In the opinion No. 39979 of July 19, 2010, the Comptroller has said that rules on invalidation as more general expressions of the principle of contestability of administrative measures are applied without regard to the character singular or general purpose of the act, then, a regulation (administrative act that defines rules of general application) might be invalid as any other administrative act. In his own words, the ruling states: Established
that regulations issued by the President of the Republic has the character of administrative acts, which is applicable, therefore, the principle of contestability, and in terms the possibility of requiring the invalidation of such statements will be noted that this conclusion does not exclude the fact that Article 53 of Law No. 19,880 provides that the administrative authority may invalidate acts contrary to law "after hearing the interested "since that provision merely regulates the procedure invalidating an aspect that, by its nature, is not applicable to administrative acts containing norms of general application, but it can be inferred that such acts can not be challenged, before the authority that issued, being contrary to law.
The doctrine is generally reluctant to admit the conclusion that comment here.
course, the regulations do not have a state of emergency in touch with the principle of contestability. Rather, it is conceivable that in court this kind of administrative action is subject to greater risks in defense, because (by their general nature) the standing to require its cancellation extends generally also those who may have with interest in doing so (and shows, apparently, the claim of illegality municipal).
However, the opinion discussed assumes that the override is a kind of way to challenge and, as such, extends also to the regulations. Is this a correct assumption? The invalidation (LBPA, art. 53) is not among the recognized administrative resources in the Chilean experience (art. 15). The relationship between administrative appeal and invalidation is different: If you know of a resource management service detects that an illegal administrative act affects, you can override it ... but the same could happen if the service comes to their attention by other means, including by an unusual request, which can be common when you take into account the state of firmness ("administrative double jeopardy" was called before) that can reach the administrative acts (art. 60). Perhaps we think differently on the day established jurisprudence by a real obligation to invalidate the illegal acts, if an applicant's request to appeal out of time, understand that this day has not arrived. Beyond
forks maze procedure, the invalidation of the regulation is problematic because the very nature of this type of event. As legislative act of general, the regulation is intended to apply through other instruments in a number of cases more or less indefinite or indeterminate a priori. Therefore, the annulment of the regulation may entail a more or less radical alteration of the acts may fulfill these general rules. Then, as the invalidation is a recognition of the legal invalidity of the act is void (the "nullity of public law," we say in Chile), his statement is in principle retroactive and weakening the unique effects that may have occurred due to regulation.
security scruples In that lies the traditional legal doctrine concerns the invalidation of the regulation. Should be This is for reasons similar to the invalidity of the law (the declaration of "unconstitutional" under the scheme implemented by the Law 20 050) produces derogatory and not retroactive, meaning it operates ex nunc and not ex tunc . Paradoxically, the Comptroller has been the main promoter of the look-reticent than by considerations of legal certainty, for years the Chilean right had to override. In circumstances that applications have given rise to this problem were designed (alternatively, one would think the absence of clarification to the contrary) "the invalidation or repeal" of a statutory provision, it is noteworthy that the Comptroller Matice no conclusions in a less disruptive to the system of administrative law.
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