into contradictory judgments by the administrative judges (Derecho Ecuador).We will be glad to provide advice in the areas mentioned. If you require more information, do not hesitate to contact us. here

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