LOOKING THE OTHER EYE TO JUSTICE.
Although the sentence is the normal means of terminating the process in Colombia, it also can come to an end through other means, namely that the court does not decide on the lawfulness of the claim of the actor. Indeed, it may happen that certain actions by the parties prevent the natural continuation of the process until its conclusion. It is non-judicial modes of termination other than the statement whose ownership is not for the judge but parties. Among these exceptional modes can be distinguished: (i) those produced by activity of the parties, as with the transaction, a raid and extra-satisfaction of the claim, and (ii) those products of the inactivity of the same as they are the withdrawal and lapsing.
be the first of the named categories in which we will concentrate our study, alternative forms of law are based on historical criteria, legal and constitutional. Are rooted in the Constitutional Article 116 paragraph 4 of Chapter I Title V which states that "Individuals may be temporarily invested the role of justice in the condition of conciliators or arbitrators authorized by the parties to utter failure at law or in equity, in the terms established by law ", this article was implemented by Provisional Decree 2651 of 1991, which became permanent legislation through Law 446 of 1998. but the truth is that in practice, for many reasons, the justice system is inefficient, slow and costly. This circumstance has led to the parties, in many cases, go to mechanisms alternative dispute resolution to withdraw from the court area and achieve a prompt resolution of the same.
Thus, considering the Constitutional mandate, there arises the idea of \u200b\u200bcreating a law that congestion in the Judiciary, would be the first approach to the Alternative Law. The project is submitted for debate in the chamber where it is known as Bill No. 127 of 1990, then in the Senate where it emerges as Bill 121 of the same year, discussed and approved arises Act 23 March 21 1991, known as the Law of Judicial offices congestion. The philosophy of this Law, basically follows the explanatory memorandum attached to the project by government and Congressional debates and demands and are, the search for greater efficiency of administration Justice, the crisis in the courts, among other reasons for the excess of social problems and subject to it physically impossible to tackle them and solve them, legislative hypertrophy, evil, accompanied by excessive jurisdictionalization of conflict, the need understand the riots, more as social problems such as illegal behavior that must be answered with repression, the need to give the community the ability to resolve conflicts, the need to place the judge in the position it deserves, I mean that address issues which society has not found a solution, the foreign experiences that lead to justice with extensive involvement popular.
Act 23 of 1991 provided for the expansion of organic and functional area of \u200b\u200badministration of justice from the State to other possibilities, by allowing individuals to settle disputes through people temporarily covered the role of administering justice. These instruments, known as alternative dispute resolution, are characterized by providing institutional options to resolving disputes without decisions or judgments.
These regulations consolidate the law allowed the use of alternative dispute resolution and legal institutions that citizens have at their disposal to resolve conflicts without court order. Additionally, these instruments have been used to alleviate court congestion, reduce cost and delay involved in processing processes, and encouraging civil society participation in conflict resolution.
Article 8 of Law No. 270 of 1996 "Statute on the Administration of Justice states that the Act may create different mechanisms of the judicial process to resolve conflicts that arise between partners and identify instances in which there will be room to charging fees for these services, and Article 13 of the Act establishes the exercise of judicial by other authorities and individuals guided by the provisions of the Constitution.
alternative mechanisms of law seek to achieve final settlement of disputes, then, when it comes to the arrangement as in the case of conciliation, the agreement provides the right of execution and has the force of res judicata, all of which means jurisdiction saving time and money for the parties, ensuring that only situations in which the parties can not agree, must be the judge's decision.
Terms of the agreement can only be about the powers and prerogatives of character available. These figures are recognition of the will of the parties as a legitimate source of legal and contract obligations are instruments for conflict resolution. The criterion set by the Court, sets out the main features of the settlement ruling, thus: "an instrument of the self-conflict, is a preventive, not judicial, is a useful mechanism for conflict resolution, extending the conflicts that can be traded, and is the result of an activity regulated by the legislature " [1] . For the Corporation, alternative forms of dispute resolution not only meet the assumptions described above, but additionally constitute instruments of vital significance for the decongestion of court offices [2]
But specifically the emergence of ADR in Colombia due to the presence of a culture of violent response to conflict as the recent years, has increased the homicide rate. In the eighties, that figure was 40 homicides per 100,000 population in 1996 amounted to 88 homicides per 100,000 inhabitants. [3]
One factor that has validated the use of violence is on the low perception that citizens have about justice. A recent expert study on justice, by the FES Foundation, with support from USAID, shows that the citizen perceives justice as corrupt, inefficient, unfair and unsafe. 96.8% of respondents claimed to believe that judges are left to buy. 93% considered that the applicant's social position influences how the service is provided in the court offices. This negative view of justice in some cases encourages the use of so-called private justice is an element that generates social impact.
of judicial culture of conflict is another agent that leads to the creation of ADR, the Ministry of Justice and Law [4] , provides the following elements of the phenomenon of congestion: first, there is recognition of the existence of judicial congestion, and secondly, there remains a conventional wisdom about the causes of judicial congestion allocated according to this survey, the lack of resources technical (36%), lack of courts (35%) and the absence of more agile (32%).
In the same vein, a study by the Institute be on court congestion [5] defines the following: In 1994, the various jurisdictions totaling more than 2'573 .406 cumulative cases or repressed, distributed as follows: 129,797 employment tribunal process ; jurisdiction administrative contentious 38,176, processes, processes 608,890 criminal jurisdiction, civil jurisdiction 1'426 .834 processes and processes 375,777 family courts. In late 1997, the total congestion remained, but had surpassed the four million cases. Second, an analysis of the rates of accumulation of diagnostic processes that the time required to obtain a court ruling is too long. In 1994, the Ministry of Justice and the Law, this time ranged from 3.2 years to a criminal proceeding before a circuit judge, and 3.9 years for one to be aired before a civil judge of the circuit. This means that to evacuate all of the more than 4'000 .000 congested process, firms have to close the judiciary for over 9 years, and judges to devote exclusively to air dammed contentious disputes. In this instance, it is suitable to cite the words expressed by the Devis Echandía treatise: "A slow justice is an injustice quickly."
congestion judicial offices demonstrates a very high volume of unresolved processes attributable to several factors, including the duration of the process, training process and litigious lawyers and a total absence of direct settlement of disputes. Although the country has one of the highest rates in Latin America in number of judges one hundred thousand inhabitants, the rate of judicial congestion rises persistently because conflicts grow in geometric progression, while the variables in the supply of justice services rising in arithmetic progression. In particular, Colombian society has been affected by a high tendency towards litigation, driven by factors such as a complex and worrying level of public conflict and the absence of a real culture of self-composition differences. Phenomena which have generated a growing demand for justice.
Any civilized democratic organization requires as an imperative inseparable from its existence, a conflict resolution system that gives effective response to disputes between the partners. It is clear that limited access to justice creates a serious denial of the rights of individuals. In other words, in justice is unacceptable the existence of marginalized sectors of the community for providing this service.
In Colombia, the lack of access in due course forced to rethink and broaden the spectrum of conflict resolution, changing the traditional legal environment and introducing new legal institutions tended to overcome the problems of access to the justice system and congestion in court.
The alternative method of conflict resolution to further develop our country is conciliation. An analysis of statistics on the effectiveness and the rise of this figure, which includes the period from 1991 to 1995, was exposed in the government publication Justice for the People: "A judicial branch entered an average of 374,998 cases, of which 38,139 were reconciled. This represents 10.1% of the total. If the administrative authorities (police family, police investigators and procurators) were reconciled approximately 41,745 cases of 152,800 who entered, and reached 27 , 3% effective (this information corresponds to the five main cities). Finally, with respect to conciliation court, nearly 78,750 cases received in the 35 conciliation centers legal clinics and 22 centers of chambers of commerce and associations, approximately 15,750 were reconciled, ie, 20% of them. " [6]
A sample big advantage of the settlement compared to the traditional system of conflict resolution is provided by the preamble to Act 23 of 1991 in terms of labor and family justice. "In 1988 he presented to the country's labor inspections an approximate total of 80,000 requests for conciliation, which were resolved positively 60,000, which represented 75% of the total. In the same year there were only 15,000 claims working with judges, most of which require more than a year to be resolved. In the field of family law has been a similar phenomenon. For example, in 1989, the Child Advocacy reconciled 28,058 cases, representing 47% of all applications submitted to Family Welfare and lower civil courts of the country. "Application of conciliation has been delegated to schools conciliation, the agencies of an industry association, associations, foundations and legal clinics in law schools in the country. The growth of these institutions also shows signs of the rise of ADR in Colombia, in the last three years, existing facilities have quintupled since 1993. However, much still needs to be done by the consolidation and dissemination of these mechanisms. For example, the institution of justices of the peace, introduced in the new constitution, expected to become legislative reality and locally appropriate development. It is clear that we will not have the right to demand credibility in our system of conflict resolution or justice system, unless he first took from the surrounding mechanisms of wide access and coverage. Therefore, a serious and coherent public policy on justice, less rhetoric and more proactive cyclical and structural, is obliged to consult the insertion and consolidation of the aforementioned alternative methods of conflict resolution. Recently
Act 640 of 2001 organized the competition on reconciliation established by Law 446 of 1998, Decree 1818 of 1998, Act 23 of 1991, clarifying doubts, filling gaps and building competencies and jurisdiction over the subject.
Currently the mechanisms established under Colombian legislation are:
1.The arbitration:
In Colombia, the arbitration was considered in her third title of the Book XXXIII of the Code of Civil Procedure and Title III Sixth Book of the Commercial Code. The President in exercise of powers under Act 30 of 1987, issued the decree-law on arbitration number 2279 of October 7, 1989, by which was removed from the code of civil procedure the arbitration process is repealed the relevant part of Book Six of the Commercial Code and accordingly established an independent arbitration statute that turn with the new legislation goes through some changes. is a procedure which eligible individuals to achieve resolution to their conflicts. You reach it by agreement, is done at special judges other than those designated by the State. This institution is based official who the State can not oppose the citizens exercise the right to freely dispose of their rights and subjecting them to people who deserve ample confidence. The arbitrators acting as agents for a transaction, leaving the clause and will compromise the strict domain of private law, because to think that the referees are judges would go counter to the constitution, as the letter states: "Justice is a service public by the nation "and could hardly act as a judge who is not. This mechanism
Media Delegation to a third party to resolve the conflict. It is an institution enshrined in the Colombian legal whose purpose is to promote conflict resolution, alternative institutional justice, which is done by individuals who are temporarily vested with powers and jurisdiction and powers of a judge. Collateral
arbitration has the effect of congestion in court, according to the purposes for which they were issued Law No. 23 of 1991 and Decree 2651 of that year in accordance with Act 446 of 1998.
Arbitration has its source in a convention, covenant or agreement expressed in the arbitration agreement or commitment. The parties submit their disputes to arbitrators and waive the regular courts. Enough that the parties agree to arbitration agreement in any document, with the requirement that any legal effect, shall state the name of the parties and indicate in the contract accurately referred. The clause may be total or partial. The compromise agreement must contain the names and addresses of the parties, differences or disputes subject of arbitration, the name of arbitrators appointed by the parties or all three provisions of the Law should not be assigned by the parties, in all If it should be noted that minor disputes, in which case the arbitrator shall be only one, if you have already begun the process should be indicated and the parties may extend or restrict the claims put forward by him.
There are various forms of arbitration, the arbitration may be in law, equity or technical. The arbitration law is one in which the arbitrators based their decision on the law in force. In this case the referee shall be a lawyer registered. Arbitration in equity is one in which the arbitrators decided on the basis of common sense and fairness. When the arbitrators render their decision in view of their specific expertise in a particular science, art or craft, arbitration is technical.
The Act 23 provides independent arbitration, institutional and legal. The Independent is like that in which the parties agree for themselves the rules of procedure applicable in settlement of their dispute in accordance with the provisions of Decree 2279 of 1989, the arbitration institution, one in which the parties submit to a procedure established by the Arbitration Center, instituted by Law 23 of 1991, and is legal, when Failing such agreement, the arbitration to proceed under the existing legislation.
is mandatory or forced you realize Article 34 of Decree 2351 of 1965, when it comes to resolving labor disputes. Act 80 of 1993, Chapter VIII, opened the space for the settlement of disputes that arise between state agencies and contractors in connection with the recruitment and Articles 68 and 70 hosted the arbitration process as an instrument for resolving such conflicts.
Institutional Arbitration provides the possibility of organizing centers for arbitration under the supervision of the Ministry of Justice. Associations, foundations, unions and corporations that have at least one hundred members and two years of experience can organize their own arbitration centers prior authorization of the Conciliation and Prevention Division of the Ministry of Justice and the law provided that they comply with the requirements established for purpose of Article 91 of Act 446 of 1998.
As the arbitration process, the law provides that it shall be six months, if parties have provided otherwise. The extensions take place at their request or their proxies entitled to the effect. Once the pre-arbitration procedure in appointing the arbitrators, the process must be followed indicating the date and time of the settlement hearing to be held in accordance with the provisions of paragraph one of Article 432 of the Code Civil Procedure, there being no agreement is held pending hearings in which tests are carried out, it allows participation of third and present resources, when shipments sets of decisions, the Secretary, the next day the office will file for adjudication, which must be uttered in a period of three (3) months. At the same shall be paid the costs and convictions by the parties in accordance with the provisions for civil proceedings. Through the arbitration agreement, including the arbitration clause and the commitment, the parties agree to submit their disputes to the decision of an Arbitral Tribunal, giving up to pursue their claims before the judges.
constitutional jurisprudence has been addressed by saying "The arbitration stems from a private legal business by virtue of enabling the parties after the agreement has been reached between the parties, who gives the power to administer justice individuals in the status of referees, is the Constitution itself "(C-431, 1995).
2
Reconciliation
Conciliation is a voluntary, private and bilateral resolution of conflicts
by which the parties agree spontaneously appointment of a conciliator who invites them to express their points of view and to settle their dispute. The reconciliation is a mechanism for access to the administration of justice, the agreement is reached between the parties resolved definitely the conflict facing them, avoiding to resort to the court to decide. The purpose of conciliation is not so much judicial imposition but an autonomous search for agreement among partners, may be voluntary or mandatory, as a condition to start a process can be carried out by an independent third party or an institution as a center of Settlement. May be national or international private conflict resolution between people of different nationalities or between States or operators of different states. The role of the conciliator is to administer justice temporarily, by enabling the parties in the terms established by law. Enabling the parties may be express, where an individual is known to the parties who give it the power to administer Justice, or may proceed when the parties decide to request the appointment of a conciliator from the list offered by a particular center of Conciliation.
is a judicial act because the final decision, that the council endorse the minutes of conciliation, is binding on a court decision (rei judicata) and provides the right of execution (L446, art. 66). It is unique in that a mechanism can only be subjected to legal disputes arising in relation to available rights and by persons capable of having. Therefore are not susceptible to conciliation matters relating to marital status or disability rights, or rights which the law prohibits the holder have, to issues involving public order, national sovereignty and the constitutional order, or material relating to the legality of administrative acts.
2.1 Conciliation Law:
The starting point is Article 101 of the Code of Civil Procedure, which inspired all forms of settlement in Civil, Commercial, in equity and the family matters under the Act 23 of 1991, which underwent some modifications by Law 446 of 1998 and subsequently was regulated by Decree 1818 of the same year. But recently, Law 640 of 2001 made no practical value the First Part of Decree 1818 of 1998 on conciliation, this law has undergone some subsequent reforms.
This conflict resolution mechanism, two or more people manage by themselves the solution of their differences, with the help of a neutral and qualified third, known as a conciliator, conciliation centers, in which all subjects are matched that are capable of compromise, waiver or settlement. The reconciliation provided in the workplace, it will take before the administrative authorities of work and conciliation centers, in family matters, to the councils of the Mediation Center, before the defenders and Commissioners family and regional delegates and subsections of the ombudsman, the public prosecutors, judicial authorities and administrative and family matters to notaries, in the absence of the above in the municipality will be conducted by the ombudsmen and civil courts or municipal promiscuous, in that it is the competence of civil judges, conciliators will be forwarded to conciliation centers, with representatives of the Public Prosecutor in civil and to notaries. In the absence of the above in the respective municipality, may anticipate representatives and civil courts or promiscuous; in administrative litigation, the parties shall make application for conciliation court before prosecutors assigned to the Administrative Courts, with the participation of the Directorate of Judicial Defense of the Nation of Ministry of Interior and Justice.
trade reconciliation, land and policing is supplied to a duly authorized Conciliation Center or to the public official who knows the subject matter, when not a party. The reconciliation in policing can take place only in those matters in accordance with the law support such a mechanism.
The mediator is a person or individual state level, and listen to stimulate and guide the parties involved the problem to settle their differences, the task of the conciliator is to serve as facilitator for the resolution of a conflict and therefore has no power or authority to impose sanctions. Can be peacemakers: Inspectors of Police, ombudsmen, Traffic Inspector, family advocates, notaries, Ombudsman, Judicial Delegate, both administratively and in Civil Matters. The conciliator shall be a qualified attorney, except in the legal clinics of Faculties of Law, of recognized integrity, qualified and impartial and his work will be free to direct the process of reconciliation, you must obtain special training provided by the Directorate General Prevention and Reconciliation Ministry of Justice and Law, the Mediation Center, the Universities and Governmental and Non-Governmental Organizations that receive the prior endorsement of that directorate, Santander are only allowed to train facilitators at Law The University of Bucaramanga, by Dr. Maria Helena Duarte Hernandez and the Chamber of Commerce by Dr. Manuel Fernando Mantilla. Prior to the exercise of its function, the conciliator must approve training,
conciliation centers of a university must meet the requirements of the Act include: establishing regulations which should be designated as making lists of conciliators, identify requirements to be met by the causes of delisting procedures of registration and how to make your appointment, fees for conciliation and administrative expenses rules applicable administrative center, forms to appoint the director and secretary, its functions and powers. Legal persons nonprofit can create Mediation Center, subject to authorization by the Directorate General of Prevention and Reconciliation Ministry of Justice and Law. To obtain this authorization must submit a feasibility study must demonstrate the ability logistical, administrative and financial. Must meet minimum requirements, among others, establishing a regulation that contains the minimum information required by the national government, organizing a file of records to comply with the requirements of the national government, have a seat equipped with the administrative elements and technical resources to provide support to the conciliation process and to provide training for conciliators to be appointed to organize his own continuing education program on alternative mechanisms of conflict resolution, ease in the months of January and June of each year, An index of conciliation proceedings and the evidence of reconciliations not performed to the Directorate General of prevention and settlement of the Ministry of Justice and Law, an entity that controls, inspects and monitors the performance of the centers of settlement.
The centers reconciling all the materials that are susceptible to compromise, abandonment and reconciliation. The reconciliation in the workplace, family, civil, commercial and agricultural centers only takes conciliation meeting the requirements of law
here should be considered extrajudicial conciliation in law and procedural requirement to appear before the civil courts family and [7] , Article 35 of Act 640 of 2001 which states that extrajudicial conciliation in law is procedural requirement to appear before the civil courts, administrative litigation and family, in those matters determined by the same law, and Article 27 provides that conciliatory settlement centers, regional and sectional delegates of the Ombudsman, the prosecutors and notaries can reconcile the subjects in which they must know the Civil Judges, their absence in the respective municipality can do Ombudsmen and the civil courts or municipal promiscuous.
By Presidential Directive 02 of February 28, 2003, promotes reconciliation contentious administrative court in when entering the administrative departments, centralized and decentralized entities of the National Order, Ministers and Vice President of the Republic there are legal disputes that could be negotiated before going to the procedural or arbitration shall seek the solution of the conflict through alternative mechanisms of dispute settlement provisions of the Law [8] . Also
Law 446 states that schools can apply for Conciliation Judicial authority to commission the inspection of police to conduct the procedure of delivery of the leased asset, when there is a breach of a conciliation report regard.
Regarding Settlement in Corporate, inspection entity responsible supervision and control, can act as mediator in disputes between partners during the development or execution of the social contract.
in family reconciliation can be advanced before councils of conciliation centers, before the family advocates, family commissioners, regional and sectional delegates of the ombudsman, the public prosecutors, judicial authorities and administrative and family matters to notaries. If lack thereof may attempt conciliation by the ombudsmen and civil courts or municipal promiscuous.
can be reconciled on the suspension of the common life of the spouses, the custody and care of parents, children or grandparents and food including regulation of access, parenting, education and legal protection of minors, setting Alimony, which is determined by the amount, location and discharge, the person must make the payment, wage deductions and guarantees as may be, physical separation of civil and canonical marriage, separation of property and marital settlement company for reasons other than the death of spouses, and litigation processes on the system economic of marriage and inheritance law, provisional attachment of residence, establishment of bonds of marital behavior, spouses if there is food to young children. Reconciling the above aspects are procedural requirement.
The court has expressed the reconciliation front: "It's a direct understanding with the presumed opponent, leading to the conviction that the confrontation of opposing views can still be a compromise without a third decide what the parties themselves can agree "(C-165, 1993). "The reconciliation is not only consistent with the Constitution of 1991, but may evaluated as a projection, on the jurisdictional level, the pacifist spirit that informs the Charter in its entirety. Because, the jurisdiction civilized and peaceful way to settle disputes, it is even more direct understanding with the presumed opponent. " [9]
Conciliation 2.2 Equity:
is a new institution, created by Act 23 of 1991, which resembles a bit the idea of \u200b\u200bthe "Justices of the Peace." consists of assign persons of recognized integrity and credibility within the social cluster, known as a conciliator in Equity, a work with a strong flavor civic virtue of which work with the community, leading and sponsoring the idea that differences of communities are settled through conciliation system, thus avoiding proceedings before the ordinary courts. Unlike the Conciliation Mediation is Equity itself is regulated by law.
The advantages of this figure allows parties to get enough satisfaction with the resolution of conflicts as most people are satisfied, all learning to live together in peace with himself and others. It produces calm and saves time and money because the procedure is faster and cheaper than a trial. Es más efectivo pues el proceso es exitoso, tiene pleno valor legal para las partes quienes asumen con agrado la decisión pues no es una solución impuesta sino que sale de la voluntad y responsabilidad de las mismas.
Contribuye en alguna medida a la búsqueda de la paz, pues mejora las relaciones entre las partes, ya que en la decisión no se observan ganadores ni perdedores pues la misma satisface a todos los involucrados y genera acercamiento. Permite controlar el proceso y los resultados del mismo pues son los involucrados quienes definen los acuerdos amigables, mediante el diálogo y la negociación.
La Conciliación en Equidad ofrece una visión común de la realidad, en esta el conciliador debe tener an overview of the context to be an agent in the implementation of the agreements, which allows you to draw broader perspectives dealing with the conflicts that are often left in a partial vision. Possible social leadership, group and community as it enables operators to define the settlement also have full recognition of the community, which ultimately is what brings legitimacy to act as judicial officers.
The attitude of the Conciliator in Equity, will be to seek an amicable settlement of a dispute, coming not strictly legal criteria, but to the particular rules of what is regarded as fair. However, it is good to review the concept of "Equity" and consider it from an Aristotelian perspective, not to commit errors of subjectivism in the decisions of the conciliators in equity.
to the designation and legal status of the conciliator in Equity should be aware that they belong neither give rise to a body or administrative agency or court of any kind. May be advanced only by those who have been chosen for this, for the Judicial District Courts of general jurisdiction delas their host cities, and the chief judges of the highest hierarchical level in the other municipalities, the lists that are submitted by civic organizations neighborhoods, districts and villages within it. The selection of candidates is done in collaboration with the general direction of prevention and settlement of the Ministry of Justice and the law and must attend the training process to propose the election of the conciliators.
The authority to appoint the conciliator, sends a copy of the appointments made to the general direction of prevention and settlement of the Ministry of Justice and Law. Also suspended from office, or request or at the request of the Directorate General of Prevention and Reconciliation Ministry of Justice and Law, temporarily or permanently from the exercise of its powers to act when, contrary to the principles conciliation deciding on the settlement of the conflict, copper emoluments for their services when processing cases against its competition.
equity conciliation may be attempted in all matters that are capable of compromise, waiver or settlement and related issues and domestic violence prevention. The process should be governed by principles of dispatch, thereby achieving an amicable settlement.
The outcome of the proceedings, the parties and the conciliator up a written report stating the agreement. This act shall be considered res judicata and executive merit pay as it has been reconciled, such records shall be kept in file hearings held.
exercise of conciliators in equity is done for free, because it identifies the appointment of recognition and legitimacy granted by the community as a national of human qualities connoted.
3 The
amicable
is a conflict resolution mechanism, by which two or more individuals delegated to a third party called a mediator, the power to define the force binding them, the state, the parties and how to enforce a particular legal transaction. A conciliator may be singular or plural [10] . The parties appoint the conciliator may direct or delegate to a third party designation. The third delegate for the parties to appoint a conciliator may be a natural or legal person [11]
The conciliator's decision will produce legal effects concerning the transaction.
4 Justices of the Peace:
Constituents Landaeta Jaime Fajardo, Carlos Daniel Abello and Maria Teresa Garces, submitted proposals by which they sought to create a figure close to the community grassroots to resolve conflicts involving the coexistence of citizens in an agile and without formalities. The study by one of the proponents found that only this figure appeared in the constitutions of Uruguay, Brazil and Peru, but in the same study found no initiatives in the proposals submitted by citizens, and only account for a speaking proposal Justice of the Peace as a conciliatory figure and eminently more practical than the Conciliator Equity.
himself proposed to build a theory to Colombia on justices of the peace, from the different proposals, taking into account that the type of justices of the peace carries a popular and social ethics as a counterpart to the commonly pseudomoralista concept called the upper classes of society and as focal point of the new social pact. Then stood justices of the peace as an expression of this social pact and established as fundamental characteristics of the proposal on grassroots popular choice, respectability within the community, failure equity without pre-established institutional formularies and enforceability of decisions.
The Constitution of Colombia, given the power to create popular and vote for Justices of the Peace responsible for resolving individual and community conflicts [12] . To this end, the Congress of the Republic issues the Law 497 of February 1999, in which decreed the Principles, Purpose, Jurisdiction and Venue, election of judges, periods and requirements that must be met to be, disabilities, impairments and incompatibilities, etc. Justices of the Peace have jurisdiction over disputes that individuals and the community, voluntary and by agreement submitted to it, that deal with issues traded, settlement or withdrawal and are not subject to formalities in accordance with the Law in an amount not exceeding one hundred minimum monthly wages in force.
To be Justice of the Peace and review is required is an adult, be an active citizen, be in full enjoyment of civil and political rights and have resided in the respective community at least one (1) year before the election. In exercise of his office should receive ongoing training.
Decisions utters justices of the peace are based on the principle of equity, according to the criteria of justice within the community. All actions to be brought forward should be oral, except those specified by law. Of reconciliation and agreement, a record that must be signed by the parties and the judge, which is given a copy, records and statements that are imparted should be kept in public archives.
Act 434 of 1998 through which created the National Peace Council and regional councils, This law gives municipal functions to the managers of local authorities to chair these councils and sets the policy of peace as a state policy, permanent and participatory. In its structure should work in a coordinated and harmonious all state bodies, and forms of organization, action and expression of civil society in such a way that transcends governmental periods and to express the national complexity.
Justice of Peace is an independent and autonomous with the only constitutional limit, is free and is operated by the state, has jurisdiction in matters that are traded, withdrawal and reconciliation and are not subject to formalities by law, in an amount not exceeding one hundred (100) statutory minimum wages, you can not hear the contentious constitutional and administrative actions, civil actions that relate to the capacity and marital status of persons, except the voluntary recognition of children born out of wedlock.
through the City Council call an election under the initiative of the mayors, or majority of members or organized groups or residents registered in the respective constituency will be elected by popular vote by the citizens of the communities located in the district election.
In the election of magistrates, judges are selected for review two candidates who have been nominated for this position, if not complied with the requirements for the election of judges for review, is replaced by a collegial body consisting the magistrate and two justices of the peace agreement that brought the parties or, failing that belongs to municipalities or surrounding Districts. The magistrate elections and review was held on the same day as the election of community action boards or community councils. Once published the agreement calls for elections, this should do between ten and twelve months from the date of publication. And only two judges must choose peace and two district review. Are elected for a period of five (5) years, renewable indefinitely.
When is proceeding processes that relate to matters likely to reconciliation, settlement or withdrawal in amounts not exceeding one hundred (100) legal monthly minimum wage as well as issues that relate to the ability or marital status of individuals before the jurisdiction regular, and if no court decision handed down, the parties, by mutual agreement, request in writing to the trial judge's suspension of terms and the transfer of the jurisdiction of the matter to the justice of the peace of the place requested. In this case and once the attention of the justice of the peace.
All disputes to be completed in a ruling in equity handed down by the magistrate, are subject to review, as long as it expresses the party orally or in writing to the judge within five (5) days following notification the failure.
5 Mediation
is not regulated by law, but has been used frequently to resolve conflicts. Because of this, we can say that through Mediation can cover almost all cases subject to withdrawal, compromise and conciliation, and provided take into account certain criteria. It is a figure by which the parties to a conflict seek the solution to it, with the assistance of a third party, called Mediator.
The Ombudsman is a member of the community with the skills and qualities to help others to resolve conflicts. Facilitates the construction of agreements, but does not decide the solution.
Sometimes the written agreement is a settlement agreement in which the parties indicate how to solve your problem and establish their rights and obligations.
The transaction is a contract where the parties end extrajudicial proceedings pending or potential litigation beware [13] . For there transaction must together three aspects, namely: Should there be a law of doubtful or uncertain legal relationship, auque not in dispute, the will or intention of the parties to change the legal relationship now doubtful for true and strong relationship, the Conventional removal of uncertainty through reciprocal concessions. Given these elements has been defined more accurately the transaction stating that the convention is that the parties sacrificing part of their claims, put term of court proceedings that are pending or potential litigation beware.
the transaction to be valid requires that the parties have capacity dispose of the objects included in the transaction because it involves the waiver of a right and in some cases, the establishment of a title involving transfer of title, equivalent in its results to a sale.
This transaction agreement has effects of res judicata. When only made a written undertaking, in which the parties indicate what are the obligations of each, this does not have res judicata effect but serves as proof that there was agreement between the parties. The same applies to oral or oral agreements. The agreement reached by the parties legal effect as long as it is formalized by a notary or a Mediation Center.
Unable to mediate the civil status of persons, or on future food people who are required by law, if no judicial approval, no rights or rights of others that do not exist.
6 Direct Agreement:
is not regulated by law but as mediation has been useful in resolving conflicts and contributions to the quest for peace. In this figure does not involve third parties to mediate between the parties, as are those who approach them and seek to resolve the differences, then requires a process of awareness, a maximum tolerance acceptance error by the ends. Once
warring parties decided to end their differences, make regularly scheduled meetings in themselves expose their feelings and positions, by this figure can fix all conflicts permitted by the Commercial Law Jurisdictions , Civil, Labor, Agriculture, Family and Criminal. If transaction agreement between the parties, it makes res judicata serves as proof or if there is only one agreement.
7 Other less common and well known:
• The neutral evaluation of cases . Through this mechanism, an impartial evaluator analyzes information and arguments on a legal dispute which is raised by the parties, and it offers, as an expert, a technical opinion on the meaning of a possible verdict.
· Table dialogue and negotiation. in which the parties through a mediator or facilitator or negotiating, seeking settlement formulas and propose solutions. In Colombia were called to failure because they dye striped politician, also influenced the economic and external pressures from armed groups of organizations in other countries. But history has shown that the roundtables are mechanisms Ideally, suitable and complete for the achievement of peace.
GENERAL LAWS
1 Constitution of Colombia:
Article 116 paragraph final.
In which establishes the possibility for individuals to administer justice, in law or in equity, acting as arbitrators or conciliators.
Article 2 paragraph first. Makes it easy
participation of all citizens in decisions affecting the economic, political, administrative and cultural life of the nation. So given the right to resolve their own conflicts.
2 Decree 2279 of 1989.
Whereby are implemented dispute resolution systems between individuals and other provisions on arbitration and amicable
3 Act 270 of 1996.
Administration of Justice Statute. Article 8 and 13.
recognize the work of the administration of justice of the arbitrators and conciliators and determine which have the same responsibilities as judges of the republic.
4 Act 23 of 1991.
Through which mechanisms are created judicial offices congestion. Regulating the issue of reconciliation extrajudicial matters: work, family, administrative litigation, which sets rules for conciliation centers are regulated equity conciliation, complement and modify the rules of arbitration.
5 Decree 2651 of 1991.
which are issued by the transitional rules for judicial offices congestion. Amending some rules on conciliation and arbitration.
6 Decree 0800 of 1991.
which is regulated by alternative mechanisms of conflict resolution on decongestion of court offices in regard to inspections by police, the qualities to be, contraventions of the procedure for special the powers of inspectors and other officers of police, the special civil action in contravention of the procedure to be followed by the process against them, and penalties.
7 Act 446 of 1998. Through
which regulate the congestion, access and efficiency of justice. Rules are modified and extra-judicial reconciliation, regulating issues of administrative litigation conciliation, the conciliation of work and family, also modified rules on conciliation centers on equity conciliation, arbitration and regulate aspects of amicable .
8 Decree 1818 of 1998.
The status of alternative dispute resolution of conflicts. Existing rules are compiled and refurbished in the preceding provisions. Addresses issues of court settlement, court, arbitration, conciliation and amicable equity.
9 Act 434 of 1998.
which creates the National Peace Council and regional councils, municipal. Delegates responsibilities to managers of local authorities to chair these councils and sets the policy of peace as a state policy, permanent and participatory. Imposes a duty on all organs of State and forms of organization, action and expression of civil society to collaborate in a coordinated and harmonious in the structuring of the Councils.
10 Act 497 of 1999. Through
which creates the Magistrates and regulates its organization and operation.
11 Act 640 of 2001. Set
extrajudicial conciliation in law as a procedural requirement to appear before the civil courts, administrative litigation and family.
Decree 131 of January 12, 2001.
eliminated extrajudicial conciliation as procedural requirement to appear before administrative litigation in relation to the action for annulment and reinstatement of the right, leaving only the action under direct compensation and contract disputes.
13 Resolution 0198 2002.
determines the effective date of the conciliation in law and procedural requirement to appear before the civil and family courts.
[1] Judgement C-160, March 1999.
[2] MP Vladimiro Naranjo Mesa, Case C-037, 1996.
[3] Fedesarrollo e Instituto SER. Social Situation Nos. 14 and 15, 1996.
[4] Ministry of Justice and Law. The profile of the judges and employees of justice.
June 1995 [5] Fedesarrollo and Social Situation Institute Ser No. 15, 1996.
[6] Ministry of Justice and Law. Justice for the People. June 1995.
[7] Resolution 0198 of February 27, 2002
[8] Official Journal, No 45 112 February 28, 2003.
[9] MP Carlos Gaviria Diaz . Judgement C-165, 1993.
[10] Section 130 Law 446 of 1998
[11] Decree 1818 items 223-225 conc. Article 132 of Law 446 of 1998.
[12] Magna Carta of 1991. Title VIII, Chapter V, Article 247
[13] Civil Code, Art 2469.
