El precedente judicial y el principio de legalidad penal en la contratación pública colombiana
This study aims to analyze the essential elements of the public contract, as a nucleus of legal protection, in order to ascertain whether judges are allowed to define, by interpretation, such elements without violating the principles of strict legality and legal reserve. Furthermore, this study also...
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| Format: | Article |
| Language: | Spanish |
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2015
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6713587 |
| Source: | Academia & Derecho, ISSN 2539-4983, Nº. 10, 2015, pags. 91-118 |
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| Summary: |
This study aims to analyze the essential elements of the public contract, as a nucleus of legal protection, in order to ascertain whether judges are allowed to define, by interpretation, such elements without violating the principles of strict legality and legal reserve. Furthermore, this study also analyzes whether the preservation of the principle of legality of public contracting is dogmatically adequate. In development of the research problem, the jurisprudential interpretation of the prohibited conduct was examined in relation to the tendency of open call for tenders –during the last three years-, which led us to conclude that the threat of punishment has not fulfilled its deterrent effect (negative general prevention) nor that of the positive general prevention, since the bad practice of circumvent the contract procedures turned out to be on the increase. For this reason, it is necessary to reconsider the current criminal policy and set up new criminalization alternatives in the context of economic globalization |
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