Representation to litigate Valid is necessary to prove Grant Colleges

SUMMARY:

1. Resolutions regarding comment .- 2. Comment .- 2.1. Sources of law .- 2.2. Primacy of law over other sources of law .- 2.3. Positivists .- 2.4. Background .- 2.5. Area of ​​knowledge .- 2.6. Rules applicable .- 2.7. Civil law .- 2.8. Uncodified law .- 2.9. Public Law .- 2.10. Private law .- 2.11. Social law .- 2.12. Recitals of the resolution revoking the appealed view .- 2.13. Critical to the resolution of view .- 2.14. Economic implications .- 2.15. Disincentives to investment in the market .- 2.16. Incentives to litigate uncredited representation .- 2.17. Dimensional theory of law .- 2.18. Legal uncertainty in the sentence of view .- 2.19. Unenforceability of the sentence of view .- 2.20. Powers valid for litigation under the Civil Procedure Code .- 2.21. Double registration of trade unions .- 2.22. Roman Law .- 2.23. Comparative Law .- 2.24. Rating registration of legal documents .- 2.25. Criminal implications .- 3. Conclusions .- 4. Suggestions .- 5. Legislative proposals .- 6. Sources of information .-

1. RESOLUTIONS RELATED TO COMMENT

The text of the resolution of first instance is the following:

Moyobamba, February 14

The year two thousand six .-

For the judge, doctor Jesus Torres Fernando Manrique, the constitutional process on Administrative Enforcement Act brought by the FENTASE REGIONAL SAN MARTIN, represented by Edwin Rojas Sifuentes and other, against the Regional Bureau of Education of St. Martin and others that supported, processed according to its nature, means of defense proposed by the defendants, was sentenced upheld the complaint, as it appears on pages 195 to 207, but see the Constitutional and Social Chamber of the Supreme Court declared null order made new sentence, and

WHEREAS:

First .- That pursuant to Article Two of the preliminary title of the Peruvian civil procedure code 1993, the judge is the director of the process, which in this stage corresponds ruling issued in accordance with the law, evidence acted in cars and in accordance with the Peruvian legal system, consistent with the third article of the preliminary title of the Peruvian constitutional procedural code, two thousand four;

Second .- That in folio seventy-four to seventy-nine EDGAR ROJAS TUESTA SIFUENTES and SECOND SAILING own right and on behalf of the education sector administrative officers of the San Martin region, grouped in the REGIONAL EXECUTIVE COMMITTEE OF THE FEDERATION OF WORKERS ADMINISTRATIVE EDUCATION SECTOR - FENTASE REGIONAL - SAN MARTIN for a total of 1445;

Third .- In this vein the plaintiffs sue in their own right and representation, which must show representation, two alternative methods that are the agreement entered in the register of legal persons or the agreement in the minutes with the requirements of law;

Fourth .- That being so, so applicants must require the submission of the certificate of validity of power or the agreement signed with the formalities of law, that the certificate of validity of power demands and legal persons registered for private legal persons requires the agreement signed with the formalities of law;

Fifth .- That the doctrine is almost peacefully accept the conditions of legitimacy of action are to work, interest and willingness to work law, but in this case lacks the legitimacy to act, why can not determine the names of those who are litigating, which has caused the process to continue haphazardly without being able to determine the exact name of the material parts, so it should be the relevant measure;

Sixth .- That the suit was ill-conceived and poorly described by the statement to be issued no statement inhibitory and merit;

Seventh .- The award of merit is the ruling on the merits of the case and the sentence is inhibitory pronounced without touching the merits, leaving between seeing a missing status of the action;

Eight .- That according to the end of the last paragraph of section one hundred twenty-one by the sentencing judge can pronounce exceptionally on the validity of the procedural validity of the relationship;

Ninth .- That being so, it is possible that this statement is declared inadmissible, that lack the status of the Action entitled legitimacy to act, whose absence prevents a valid ruling on the merits;

Tenth .- In this record has not been able to determine fully the names of the material parts, which threatens the security of the processes, and taking into account that the process must provide sufficient security to determine who is litigating and also that every process must be a due process should be declared inadmissible demand that has not been granted authority to the plaintiffs and litigants are unique and SEGUDNO EDWIN ROJAS TUESTA SIFUENTES VELA but can not litigate on behalf, because they have not granting accredited colleges, and it can not be determined to assist them the right to be demanding, which should be tested in the manner prescribed by law;

Eleventh .- That being so, there is risk to the defendants that if they win the process, res judicata not opposable against the members of the FENTASE, because they have not given authority to litigate on their behalf with the legal formalities ;

Twelfth .- That this being so demand should be declared inadmissible, and allowing himself to save the right of stakeholders to enforce it in the form and manner of law;

Thirteenth .- In the process there are no minimum guarantees for the existence of due process, which is necessary and urgent for the benefit of the litigants that the process start again but with the formalities of law, ie powers and stating that they are entitled;

Fourteenth .- The Ministry of Finance has proposed the objection of lack of standing of the defendant, which must be declared founded because the ministry must be understood in this process, since it is not part of the substantive legal relationship ;

Fifteenth .- In regard to the objection of lack of standing the plaintiff must plead founded because it was not credited plaintiffs' right to file the application;

Sixteenth .- In regard to the exception of underrepresentation of the plaintiff must plead not founded by certificate of validity has been presented, nor power agreement is not registered with formalities law, in case you do not run a legal person registered;

Seventeenth .- In regard to the objection of failure to exhaust the prior must be declared unfounded because it is not necessary to exhaust the prior in this case alleged or raised, the exception in this regard must be rejected;

Eighteenth .- In regard to the invalidity of action is necessary to mention that it is impossible to grant the request because it has not proved the existence of such invalidity, in this sense the process should continue, because it has not been injured for annulment absolute;

Nineteenth .- That the costs and expenses are borne by the unsuccessful party, unless you have had cause to litigate as worthy of consideration in this case;

FAULT:

Upheld the objection of lack of standing of the Ministry of Economy and Finance, founded the exception of lack of standing under-representation of the claimant and the claimant; INFUDADA except for lack of exhaustion of the previous requested the annulment INADMISSIBLE by the Ministry of Economy and Finance, Compliance INADMISSIBLE demand filed by EDWIN ROJAS TUESTA SECOND SAILING SIFUENTES and filed its own right and representing the education sector administrative officers of the San Martin region grouped in the Regional Executive Committee of the Federation Administrative Workers in the education sector - SAN MARTIN REGIONAL-FENTASE a total of 1445 workers, without costs or costs .- .- NOTIFY

Jesus Torres Fernando Manrique

Judge Holder Joint Moyobamba.

The text of the resolution of second instance is as follows:

Moyobamba, six of

April two thousand six.

Seen, in open court, after hearing the oral report of the sponsoring attorneys as certified above, the appeal filed by the plaintiffs at page two seven hundred eighty-four folio against a sentence of two thousand seven hundred sixty-four, date February 14 this year, which Falla upheld the objection of lack of standing of the Ministry of Economy and Finance, founded the exception of lack of standing under-representation of the plaintiff and the plaintiff's objection of failure Unfounded of exhaustion of the previous void Wrongful requested by the Ministry of Economy and Finance, and demand compliance Wrongful filed by Edwin Rojas Vela Sifuentes and Second Tuesta own right and on behalf of the Regional FENTASE San Martin, an action that is directed against the Regional Director of Education and the Public Prosecutor in charge of judicial affairs of the Ministry of Education, the defendant is to vote and in accordance with Article twelve of the consolidated text of the Law on the Judiciary, as amended by section twenty-eight thousand four hundred ninety one, and WHEREAS: FIRST: That the appeal is to the superior court jurisdiction to examine, at the request of a party or legitimate third party, the resolution that produces them wrong, in order to be canceled or revoked in whole or in part, in accordance with the provisions of section three hundred sixty-four the Code of Civil Procedure SECOND: That, by letter of appeal folio two thousand seven hundred eighty-four the applicants submit that the contested decision as well as ambivalent vague and lacks analysis and collates evidence by the judge, when in his third recital states that the appellants failed to establish representation, made it unquestionably shows that the lower court media has ignored evidence that work on pages one to forty nine, contains the names of workers whose right is claimed, also, has not evaluated the credentials of folio sixty-seven and sixty-eight, granted by the Secretary General of CEN - FENTASE in favor of the plaintiffs workers' representatives, or the record of commitment to one hundred eighty-five folios, which are given powers of attorney to Mr. Ewin Red Sails Sifuentes and Second Toast to exercise the complaining worker representation in this proceeding, that for the sake of being tested representation with the documents of folios 2772-2783, issued by the Secretary General of the National Executive Committee of Workers of the National Federation of Administrative Workers Education-FENTASE, that according to the request of folio demand seventy-four to seventy-nine, the action was directed against the Regional Bureau of Education and the Public Prosecutor of the Ministry of Education, but are not suing the Ministry of Economy and Finance, who has no moral interest or to intervene in the economic process, that the claim is legal in the understanding, that under binding judicial discretion of the Constitutional Court, the application of Emergency Decree 037-94 PCM responds to a constitutional interpretation most favorable to the worker; THIRD: Articles 8 and 19 of Decree Law No. 25593 and the ninth article of Law No. 26636 - Working Procedure Act, gives unions the legal representation of workers within the area covered in the conflicts, controversies or claims promote the defense of their rights; FOURTH: That the enforcement action lawsuit filed on November 12, two thousand and one by Edgar Rojas Vela Tuesta Sifuentes and second in his capacity as Secretary General and Secretary of Defense Regional Executive Committee Federation of Education Administrative Sector - Regional FENTASE San Martin, whose representation is accredited in cars with the documents referred to in the second recital, the plant in its own right and on behalf of 1445 workers of Education Administrative Region San Martin requesting an order to comply with Executive Resolution Regional number 0159-DRESM dated August 29, two thousand one and they are paid: a) the special bonus provisions of the Emergency Decree N º 037-94-PCM, and 2) the payment of refunds accrued FIFTH: That, in resolution number one dated November 26, two thousand one, folio eighties, the judge admitted the running demand transfer to the defendants and a misinterpretation of the request, in an act of liberality of Justice is included as a respondent to the Public Prosecutor, Ministry of Finance, however lack of legitimate economic or moral action; SIXTH: That the Public Prosecutor of the Ministry of Finance by letter of one hundred thirty-six folio, dated December 20, two thousand one, clears the transfer of the demand, and follows the nullity of Resolution number one dated November 23, two thousand one, in the end it has to admit l0 Action Compliance against the Ministry of Economy and Finance, supporting its request on the fact that the plaintiffs have not sued the Ministry of Economy and Finance, because clerical workers in the education sector in the region of San Martin, no relation to the Ministry, that in the same document proposes the exceptions of: a) lack of standing of the defendant, b) lack of standing of the plaintiff, c) defective or inadequate representation of the defendant d) Failure to exhaust prior remedies admissible by resolution of one hundred forty-six folio; SEVENTH .- That the lack of standing by the Ministry of Economy and Finance, is deducted from declared invalid by the Public Prosecutor and not be a participant in the process under Article VI of Preliminary Title of the Civil Code, it is appropriate to exclude the process, protecting the invalidity positively deducted by you of the resolution number one, in the end proposed, that being so, the proposed exceptions to become irrelevant; EIGHTH .- Whereas, in the case is necessary to define the scope of Article sixty-nine Constitutional Procedure Code when it states that "for the origin of the compliance process will require that the applicant has previously claimed for certain date document, compliance with the legal or administrative duty, and that the authority has confirmed in his default has not responded within ten working days following the filing of the application.

Apart from this requirement is not necessary to exhaust administrative appeals that may exist?, The budget so that the plaintiffs met by notarized letter addressed to the Regional Director of Education dated 12 October two thousand and one, requiring the payment of the bonus mandated by the Emergency Decree N º 037-94-PCM, therefore does not apply the exhaustion of prior remedies in the case; NINTH: That, in writing folio six hundred thirty-eight, dated April 11 of two thousand three, the Regional Director of Education of St. Martin realizes the judge who has been paying the plaintiffs the benefit that gives them the Emergency Decree N º 037-94-PCM, leaving unpaid accrued interest from July 1994 to September 2001, the same procedure has been applied in the field of Ayacucho region and Amazon, as evidenced by Directorial Resolution Regional No. 01,256, dated June 11, two thousand and resolution Regional Management Sector No. 0646 -2001-CTAR-AMAZONAS/ED dated May 30, two thousand one, you are at page sixty, sixty-three and sixty-four of auto0s; TEN: That raised the case in consultation with the Constitutional Court and Social the Supreme Court, which issued its decision of April 18, two thousand and five, which runs on pages 2722-2724 stating: In the fifth recital, that "(...) the Civil Division of consultation Moyobamba Regarding the review of the constitutionality of subsection d) of Article seventh of Emergency Decree No. 037-94, when he says that does not include in this decree of urgency to public servants and the unemployed assets that have received increased by available Decrees No. 019-94-PCM, 46-94-EF, 59-94 PCM and Legislative Decree No. 559, and in recital, refers to "that is relevant to take into account the criteria set by the Court Constitutional regarding enforcement actions filed in the implementation of Emergency Decree 037-94, PCM, so the sentence declared null date accessed March 15, two thousand two, which states founded the demand and ordered that the home court issued another resolution in accordance with the preceding paragraphs; ELEVENTH .- That, in relation to enforcement action, that is the subject of this process, the Constitutional Court gave its endorsement to a ruling handed down in the file number 2616-2004 -AC/TC dated September twelfth, two thousand and five, which runs in the folio two thousand seven hundred thirty-five, having been required under the "Criteria developed by the Constitutional Court under the Emergency Ordinance No. 037-94 - PCM, as follows: Basis 2) says: "At a time when the Constitutional Court in connection with the emergency decree number 037-94 PCM could not be applied to any asset or earnings administrative server already perceived the marked increase in the decree Supreme N º 019-94-PCM, as specified in its own emergency decree number 037-94, in his article, as stated in the sentence passed on the record number 3654-2004-AA/TC?.

On the Ground 3) states: that "Subsequently, the Court held that only should be rewarded with the bonus of the Emergency Decree N º 037-94-PCM, those servers that have reached level manager or jeratural Scale eleventh Supreme Decree 051-91 Númeor-PCM, standard set forth in the sentence handed down in the record number 3149-2003-AA/TC?. On the Ground, in the foundation, 4) The Court stated that: "The last criterion reflects an interpretation more favorable to the worker, it is estimated that due to the amount of the bonus of Emergency Decree 037-94 number-PCM are than those prescribed by Supreme Decree N º 019-94-PCM, which is the bonus was for greater and more beneficial to be given to all public servants, including those who had already been paid the bonus of Supreme Decree No. 019-94 - PCM provided, the effect is appropriate to deduct the amount awarded by the application of that provision, as ordered in Case number 3542-2004-AA/TC?. On the Ground 13) states that: "In the case of administrative officers of the education sector and other sectors than the health sector, who are in occupational groups of technicians and assistants of the scale and number eight nine Supreme Decree No. 051-PCM, not belonging to a differentiated scale, it is incumbent that they should get the special bonus of Emergency Decree Number 037-94-PCM to be economically more beneficial, since the exclusion of these servers would lead to discriminatory treatment with regard to other state servants who are on the same level and occupational remuneration they receive the bonus granted by the Emergency Decree number 037-94.?, and finally in the Ground 14) states that: " The Constitutional Court, in full court session on the findings of fact and law background, and with merit as provided in Article VII of the introduction of the Code of Constitutional Procedure, agree to depart from the precedents previously issued on the subject under examination, and provides that the grounds of this are compulsory enforcement?.

As can be seen, the new position of the Constitutional Court is that this special bonus of Emergency Decree N º 037-94-PCM is paid to all public servants who are on the corresponding scale, and what's more, mandates that judicial officers must comply with the provisions of the Ground 14). DCIM seconds that brought the case against this background that are binding on enforcement actions to resolve claims identical statement was issued in the first instance, without considering that precedent, declaring that the annulment requested by the Ministry of Economy and Finance, founded Except for lack of standing of the Ministry of Economy and Finance, lack of standing under-representation of the plaintiff and the plaintiff, unfounded objection of lack of exhaustion of the previous meeting the demand filed by Edwin Rojas filed Second Tuesta Sifuentes and Vela made his own right and on behalf of the education sector administrative officers of the San Martín region grouped into the Regional Executive Committee of the Federation of Administrative Workers Education-Regional FENTASE San Martin was the same material appeal to be resolved at this stage; THIRTEEN .- That, in accordance with Article sixty-seven Constitutional Procedure Code, if it is true, which states that "enforcement action (...) can only be filed by the person to whom it issued the act or who invoke interest to the line of duty omitted, it is also true that in the case of the defense of rights and collective interests, the legitimacy correspond to anyone?, in this case regarding sub litis, demand has been raised by two administrative officers of the Education Sector and Second Sifuentes Edwin Rojas Vela Tuesta own right and as Secretary of Defense Regional Executive Committee of the Federation of Administrative Workers Education-Regional FENTASE San Martin duly recognized by the National FENTASE credential as this twentieth day of September, two thousand one folio sixty-seven and March, two thousand and five that work on pages 2774-2783, registered in Registration of Trade Unions of Public Servants-ROSSP Regional Directorate of Labour and Employment Promotion of the San Martin region, therefore, their representation is material and legal support as provided in article nine of Act No. 26636 - Working Procedure Act, and consequently have union leaders legitimacy to act in this litigation, by the above considerations, partly confirms the decision dated March 14, two thousand six, who works at page two thousand seven hundred sixty-four, on the end: Declares founded the objection of lack of standing of the Ministry of Economy and Finance, and infuse the exception of non-exhaustion of previous track, the withdrawn as soon as the exceptions stated BASED lack of standing of plaintiff and plaintiff's underrepresentation, reforming the exceptions declared admissible Lack of standing under-representation of the plaintiff and the plaintiff, and founded the enforcement action lawsuit filed by the plaintiffs Edwin Rojas Vela Tuesta Sifuentes and second in its own right and behalf of the Federation of Administrative Workers Education-FENTASE REGIONAL SAN MARTIN therefore ORDERED that the Regional Office of Education San Martin met with the implementation of Executive Resolution Regional No. 1590-DRESM dated 29 August two thousand and one paid to the plaintiffs special bonus provided for in Article 2 of the Emergency Decree N º 037-94-PCM, less any amount received on account of the bonus granted by Supreme Decree N º 019-94-PCM and the payment of accrued from July 1 of 1994 until August of two thousand one, according to calculations to be performed by the Regional Directorate of Education, with everything else it contains, to be reported, and returned.

Vocal Speaker: Mr. INOP Usquiano.

Hémerit left.

Usquiano inoperable.

Castillo Guerrero.

2. COMMENT

2.1. SOURCES OF LAW

In all research is necessary to consider the sources of law, for which we refer to them below.

It is necessary to determine which are the sources of law in order to have a better idea of ​​the subject studied in this sense the sources of law are the law, doctrine, custom, case law, enforceable, the general principles of law, social reality, the expression of will, among others. That is, these are not the only sources of law, but there are others, which go beyond the scope of this research.

For some authors, the general principles of law are not a source of law, which is necessary to consider for a better understanding of the subject studied.

Even some lawyers when they study the sources of law do not take into account the social reality.

The resolution regarding comment is regulated by several sources of law and jurisprudence, law and doctrine, among other sources of law.

2.2. Rule of law LAW ON OTHER SOURCES

In legal systems belonging to the Roman-Germanic legal family, as Peruvian state law takes precedence over other sources of law, making it necessary to take into account when another source of law is contrary to law, in which case we prefer the latter.

However, it is clear that the other sources of law may cause or lead to regulatory changes.

2.3. Positivism

Positivists are those who worship the law in this regard we must reject this position, because it leads to wrong conclusions or wrong.

That is, we must reject this position for which plateamientos studies or overlooks other sources of law.

Positivists can not understand the comment regarding resolutions because they do not have critical and creative attitude.

2.4. BACKGROUND

When investigation is necessary to take into account the background to get a more reliable and not subject studied misled if not revise them, as it takes advantage of other legal experience, particularly of the doctrine , which is also a source of law.

The main background is our work published in the Journal entitled Legal Legal Persons of Peru, with which one can understand many important issues of legal persons and representation.

It is also necessary to consider my other article titled Real Estate Brokerage in the same journal published, but another number of the same, which may include many important issues to this comment

However, we should point out that this research there is little history, because most of the articles are based on the method and not dogmatic functionalist method (except some very few studies published in law journals mentioned case).

2.5. AREA OF KNOWLEDGE

When studying the different topics, subjects or topics you need to determine the area of ​​knowledge to have a greater knowledge of the subject studied.

The area of ​​knowledge of this comment is civil procedure, corporate, commercial, business, legal persons, civil, labor, administrative, registry, notary, agriculture, banking, criminal law and procedure.

He studied civil procedure because according to the Civil Procedure Code is required to litigate on behalf of power by deed or act, unless the different legal and procedural efficacy does not require registration of mandates and powers or the registration of persons of law.

Corporate is studied because it is the branch of commercial law that regulates private enterprise in more detail some legal entities and autonomous entities.

We study corporate regulates commercial because some people are legal and registered societies and some autonomous entities, such as unlisted companies, and part commercial. The record that Article 46 of the General Corporation Law empowers the Peruvian administrator or manager to issue certified copies, however, not be public instruments, can not use the copies for proof representation in court proceedings.























2.6.





2.7. Civil law







2.8. CODED NO RIGHT







2.9. PUBLIC LAW





PRIVATE LAW





2.11. SOCIAL LAW













2.13.



































THREE-DIMENSIONAL THEORY OF LAW















2.19.



































ROMAN LAW













COMPARATIVE LAW















































































3. CONCLUSIONS

















4. ADVICE