Saturday, May 24, 2008

Death Ruptured Hernia

De Luca, Joseph E. and another v. Banco Frances del Rio de la Plata. Joseph R.


Court: Supreme Court's Office.
Date: 25/02/1969
Parties: De Luca, Joseph E. and another v. Banco Frances del Rio de la Plata.
Posted: Failures 273:87. 1-1969-565 JA.
ATTORNEY GENERAL'S OPINION .- Considering the players, former employees of Banco Frances del Rio de la Plata in June 1959 were laid off by that institution (see fs. 3 and 6), claimed in these proceedings the reinstatement in their jobs "under penalty of law determined by 12637 and its regulatory Decree 20268/1945 " and the recovery of back pay from the date of each layoffs.
In the course of litigation the petitioners also invoked in support of their claims, the law 16507 (see fs. 212).
In defense, the defendant objected various defenses, including the unconstitutionality of art. 6 Decree 20268/1946. Later, also argued that the law 16507 invoked by the actors, was incompatible with the guarantees of the fundamental law cited in his presentation of fs. 215.
The final sentence of fs. 236 declared unconstitutional the latter law, but rejected, however, the opposite tacks against 20268/1946 decree mentioned above. As a result, confirmed resolution of first instance obrante to fs. 231, which had sentenced the Banco Frances del Rio de la Plata "to reinstate the players in their positions on the fifth day, and pay them monthly salaries and annual additional accrued since the dates of their severance pay until their effective reinstatement. "
As in the special appeal of fs. 340, the defendant, among other grievances, remains a challenge to articulate against art. 6 Decree 20268/1946, estimated from the appeal.
On the merits of the case, ruling on 26/7/1967 in the case "Caputi Ferreyra, Jose M. v. English Banco Rio de la Plata s / collection pesos, "I spoke to the constitutionality of that provision, with foundations that, in the interest of brevity, I would give as reproduced on this occasion (1).
On merit, therefore, I think the verdict is for .- Edward H. Marquardt appealed.
NOTE:
(1) The opinion states:
The court's ruling on bank obrante fs. 85/88 of these cars, confirmed by the C. Nac. Trab. to fs 114. condemns the English Banco Rio de la Plata SA Limited to reinstate the plaintiff, Dr. Joseph M. Caputi Ferreyra, ranking it played when it came his dismissal, which took place on 07.31.1957 (see fs. 41 of the record added). It the ruling that the aforementioned institution is obligated to pay the salaries that would have been payable to the applicant in the period between the dismissal and reinstatement.
The sentence was based upon the provisions of Decree 20268/1946 that force to reinstate the employees whose severance does not obey the grounds provided for by art. 3 12637 law, or otherwise, to pay equally the remuneration that would have been payable.
Now the bank has deducted an extraordinary appeal against the ruling at issue on the grounds that those provisions of Decree 20268/1946 are inconsistent with law 12637, regulating, and in violation of the guarantees of the arts. 14, 16 and 17 CN.
I believe should be noted, for a better understanding of the case, the need to measure the true scope of the contested decision in the light of what is required by art. 2 12637 law, according to the text established by Decree 15355/1946 , and art. 6 Decree 20268/1946, in the sense that bank employees are entitled to be kept in his career until we were only able to obtain pension benefits.
Accordingly, if at the time of issuing the ruling that ordered the reinstatement of the employee it is in a situation retirement, it is clear that the mandate of no effect reinstatement.
To some extent this is what happens in the case, as the sentence itself, as also provided for the payment of salaries would have been for the actor to continue in their jobs during the time until the conclusion of the litigation, is to give one, which was not eligible to retire when there was unemployment, a sufficient basis in order to receive pension benefits under the insurance scheme for bank staff.
In fact, the obligation to pay the salaries just alluded to is, of necessity, the recognition of subsistence uninterrupted link that bound the parties. This granted, it would be applicable to the case of Dr. Caputi Ferreyra the provisions of art. 9 law 16588, which gave the bankers the ability to compensate for lack of years of service required to achieve normal retirement, the excess on the minimum age set by the law itself 16588 as a condition for the benefit .
By virtue of this rule, and granted the stay of the employment relationship, the actor would have a right to pension born with the rule of law above, it then had old enough to compensate for fifteen years of banking services needed to still meet in If I had no other computable (they are not appropriate to clarify, those referred to the report of fs. 65), in order to get pension benefits by the National Social Security Fund for Personal Banking and Insurance (see terms of age the plaintiff, the testimony of writing that looks at fs. 1 of the record added, and with regard to years of banking services provided, which is manifested fs. 3 row. of that cause).
This established, and since it was clear the bank will forgo the services of the actor can not be presumed the continuation of the employment relationship beyond the point to which the law guarantees the stability of the employee, ie, until the time that this might get retirement. Therefore, it is clear that, from the point of view of the decision under appeal, the relationship between the applicant and the bank should definitely be completed by when it was put into effect the law 16588.
So, then, that even if the appealed decision to stay, there would be for the bank's current obligation to reinstate Dr. Caputi Ferreyra, but only the remuneration payable for the period between the dismissal and the time he has to estimated dissolved within the employment relationship that, according to the above, extending from August 1957 to November 1964.
However, this does not deprive the defendant of interest to challenge the validity of art. 6 Decree 20268/46, which only has explicitly reinstated or, if not prove it, which paid the salaries of all relevant modes.
In fact, the charge that the sentence imposed by the bank derives from the implicit recognition, but forced the uninterrupted continuation of the employment relationship between the parties, which is a consequence of the criterion, founded as prescribed by the law in question, whereby they are zero layoffs in violation willing stability regime emerging 12637 law and this Decree 20268/1946 (see Monzon, "Dismissal of employees banking and insurance, DT 1965-229). Sitting
that, overall, the appellant's interest to put into question the aforementioned regulations, must examine the grievances lodged against the sentence fs. 114.
First, it should be noted that, as appellant himself has to admit it, not because the tax system introduced in establishing a privileged position in favor of the employees are not reinstated against those who remain to provide services, subject to the risks matters continued occupation, then under the VE case, this blemish can only be invoked by those whose injury would take place discrimination question (Verdict rendered in re "Flores, The Real Estate Co. v. Elvio. Argentina de Seguros Generales"-F. 24 L. XV -, dated 27/12/1965).
Among other grievances articulated by the appellant, one refers to the incompatibility between the law 12637 and the requirements of its regulatory Decree 20268/1946 applied to the sub judice, the issue as stated by examining a flaw Similarly, in the precedent cited in the preceding paragraph, also supports the special appeal, since it refers to the interpretation of federal rules governing not the case.
But as any to challenge deduced guarantees support the arts. 14 and 17 CN ., I think that it is founded, and for that reason I would advise the review of the criteria laid on the point in the sentence above remembered.
I think, first, that the system stability of the banking personnel, as required by law 12637 and its regulatory Decree 20268/1946 , denies the right to attend private companies to run their business with a reasonable margin of autonomy, which certainly ensures the art. 14 CN. when enshrines freedom of trade and perform any lawful industry.
As is known, art. 3 law 12637 as amended by Legislative Decree 15355/1946 and art. 8 Decree 20268/1946 exhaustive list of justified reasons for the dismissal of bank employees, which are: a) judicial conviction for crimes against the bank or a third party, b) physical or mental disability, c) chronic infectious disease that poses a threat for staff; d) prolonged or repeated absences; e) severely and repeatedly disobeying the orders and instructions given to employees in the exercise of the respective banking functions, or disorderly conduct; f) salary recurrent seizures.
Outside of these circumstances, in accordance with prescribed by art. 6 para. 1 Decree 20268/1946, banks have no right to layoffs of employees, under penalty, as I have said, to pay, should not access your return, wages he would have received perceive to be able to obtain pension benefits.
The only exception provided by the decree mentioned in the case of a final cessation of the activities of the body, since in that case the employment relationship simply dissolves, recognizing employees only entitled to compensation equal to one month's salary for each year of service (art. 6 para . 4 º Decree 20268/1946). Is disputed, however, if the cessation of activities in a particular place, caused by the closure of a branch, can be compared to the case covered by that standard (see "Treatise on Labor Law," directed by Deveali, Mario L., t. III, 1965, p. 363, n. 4 and footnote 312).
Therefore, banks are prevented from losing the services of dependents even if they have repeatedly committed serious offenses do not deserve the confidence of the institution, which is particularly serious when one considers, for example, in the situation is created to place an acquittal for doubt, or when employees, without making serious mistakes, end up showing total inefficiency (in the latter regard see the case referred to "Labour Law Treaty" cit., p. 405) . Also be retained employees for which there is no longer useful task to perform, which is precisely what the defendant alleged in this case, or whose posts you agreed to delete by pressing reasons of economy. Nor can it be solved by this way the relationship problems that may preclude the useful collaboration of the staff of a company and sometimes find no remedy but in the separation of a dependent. It is also possible to note that the right to own stability, resulting in restriction to the bank, was born after a shorter period of testing, which now, after the repeal of Decree 5547/1959 by Decree 1368 / 1963, is only six months.
Since then, we see that there is mismatch between the regimes of stability of this class and the basic requirements of a rule in which economic management is private.
In fact, this consideration explains the art. 14 new fundamental law that establishes the stability of public employees is limited to ensure that workers in general, protection against arbitrary dismissal.
This arises from the conventional exposure reported on the point, distinguishing between the sphere of public law in which discretion is the exception, and the relations of private law in which one is the rule, citing also the opinions of Barassi, who, while not accepting the argument that stability is exclusive of public services, recognizes that it is rare in the field of private law because the limitation is important for the autonomy of employers.
reporting member also expressed that "it is very difficult to force an employer to reinstate in local business, for reinstatement to employment, the employee whose services you want to stop using," and that "no issue in the case of a purely legal difficulty can be overcome by restraining or compulsive convictions are so common in Anglo-American law, and that isolated cases have been enforced in our country, but a logical impossibility and human case of the merchant and banker, highly trusted employee, et cetera. "(Diary of Sessions of the National Constituent Assembly, t. II, 1957, ps. 1226 and 1227).
The difficulty, as has been seen, but, however, has not been determined whether it prejudice in all cases (apart from the union representatives, which is not a question), to be extended to the private field a regime of stability as is proper for public employees, or whether, instead, there would be scenarios in which the legislature, certainly an exception, would be empowered to create such systems in the area mentioned in second term. Be that as it may, it is clear from the words of the reporting member, in respect of personal banking, among others, it was inappropriate for the legislature to exercise the power referred.
For my part, I think the issue should not be formulated in such terms, because it established the different nature of the private sector, whose sign is autonomy, with the subsequent recognition of a wide area in which individuals are entitled to exercise discretion and prudence, and governance, in which the law is the fundamental principle, a rigid stability system as exists in the latter field is not applicable to the first. This does not, of course, that, pursuing legitimate social objectives can be established regimes by creating more flexible compensation system to better protect workers, taking into account their length of employment, the conservation of this until there is reasonable cause to justify the separation.
In such cases, the main thing is that the systems in question do not come to abolish virtually discretionary power is essential to recognize private companies with regard to the integration of its staff. This obviously not the case if, as in the hypotheses examined here, cases admitted to justify the dismissal are so few that even prevent the separation of a single serious offense, and no account of the delicate situations that occur when it breaks the trust relationship between employer and employee.
These considerations seem sufficient to conclude that the Law 12637 and Decree 20268/1946, as limiting the causes of unemployment to exclude situations like those described above, among which has, of course, the continued failure of tasks assigned to the employee, who is, as I said, what the defendant claimed here, do not respect the minimum requirements of the guarantee of art. 14 CN. in order to recognize a sufficient level of autonomy to power own management of private enterprises. I have advance
not only from this point of view I find invalid the disputed rules, but also are considered in light of the security of the property. I do not agree, in fact, the thesis that supports the decisions in that case "Flores, The Real Estate Co. v. Elvio. Argentina de Seguros Generales," according to which the payment of salaries without any consideration by the employee harms the security of property and the employer ignores an act of free will to use the dependent activity offers.
This argument is apparently satisfactory, because often employers must pay compensation for time not worked, whether it obeys the obligations, and welfare, as is the case of annual leave, sick leave, maternity, etc., or because the work is been interrupted following the arbitrary exercise of the powers of direction of the employer, which happens, eg, in the cases of unjustified suspension and lock out offensive.
But in all these cases it is assumed that the worker effectively integrates the body of the company, and is the real link you create for it the duty of solidarity which is the obligation to pay wages during periods which, momentarily, not serviced, But in the end, though at certain moments in the completion of the work is suspended, the clerk is not disconnected from the company is always regulated activity in consideration of the requirements, including social and human the organization of it, and alternatives of their operation. Therefore, from the point of view, we can say that leisure itself the interruption of work is somehow a real service, as the clerk is not for free disposal of their activity, but compliance to the management of it by the employer.
Very different is the situation of persons, not having been reinstated, does not belong the company, since which can not be said to interrupt the work normally done, but actually has no such work, while enjoying substantial freedom to get out of your time, no other limit than the choice of it deems the most convenient for themselves if they are again called by the entity formerly played.
Ultimately, it is the actual participation in the economic body is organized enterprise that decides on the obligation to pay the fees, even in certain periods of interruption of work, but, just, just complete fiction could be said who is a member of that body who has not been reinstated a él.
Estimo, en consecuencia que el pago de las remuneraciones aludidas, en cuanto tales, no encuentra justificación alguna.
Por otra parte, entiendo que tampoco cabría considerar que las sumas correspondientes sean el resarcimiento de un acto ilícito constituido por el despido y la negativa a la reincorporación.
En este orden de ideas, es preciso señalar que si se tratara de una verdadera compensación del daño, la obligación establecida por la ley sólo reposaría sobre una presunción iuris tantum que podría ser desvirtuada por el empleador demostrando en cada caso la posibilidad de que su antiguo empleado obtuviera ingresos en nuevas actividades.
Tal presunción sería por absurd Moreover, by assuming the opposite of what usually happens, it is not uncommon for people capable of useful work are unable to use their time in some productive work.
worth highlighting in this way, the different nature of severance created by Law 11729, as it obliges the employer to give the clerk a deferred compensation earnings in order to put as much as possible, safe from economic pressures during the time it take to get a new occupation.
If, therefore, I sought some reason the obligation laid down the rule that objects to the appellant, it would not be but the exercise of repressive power of the state. But then, it would be necessary to prove the validity of using that power for the purpose of forcing compliance with the obligations at issue here.
alleged, by definition, a solution so, this would, however, accept a theory that conceptualizes not admissible.
In fact, one thing is mere civil penalties, always linked to compensation of damage that, therefore, must be received by those entitled to compensation, and other, however, if it is real and serious penalties are imposed on the exclusive benefit of private parties as well come with the restoration of one type of institution's own forms of social organization before the modern state.
The payment of the amounts in question appears, therefore, only as a tax benefit of certain individuals, ie an enrichment of some people at the expense of others with no valid reason for doing so.
Well, it has been recognized as certainly no State is allowed to proceed in this way even if pretext for the exercise of taxing powers, because not for that, or for any other reason, you can take the property of some citizens to to give to others without any title to receive (see Cooley, "Constitutional Limitations", vol. II, 1927, Boston, p. 1034). If so, the legislature can not make such acts available arbitrary property of individuals by way of exercising the powers emanating from the art. 14 new CN.
Moreover, when creating charges which only one group of people to seek a benefit given to another, it is necessary in regard to the principle mentioned that mediate linkages between sectors to justify the services required (doct. Bug 250:160, consid. 3). Even more so this requirement applies if the benefit derived is given, as is the case here, an objection which may result from the ethical point of view, he who receives the benefit obtained, no activity on his part, a sure win with which can normal discharge his obligation to work, or at least created an additional source of income.
In this regard it should be borne in mind that although this is not the situation that exists in the sub judice, by this means it is possible to establish, in certain instances, the obligation to provide free of charge, a kind of income Lifetime important for young people who likely have very long before him years of fruitful activity.
way it is also possible to observe that the period for which should benefit referred decreases as age increases, so most favored are those with lower degree of stability.
The scheme appears, therefore, from any angle you examine it, as unreasonable, so that it can not be put under the protection of the doctrine of the Supreme Court according to which the benefits provided by regulatory standards of the employment relationship as a requirement of justice in the subordinate labor organization, can not be challenged constitutional grounds if they were not unreasonable or capricious.
In summary, therefore, conclude, first, that the aforementioned stability system is not compatible with freedom of commerce and industry guaranteed by art. 14 CN., While prevents severely coercive means, exercise the minimum discretion must recognize private companies in order to address their activities.
Secondly, I believe that the sanctions regime established by Decree 20268/1946 is harmful to the security of property, even assuming, by way of hypothesis, that the standards issues under the requisite inherent requirements autonomy guaranteed to the private sector by the art. 14 CN. Sitting
above premises, can not keep the sole obligation actually be derived from the judgment-that is, as I have said, the benefits are paid that would have received if working actor during the time between the dismissal and the time of the sentence be final, should be considered as one born to the right to retire, and that the imposition of such charges stem from an argument based only on the prescribed by any rules invalid.
therefore supported the inapplicability of the system of privilege established by law 12637 and Decree 20268/1946 , I understand that any law that assists the applicant is not but to claim the compensation provided by law 11729 (see Unsain, "Compensation for dismissed employees in the Banking Act, DT 1941-3).
I think, therefore, corresponding to revoke the ruling has been appealed as being subject to appeal .- Edward H. Marquardt.
Buenos Aires, February 25, 1969 .- Considering: 1. That the decision of the court sentenced the defendant bank bank to reinstate the players in positions they played at the time of his dismissal and pay them the salaries they would have accrued from the time of it until his actual reinstatement. Appealed that ruling was confirmed by C. Nat Trab., And it is against this last statement that was brought to fs. 340/352 extraordinary remedy, granted to FS. 353.
2. The plaintiffs, Dominic A. Rinaldi and Joseph E. de Luca, were laid off from their jobs Bank French River Plate, 8 and 22/6/1959, respectively, because of not having gone to services adhering to the strike declared by the guild bank. Following that decision, because the bank refused to reinstate them, they deduced the present application, based on the law 12637 and its regulatory Decree 20268/1946 .
3. That the decision of the court a quo, while admitting the unconstitutionality of the law as 16507 could alter the procedure and decide on cases pending at the date of its enactment, dismissed the appeal against the decree made 20268/1946 and, on its merit, has favored to the demands of the actors, who considered arbitrarily dismissed.
4. That the defendant bank subject to this Court review of the relevance of the obligation imposed by the AP. 3 of art. 6 20268/1946 decree, because in his view the provision, regulatory 12637 law, violates the guarantee of art. 17 CN., Reason for which the extraordinary remedy is appropriate.
5. That the grievance should be upheld because, in effect, is obviously outrageous, and damaging lack of reasonableness of the security claimed that the unfair dismissal of an employee belonging to any of the institutions subject to the provisions of Law 12637 may bring to an employer who does not agree to reinstate the obligation to pay, for life, all salaries have been able to correspond to the time it reaches the right to retirement.
6. That the intrinsic injustice of such a system, as enshrined the right to be paid, and even to reach the retirement benefit, no work, pecuniary burdens, exceeding what is the legitimate right of compensation for unfair dismissal, affects undoubtedly, the basis on which rests the freedom of contract, because it imposes the obligation to pay wages that do not respond to any consideration of work, so, unless the avenge-employer against his will, to continue to maintain in office employees do not enjoy the confidence that should prevail in all relationships of dependency.
7. Which thus affected the security of the property because the Court does not share, in its present composition, the argument in the case of failures 263:545, according to which "the payment of royalties, without consideration of the agent until reaching the right to retirement, it is not necessary conduct but the result of voluntary activity regardless of one by the company, discretionary attitude, moreover, the tax deprives enough to challenge those economic consequences for services not rendered by own desire. "In this regard, this court finds that once the employment relationship is broken because of an unfair dismissal should be granted the right to claim reasonable compensation proportionate to the damage suffered. But that can not be accepted as legitimate load continue to pay remuneration as such without any justification.
8. That, in these conditions, as argued by the attorney general, "the payment of the amounts in question appears, therefore, only as a charge for the benefit of certain individuals, ie an enrichment of some people at the expense of others without valid reason to justify it. "To which I might add that the lack of justice of such a provision is susceptible to objections even from the ethical point of view, as also claimed by the attorney general, as the contested provision, to consecrate the privilege of paid leave a job without compensation, is to set up a kind of income Lifetime free nature, based on the sole discretion of the legislature, to ensure that beneficiaries gain some no activity on their part are exempt from the normal obligation to work.
9. That the arbitrariness of the system becomes even more apparent when one considers that the wording of the provision in question leads inevitably to accept the right to enjoy retirement by virtue of work not performed, con desconocimiento del elemental principio de que tal beneficio constituye el reconocimiento al derecho de descansar después de largos años de servicios. Y con el agravante de que tanto el derecho de cobrar estipendios a cargo del ex empleador como el de jubilarse en condiciones tan anómalas vendría a adquirirse por el solo hecho de haber trabajado seis meses en forma efectiva (decreto 1368/1963 ).
10. Que lo expuesto es suficiente para demostrar que no se está en presencia de una verdadera indemnización por despido arbitrario, sino de una especie de sanción represiva impuesta a la entidad que se niega a reincorporar al empleado; sanción que a su vez asume, desde el punto de vista de éste, el carácter a constraint, the more substantial the shorter was the period of work, since ultimately the art. 6 Decree 20268/1946 leads paradoxically to further benefit those with less seniority and less, however, who have more years of work.
Therefore, in accordance with the attorney general ruled in the case mentioned at fs. 378, and without prejudice to the right of actors to claim the compensation to which entitled any, is revoked as the original ruling could be the subject of an extraordinary appeal .- Eduardo A. Roberto E. Ortiz Basualdo .- Marco A. Chute .- Risoli .- Luis C. Joseph F. Cabral .- Bidau.

Friday, May 16, 2008

Musicas Gratis Para I Pod

Dromi s / certiorari in: E. Moses Fontela c. National state


Supreme Court's Office (CS)
1990/09/06
PARTIES: Dromi, Joseph R. s / certiorari in: Fontela, Moses E. c. National state

Buenos Aires, September 6, 1990.

Considering: 1) E. Moses Fontela, "by itself and as representative of the people", promoted an injunction to the effect that the national state is ordered that the corporate form to be taken by the company "Aerolineas Argentinas", as a result of the ongoing procurement process, frame is "within the prevailing rates as it says the art. 6 of Act 23,696." The Minister of Works and Utilities, to evacuate the required report, questioned the legitimacy of the actor and the consistency of their arguments. In turn, the national court of first instance in federal contentious - Court No. 2 -, felt entitled to the applicant on the basis of supporting the viability of "public actions or popular," and had resulted in demand, ordering the national state to "frame the company to be created within the provisions of art. 6 of Act 23,696. #

latter statement led the State to deduct appeal directly to this Court, which ruled suspend the effect of this ruling, according to the existence of federal question, given their importance, exhibited serious institutional, and come in a clear and manifest that the consequences of the decision appealed against could translate grievances subsequent repair impossible or insufficient.

Subsequently, he was rushed to the actor a shipment for 10 days, which was answered.

2) The circumstances set out above, relating to the mode with which this case has come before the court, require careful balancing. In fact, there was found in the game, first, the requirement of court that should come the ruling challenged by special action, ie the collection of superior court in the case pertains in that appeal.

In this sense, the rule in regard to the procedural regime of the federal courts, is expressed in art. Act 6 of 4055: "the supreme Court, finally, on appeal from final judgments rendered by federal appeals cameras ... as provided by art. 14 of Act 48 .. .. "

3) That the Act 4055, of January 11, 1902, resulted in major reforms in the organization of the federal courts to create courts of appeals. The reasons at the time by the legislature have been specially set the conditions necessary for the court to satisfy the high ministry that has been entrusted; purpose to which it contributes the existence of such courts "intermediate" is because before they could find the parts to repair the damage incurred in previous instances, without recourse to the Supreme Court, either because In order to check for this and certainly would be a more elaborate product (Failure t. 308, p. 490, Cons. 5 ° - Rev. Law, t. 1986-B, p. 476 -); "Diary of meetings of the Senate", the period of 1901, Congress, Buenos Aires, 1961).

4) What, precisely the purpose of the standard under consideration, a stable point that its rigorous implementation imposes a bit which is perceived to depend on it, but not limited to the smooth running of this high court. Then, as was pointed out about the special appeal connected with decisions from provincial courts, it should be reiterated for the scope of the federal courts, that the admissibility of that appeal is conditional on the statement that was intended to bring to trial the Court is not likely to be reviewed by a judicial body, or even the same as issued (Failure t. 308, p. 490, Cons. 4 °).

5) That, however, the same purposes and lay foundations that lead to the conclusion above, guarantee a level consistent with a similar exception to, but highly restricted. Indeed, the creation of the aforementioned federal chambers, as has been seen, has the explicit purpose of preserving the proper functioning of the court preventing the entry of causes, but by its nature would be within their competence, they could receive in settlement other federal agencies that the law established.

It follows from this that, when federal issues exhibit unmistakable and extraordinary circumstances of gravity, total evidence and demonstrate the need for their "final" expeditious solution is required for the effective and appropriate protection of general interest, the important reasons that underlie the superior court that requirement should be harmonized with the requirements set out above, that the regulatory framework that seeks the court's efficiency does not conspire against the efficiency of its administration of justice to that in rigor must pay taxes every procedural system.

opposite holding in mind the same rules designed to enhance the Court's judicial role, is the source that paralyzed his speech, precisely on the grounds that it might be required without delays and for cases that are more characteristic . Must be discarded, then, all intelligence, based on strict adherence to procedural forms, eventually produce the impotence of the judicial body itself as better and more just those work should serve (Bug doctrine t. 243, ps. 467, 476). Such harmonization

certainly difficult, is achievable by a hermeneutics that while jealously guard the designated purposes of the Act 4055, makes possible that, without diminishing it, do not be late - and thus, ineffective- - the court action.

In an effort to reconcile the irreconcilable, was Judge Benjamin N. Cardozo one of the most essential functions of the judiciary.

6) That, indeed, the jurisprudence of the tribunal no stranger to proposals of similar characteristics, not its admissibility refractory. Indeed, it has deeply rooted the doctrine that the existence of aspects of institutional gravity to justify the intervention of the Court surpassing apices of constitutional procedural frustratorios entrusted to it (Bug t. 197, p. 426, t. 244 ps. 203, 235, 245, t. 245, ps. 216, 311, 467, t. 248, ps. 189, 503, t. 263, p. 72, among many others - Rev. Law , v. 33, p. 146, t. 98, ps. 728, 700, t. 101, p. 835, t. 103, p. 22 -). It is, in fact, conditions relevant to the efficiency of constitutional control and the federal appeal that this Court should meet, as consideration has traditionally guided the interpretation of the rules governing the jurisdiction that has been agreed with the court by formal law of Congress, the arts. 14 of Act 48 and Act 6 of 4055. Moreover, it is a trend observed in the same way in the U.S. practice and that is reflected in the procedural rules issued by the Supreme Court of the United States "U.S. Supreme Court Digest", t. 17, p. 19 and Sigtes. (Failure t., 248 p. 189, consid. 3 ° - Rev. Law, Vol 101, p. Number 835 -).

Thus, it was explicitly argued that "Purely procedural aspects of the extraordinary remedy ... not necessarily preclude the granting of the appeal, in cases of existence in the case of institutional interest enough to effect" (Failure t. 262, p. 246 - Rev . Law, v. 120, p. 950, error 12843-S -).

In this sense, it is starkly eloquent extensive series of decisions handed down in various dates and various integrations of the court, which ruled that cases of serious or institutional interest, or similar circumstances, permitted to exceed certain precautions admissibility of the extraordinary appeal. Worth, as example, the following precedents relating to: a) introduction of the federal issue: Failure t. 248, p. 612; b) lack of specific grievances about the federal rules apply: Failure t. 262, p. 7 (Rev. La Ley, v. 120, p. 941, error 12787-S); c) procedural issues to be debated: Failure t. 197, p. 426; t. 243, p. 496; t. 250, p. 699, t. 251, p. 218, t. 253, p. 344, t. 256, ps. 62, 94 and 491, t. 257, p. 132, t. 261, p. 36, t. 262, p. 168, t. 264, p. 415, t. 292, p. 229 (t. 106, p. 256, t. 108, p. 680, t. 111, p. 268, t. 111, p. 765, t. 112, p. 8, t. 1976-B, p. 422, 33 411-S error) d) not final judgments: Judgments t. 167, p. 423; t. 176, p. 20, t. 182, p. 293; t. 185, p. 188, t. 188, p. 286, t. 194, p. 284, t. 216, p. 396, t. 248, p. 664; t. 260, p. 204; t. 265, p. 155 (Rev. La Ley, t. 14, p. 120, t. 16, p. 756, t. 20, p. 865, t. 29, p. 17, t. 105, p. 568, t. 118 , p. 919, 12 172-S fault, t. 21, p. 966), e) judgments of urgency and executives: Failure t. 247, p. 601; t. 256, p. 517; t. 266, p. 81, t. 286, p. 257; t. 295, p. 95, t. 296, p. 747 - Rev. Law, t. 112, p. 256; t. 126, p. 166, t. 151, p. 516 -), etc. Also endorsing this doctrine, but by decisions that rejected for lack of resources the exceptional situation referred to, block remember: 1) Failure t. 248, p. 232 - belated appeals -, t. 259, p. 169 - grievances inappropriately introduced -, t. 262, p. 246 - appeal insufficiently founded -, 2) Failure t. 228, ps. 539, 542; t. 238, p. 391; t. 242, p. 55, t. 244, ps. 235, 425; t. 248, ps. 503, 633, 638, 641; t. 249, p. 89, t. 250, p. 426; t. 268, ps. 503, 546; t. 271, p. 31; t. 290, p. 531 - procedural matters -, 3) Failure t. 250, p. 108; t. 288, p. 159 (Rev. La Ley, v. 120, p. 950, 12 843-S fault, t. 77, p. 33, t. 76, p. 307, t. 87, p. 968, t. 103, p . 22, t. 106, p. 255, t. 129, p. 221, t. 134, p. 1099, Judgement 20 448-S, t. 107, p. 253) - not final judgments - ;, and so on.

Súmase this, that evidence of a serious situation building in cases where irreparable admitted the grievance caused by the court ruling resulted in enabling this instance if the special appeal, notwithstanding the existence of obstacles formal "is the only effective means for the protection of federal law invoked" happy expression as stated in his time in court (Failure t. 210, p. 396). The need for "immediate consideration, timely and appropriate to the nature of law committed," in cases such as indicated above, authorizes the federal road (Failure t. 257, p. 132). There

cases, was featured in t. Failures 182, p. 293 (Rev. La Ley, t. 14, p. 120), which is "better to look ahead to the federal question."

7) That it should make it clear that the application of the doctrine enunciated in controversies like the "under consideration" does not involve the extension of the court's jurisdiction to cases not covered by the legislation regulating it. It is only from the time that must be exercised jurisdiction agreed unequivocally that under unimpeachable record also should be effective protection required by the federal law known (Failure t. 210, p. 396, para . 3 °).

8) That, in the United States, similar purposes which have been reported on the 4055 Act (consid. 3 °), were persecuted by the "Evart Act of 1891, creating the courts of appeals circuit in order to reduce the workload of the Supreme Court of that nation, through the establishment of such intermediate bodies would know of the resources previously raised to face it (Wright, Charles A., "The Law of Federal Courts, p. 725, 4 th ed., West Publishing Co., St. Paul - .-- Minn. 1983). And, let us remember that in such circumstances, the high court before the reform legislation of 1925 and, therefore, not authorized by express rule ordered the lifting of the case to its podium ("certiorari") to rule on litigation pending at the said circuit courts of appeal, so the case reached the Supreme Court "as if it had been brought directly from the district court" (ie, courts) (Robertson, R. and Kirkham, Francis R., "Jurisdiction of the Supreme Court of the United States", p. 204, 1936 belongs to the case quoting "The Three Friends, 166 U.S. 1, 49, to similar effect:" Forsyth v. Hammond, 166 U.S. 506). But the high court said in these rulings, it is a power that should not ordinarily be exercised.

should be added, on this last point, that even after the year 1925 remembered, at which this doctrine of the Court was received in express terms in the "Judicial Code" the U.S., the court ruled, and applied the aforementioned power with particular rigor, highlighting their exceptional, whose employment is justified only to matters of "urgent public importance" that should be resolved "immediately" (see "United States v. Bankers Trust Co., 294 U.S. 240," Railroad Retirement Board v. Alton R. Co. "295 U.S. 330; "Rickert Rice Mills v. Fontenot, 297 U.S. 110," Carter v. Carter Coal Co., 298 U.S. 238; "Ex parte Quirin, 317 U.S. 1," United States v. United Mine Workers, 330 U.S. 258; "Youngstown Co. v. Sawyer, 343 U.S. 579," United States v. Nixon, 418 U.S. 683, cf.: "Supreme Court Rules, The 1980 Revisions, Rule 18, the care of Stern and Greesman , Washington, 1980, ps. 49/50. Also: Wright, Charles A., op. cit., p. 732, Robertson, R. and Kirkham, FR, op. cit., ps. 204/206).

9) That this order of ideas is particularly strengthened by the reforms introduced to the art. 280 of the Code. Civil and Commercial Procedure, by law 23,774, since, as pointed out the message that accompanied the then draft of the executive branch, it involves an "innovation" that "is based on the draft amendments to Law 48 prepared by the Committee established by resolution of the Ministry of Education and Justice No. 772, of 09.04.1984 "(Message No. 771, penultimate paragraph), which therefore means" the incorporation of Argentine law 'writ of certiorari "of American law" (Explanatory memorandum of the draft amendments cit., VI, c, 2), a conclusion with regard to this institute, which corroborate the parliamentary debates.

10) What can be inferred from what has been stated that the exception to the superior court in the order of the federal courts can not but be highly restricted ranges and unique setting. Otherwise, it would compromise the rule that the legislature enacted in that art. 6 of the 4055 Act altering, without serious reasons that justify the regular course of the proceedings, and disrupting the function of the court by which Congress must ensure through their mandates, and the Supreme Court through a case in the spirit of them.

Then, just causes of federal jurisdiction in which to manifest evidence is demonstrated by the recurring issues involving institutional gravity - understood in the strongest sense that he acknowledged the history of the court - and in which, with the same degree of intensity, is credited to the special appeal is the only effective means for the protection of federal law committed, authorized to waive the collection of the superior court to the effect that this Court enable the instance promoted using that resource to review the decision in the contested measures.

11) That, in order to avoid delays, irreparable consequences of which has merit, the same reasons which support the study exception, also play on the venue for the extraordinary proceedings, the "under consideration" was deducted before this Court. Add to this that the dossier was submitted to the court immediately after pronouncement of the court ruling as the term for the deduction of this remedy went to find the cause in court.

12) That clarified the formal aspects of the appeal, it is for the study of grievances made it. In this sense, a citizen who wields the actor to infer that amparo is not suitable - at the federal level - to authorize the intervention of judges to exercise jurisdiction. This is because such a general nature that does not allow, in the case, have to set the specific interest, immediate and substantial leading to regard this as a "cause", "case" or "controversy" only case in which the mind works can be exerted. That is what is in a peaceful court jurisprudence developed in situations substantially similar to those of "under examination."

For example, in cars, "Baeza, Hannibal Roque c. National state "(Failure t. 306, p. 1125, of 08/28/1984 - Rev. Law, t. 1984-D, p. 108 -), was denied the right to challenge actor constitutionally dec. 2272/84, by which the National Executive held a referendum on the terms of settlement of the border with Chile in the Beagle Channel.

also in "Lawrence v. Constantino Nación Argentina "(Failure t. 307, p. 2384, of 12/12/1985) rejected the claim to challenge the approval of the Treaty of Peace and Friendship signed with the Republic of Chile and the validity of two national secrets, which the petitioner had established its right to defend its institutions and the integrity of the Nation. Also

"Zaratiegui, Horacio et al v. National State s / invalid legislative act" (Z.27.XXII., Of 12.6.1988 - Rev. Law, t. 1989-B, p. 267 -), the Court adopted this position in relation to the order of unconstitutionality of the law approving the said treaty, that the actors had been based on the interest that every citizen had to keep the Argentinian territorial sovereignty.

the delimitation of its own sphere of national justice that emerges from those decisions was the ratification of a line of doctrine that began to be developed from the very beginning of the operation of this court.

13) That, likewise, does not confer legitimacy to Fontela, his claimed "representation of the people" based on the quality of national deputy invests. This is because the exercise of that constitutional representation has its pivot in the legislative branch for integration as one of its chambers was elected, and in the field of the powers given to that branch and its components by the Constitution and regulations of the National Congress. Nor

parliamentary quality mentioned him standing to act on "guard of the division of powers" to a possible conflict between rules issued by the Executive Branch and legislation passed by Congress since, irrespective of the latter body has that attribute or not procedural, it is clear that the plaintiff not represented in court.

14) That decision impacted by the lower court, undoubtedly, the policy framework which is chosen by the legislature and executive. Then, only the invocation of the erosion of rights or guarantees made by those who have been entitled to require the court amparo, could authorize the intervention of judges. Hence, the recognition by the lower court's legitimacy does not exist in the person of the petitioner, a prerequisite for the welcome he gave to their grievances, was an unwarranted and unjustified expansion of the powers of the judiciary. In this case, the excess has resulted in an unprovoked interference in the running of public affairs of obvious political importance and economic impact, which, according to numerous legal precedents that have been recalled, creates a serious case of institutional and also generated, by the time that it took place, offenses that would be impossible without further compensation or under an early and definitive care, possible only via the special appeal directly brought before this court.

15) That the Constitution has placed the government of the nation in the hands of three branches: legislative, executive and judicial. Within the scope of its powers, each of them meets the aforementioned function of governing the nation. It is up to the Supreme Court, in that order of segregation of duties, conduct the administration of justice under the laws that regulate it, guided in all costs, to the north route in the Constitution, ie "ensure justice" .

16) That one of the central aspects of the governmental function resides in the handling of procedures within the court routed to the causes that put in play at the National Constitution, the order of the emerging powers it and the rights and individual rights, since such issues are precisely those that inform his ministry more genuine, as the final interpreter Cut it and their ultimate custodian.

17) That the special appeal because the instrument par excellence for the exercise of this mission, it is clear that decisions relating to their technique are in agreement with the authority the Constitution conferred on the Court, real decisions of government whose validity derives from their adjustment to the Basic Law and the rules that Congress issued accordingly. Its success will result from the wisdom and skill that have been adopted.

18) That, of course, it is the government which is typical of the Judiciary, and prudence and wisdom and applied in this area, since it should be noted in this cause, connected with the government, prudence and wisdom relating to the administration of public finances and assets, and the design of the respective policies is proper matter and the other branches. Only a matter for the court, point to the acts adopted in such matters, to decide, in court cases, about its legality, not its accuracy, timeliness and convenience. And so, in what regards the procedural arrangements in accordance with the rules enacted for that purpose by Congress, but with full consciousness the deeper meaning and purpose than those enclosing.

As surely as one of the most delicate tasks of the Judiciary is to know to stay in the area of \u200b\u200btheir duties, they attributed to invading the other departments (Failure t. 155, p. 248, among others), is to affirm that in the area that is exclusive, its powers must be exercised with depth and energy that best meet the mandates of the Constitution and laws, and trust that the people lay on this power.

Then, this court considers it as its responsibility to intervene in this cause, as the political powers on the economic destinies of the nation and its people. Not, indeed, that of the courtroom, where they should be discussed and judged the goodness, wisdom, or timeliness of such policy decisions on public affairs. Our Constitution has wisely provided for this purpose, other forums and instruments. Such platforms, and this Court as head of the judiciary, set itself the causes of its competition, the place intended to ensure that all right, and even to prevent wrong, whatever the authority or power that seeks to ignore.

therefore annulling the ruling by federal judge intervening, with coasts on the charm. - Ricardo Levene (h). - Mariano A. Cavagna Martínez. - Charles S. Fayt (dissenting) .-- Henry S. Petracchi. - Rodolfo C. Barra. - Julio S. Nazareno (depending on your vote.) - Eduardo Moline O'Connor (depending on your vote.) Vote

Nazarene doctors and Moline O'Connor:

1) that following the presentation by the Ministry of Works and Utilities, taking into account the special circumstances and in order to preserve the public interest committed to the cause, this Court decided to suspend the effects of the ruling by the judge in the Federal Court of First Instance Federal contentious as No. 2, as he had admitted the suit filed by a legislator in order to challenge the process of allocation of the Company "Aerolineas Argentinas". That verdict, based on the dec. 1024/90 Executive Branch, to provide for the transformation of that company in a "corporation with minority state participation, type of company it considered not covered by the types or legal forms covered by existing legislation, the judge ordered the defendant (national state) "that qualifies the Company to be created within the stipulations of the art. 6 of Law 23,696, which contains that requirement.

2) That, however, the report was required, the head of the Ministry of Works and Utilities, questioning, among other things, the legitimacy of the applicant, objected in an implicit but clear the magistrate's jurisdiction to intervene in the question that had been proposed, which, in his view, should be brought within the legislative body to which the actor. The judge ruled on the first point, arguing about the need to provide legal protection to so-called collective or diffuse interests who played involved in "sub lite", but said nothing about the second point by referring directly to the merits. In doing so, failed to consider an approach that called into question the validity of the procedure, since the question articulated by the owner of the distribution of ministerial attacked the very scope of its jurisdiction in the case on the basis that lacked it against the attempt to use a road inidónea shaping of litigation to an issue that concerns the entire relationship the other powers that the Constitution statue, this is the Legislative and the Executive.

3) That given the nature of this latter issue, the court could not address the subject of the claim which had been submitted as an order of protection, without this implying dispense with a collection essential to enable intervention. Actions submitted to this court - which also required the applicant requesting the court activity abandonment of appeal - the consideration of these circumstances allowed to comment on this, any time you have questioned the scope and existence externalized it of the duties by the federal judge intervening. While the issue appears not configured as a contest of which, under normal conditions, it is for this Court to decide in exercise of the powers conferred by art. 24, inc. 7, the Legislative dec. 1285/58, the truth is that, as has been raised, involves, in the reality of the facts, a conflict based on the virtual lack of jurisdiction of a magistrate. With this perspective, without prejudice to the consequences involved in the solution has been to arrive ultimately not necessary to examine whether the conditions own special appeal, since this is not the way in which this Court takes its intervention in the case. Moreover, to pass a serious institutional question the existence of which would authorize the court to overcome, exceptionally, collections process (eg, failures t. 246, p. 237 - Rev. Law, vol 98, p. 506 -), including that application, as noted by the majority vote and that does not exist in the present case, she does not reside here in the nature of the matter but on the intervention of a judge of the Judiciary of the Nation in open apart from your competition, has altered the balance of functions inherent in the republican form of government.

4) That as this court, exercising a prerogative that is inherent implied as the supreme body of the legal system and final interpreter of the Constitution, has intervened to avert impairments to the judicial authorities or to prevent potential and exceptional developments in other national powers (Conf failures t. 201, p. 245, t. 237, p. 29, t. 241, p. 50, t. 246, p. 237 and others - Rev. Law, vol 38, p. 53, t. 89, p. 666, t. 91, p. 152, t. 99, p. 182 -), so he has, as part of its duty to draw the precise boundaries that have exercised those powers, without consideration of where and how the point it was proposed, to establish whether the matter in question is beyond judicial authority, which can not be extended by agreement of the parties, rather than they bring to the judges any dispute, the decision not theirs and they welcome it and speak out about it through a Case (conf failures t. 215, p. 492, t. 229, p. 460 - Rev. Law, v. 77, p. 474 -).

5) That with regard to the matter to which reference has been made in the preceding paragraphs, it should be noted that the "under consideration", the actor specifically invoked its legislative capacity (national representative) and, as such, claim to represent the people of the nation to petition as it did. In such conditions, the quality enables him to act invoked inside the body to which it belongs, where you can call the specific remedies that the Constitution provides for the realization of the Comptroller of the Congress on acts of the executive (eg. arts. 45, 52, 63, 67, incs. 7 and 16). In addition, it is only said body as a whole which has the representation of the people (art. 37, Constitution), not its members individually. Moreover, in matters, which the comptroller has been entrusted by the Constitution and the laws to other branches or specific organisms, that is, the Congress itself and the entities in which he, in turn, has delegated aspects of particularized such functions (eg. the General Inspectorate of Justice, the Comptroller General of Public Enterprises, the National Prosecuting Authority for Administrative Investigations, the Court of Auditors and even the Public Prosecutor), the question that ignoring such instances, we try to bring to the courtroom is, in principle and by nature alien to them, it is not permissible for judges exorbitant the limits of their powers and ac- , Tuen replacing those parliamentary mechanisms or forward on the features that have been assigned primarily to specialized agencies of intra or inter organic comptroller.

Otherwise, the judicial activity could be used to interfere with the results generated under the will of parliamentary majorities where the Constitution ensures dominance in the regular order of their operation; which is not possible to accept, without failure of the constitutional order that this Court should preserve, especially when - as in this case - administrative and judicial remedies are likely to correct errors that are reported as if in rigor not harmonize with the existing rules.

6) That the solution does not change because it marked the deduction of an "amparo" and that, under settled law of the court, this type of action does not involve altering existing institutions or justify the extension of legal and constitutional jurisdiction of the judges of the Nation (conf failures t. 259, p. 11, t. 263, p. 15 and many others ­­Rev. La Ley, t. 121, p. 239­­).

7) Que, en las circunstancias del caso, tampoco constituye argumento idóneo que justifique tal exceso, la invocación de los denominados intereses colectivos o difusos. Es claro que, en un sentido lato, ellos se encuentran involucrados en cada acto de gobierno y en gran parte de la actividad administrativa, pero esta circunstancia no confiere de por sí a los jueces la potestad de juzgar, sin más, sobre aquellos actos o de interferir en dicha actividad. En primer lugar, sólo pueden actuar los tribunales a instancia de quien invoque una legitimación adecuada al objeto de la acción que intenta promover y siempre en la medida en question of justiciability issue, namely that judges are able to decide not assume specific responsibilities of the other branches of government. In addition, the claim should have a residual character, ie that judicial protection of diffuse interests - except when based on a regulation that establishes and defines its scope - can only be eligible once they have exhausted the administrative or the mechanisms of the organs whose specific expertise is to meet the requirements supraindividual concerned. If otherwise be understood, the jurisdiction of the courts could be extended unlimited under the single invocation of this category of interest, contrary to the letter and spirit of the Constitution, based on the republican principle of separation of powers.

8) That, in these proceedings, the existence of "other means at its disposal" to give effect to the Comptroller of the Executive Branch actions at issue - which preclude the admissibility of express statutory mandate under (conf art. 2 °, inc. a, Law 16,986) - has been expressly recognized by the actor fs. 66, but sought to justify the courts chosen by the "urgency" which he attributed to the question. Opinion also the holder of the General Inspectorate of Justice to work on fs. 6 / 10, shows that in the area of \u200b\u200bjurisdiction of that body must carry out the comptroller prior to the registration of the new corporate entity in question and whose criminality raises the objections of the actor (see arts. 3 ° 4, incs. cyd, 6 and 7, Law 22 315). Any decision in this regard could be taken, would then have sufficient judicial review to the relevant law provides (Art. 16 to 19, Act). So that if, even disregarding the aforementioned circumstances, the order sought to be interpreted as a massed accessible route attempted judicial, resolution issued by the magistrates involved would also have the implied meaning of a denial on the demurrer articulated by the owner of the distribution of ministerial and would have frustrated the normal work early a question of jurisdiction would also unique spring of this Court defined (art. 24, inc. 7, dec.-Law 1285/58, cited above), since it is the discretion of the court that considerations of judicial economy to settle with an immediate delivery and dispensing of any defects approach to such issues (conf doctrine Trouble t. 298, p. 721, t. 302, p. 672, t. 307, p. 1842, etc.). All this, of course, subject to parliamentary mechanisms that the actor is entitled to call on the body part.

9) That, under these circumstances, we conclude that the intervener magistrate has no power to hear the question that has been made. His decision, issued without addressing the proposition made by the body prior ministerial beyond the "nomen iuris", denouncing the lack of matter jurisdiction over the case, disability is affected, as it has solved the Court in cases like (see Fault doctrine t. 294, p. 25 - Rev. Law, t. 1976-B, p. 367 -; t. 305, p. 1502, and appointments to t. 307, p. 1779).

therefore annulling the ruling by federal judge intervening, with coasts on the charm. - Julio S. Nazarene. - Eduardo Moline O'Connor. Dissent

Dr. Fayt:

1) That Moses E. Fontela, national deputy, initiated amparo proceedings before national courts in the contentious, originating cause "Fontela, Moses E. c. national state s / amparo" (later admitted to this Court "and added" to the cause D. 104 - , 1990).

The impetrante, in essence, sought to amend the dec. 1024-1090 Executive Branch and to suspend the bidding process related to him, concerning the Company Aerolineas Argentinas.

2) The trial judge admitted the action. Had, for its decision, especially in regard to the arguments made by the director of the General Inspectorate of Justice, in the opinion that he was required by a bicameral committee of the National Congress at the time of the enactment of Law 23,696, regulatory framework which is part of the bidding process questioned. In that it was held that the typicality of the companies has its crux in the legislative provision, as are those who can not depart from the rates set by the legislature. It was also stated that the principle of criminality has been adopted by law societies and public order, consisting of the adequacy of the establishment of them in respect of social types or legal frameworks preset by the same law. Consequently, he said, or are facing a typical company, or conversely, there is an irregular company with all consequences that this entails and that surely were not targets of the bidding process.

resolved that in the case defendant was not void of dec. 1024, amending the bidding documents called before, but the change of corporate structure to be adopted by the new company to be created by what order the defendant ordered that compose the society to be created within the provisions in the art. 6 of Law 23,696.

3) That prior to the decision of the judge, was presented directly to this Court by the Minister of Public Works and Services and asked for certiorari of the Court, prior to the issuance of any decision on the case by the judge. He quoted the alleged existence of a conflict of powers of the federal state originated in the magistrate's action, which would lead to a situation of institutional gravity. Understood based their claim on the interpretation made by the art. 280 of the Code. Procedure, and stated that the consequences of any decision in the case could become impossible to translate into grievances of further repair.

4) That by resolution of 07.12.1990 signed by one of its judges, the court requested to send the case to the judge. They arrived, and they worked in the ruling referred to above, issued on 07/13/1990. The Court then decided to stay the purposes of that (decision of the July 13).

5) That the judge's ruling against the Minister of Works and Public Service's Office appealed, reiterating the request for certiorari to this court to the cause. Added to the reasons put forward to justify the procedure as described como una errónea interpretación de la legislación de las sociedades comerciales y empresas públicas, como así también del régimen jurídico que rige las sociedades irregulares. Solicitó la revocación del pronunciamiento apelado y la suspensión de todos sus efectos jurídicos.

6) Que la Constitución Nacional ha conferido a esta Corte el carácter de tribunal supremo de la República (art. 94), y le ha asignado distintas atribuciones. Algunas de ellas se diferencian nítidamente de sus funciones judiciales principales y exclusivas, tal el caso de las reglamentarias contempladas en el art. 99. Otras acrecen su esencial cometido, así su elevada responsabilidad de dirimir las quejas interprovinciales (Art. 109). But focusing the review in its primary judicial functions, as well as definitively established cases of original jurisdiction, the constituents were strict in that they must be "on appeal by the rules and exceptions prescribed by Congress."

7) that congressional legislation is clear in other terms, in cases such as this, the matter should be resolved by an Appeals Chamber prior to the intervention of the Supreme Court. In this sense, the rule in regard to the procedural regime of the federal courts, is expressed in art. Act 6 of 4055: "the supreme Court, Finally, on appeal from final judgments rendered by federal appeals chambers ... as provided by art. 14 Law 48 ...".

8) That the Act of January 11, 1902, produced important reforms in the organization of the federal courts to create courts of appeals. The reasons at the time by the legislature have been specially set the conditions necessary for the court to satisfy the high ministry has been entrusted; purpose to which it contributes the existence of such courts "intermediate", or because before they could find parts repair for damages incurred in previous instances, without recourse to the Supreme Court, either because the object to check for this and certainly would be a more elaborate product (Failure t. 308, p. 490, Cons. 5; "Journal of the House Session Senate "period of 1901, Congress, Buenos Aires, 1961 - Rev. Law, t. 1986-B, p. 476 -).

9) What, precisely the purpose of the standard under consideration, the Panel noted that imposes rigorous application as soon as one note that it depends, but not limited to the smooth running of this high court. Then, as was pointed out about the special appeal connected with decisions from provincial courts, "it should be reiterated for the scope of the federal courts, the admissibility of that appeal is conditional on the statement that was intended to bring the Court's opinion is not likely to be revised by another court, or even the same as issued (Failure t. 308, p. 490, Cons. 4 °).

10) That "lege data" can not be drawn from the 4055 law no exceptions for what should be the court which handed down the sentence can be challenged by an extraordinary appeal with this Court. Do not allow either the text of the law, nor the debates that preceded its passage, nor the interpretation which has received for nearly 100 years of operation. However, the issue is clarified further if repairs on the history of "per saltum" in comparative law, especially law and jurisprudence of the United States, whose constitution is the exclusive source of our arts. 100 and 101.

11) That in continental European law can find examples of removing scale process, but always set to "formal law", so the art. 1688 of the English Civil Procedure Act, para. 566 German ZPO, Art. 360 of the Code. Italian Civil Procedure, rules that otherwise such failure condition to the agreement of the parties.

12) That in the United States, similar purposes which have been reported on the 4055 Act (consid. 5 °), were persecuted by the "Evart Act of 1891, creating the circuit courts of appeal in order to lessen the burden work of the Supreme Court of this nation, through the establishment of such intermediate bodies would know of resources to previously proposed for the former (Wright, Charles A., "The Law of Federal Courts, p. 725, ed. 4 th , West Publishing Co., St. Paul - Minn. - 1983).

13) That while the U.S. law of 1891 is the above history of 4055, in it there is a provision does not appear in Argentina. Thus, in the United States admitted the by-pass intermediate courts but from an express decision by Congress incorporated into the law of 1891 that literally stated:

"In any case previously set to be concluded in the Circuit Court of Appeals, the Supreme Court shall have jurisdiction to require, by certiorari or otherwise, that such cases are certified by the Supreme Court for review and decision with the same power and authority in the case as if it had been brought by appeal or writ of error "(" In Any Such case as is hereinbefore made final in the Circuit Court of Appeals It Shall Be Competent for the Supreme Court to require, by certiorari or Otherwise, Any Such case to Be certified to the Supreme Court for review and determination STI with the Same Power and Authority in the case as if it Had Been Carried by appeal or writ of error to the Supreme Court ").

14) That despite the ambiguity of the phrase" In any of the above cases to be concluded in the Circuit Court of Appeals ("In Any Such case as is hereinbefore made final in the Circuit Court of Appeals ") was interpreted by the Supreme Court of that country in the sense that the" bypass "was possible (148 U.S. 372, 385 (1893), 166 U.S. 506, 513 (1897).

Other terms, the U.S. Court had an explicit text that could interpret and tie his doctrine permissible "per saltum." That condition can not exist in the 4055 Act or any other passed by Congress.

15) That in the north country the theme analyzed had an interesting evolution. The call Judges'Bill, enacted on February 13, 1925, meant that Congress direct intervention of the Supreme Court ruled, sixty-five years, the institute explicit rules "- Certiorari Before Judgement in the Courts of Appeals or certiorari to bypass intermediate Those Courts - "the Supreme Court setting the groundwork, the framework and jurisdictional boundaries in the field today.

was a committee of judges of the Supreme Court, under the direction of Judge Van Devant, which prepared the draft of the Judges' Bill, in order to reduce the number of cases of compulsory jurisdiction to the Court admitted that it should solve. The judges of the Court not only prepared the draft law, but gave testimony before Congressional committees and were actively involved in seeking its passage. The United States Congress became convinced that justice and equality were guaranteed by the intervention in the proceedings, two courts, one district and one circuit, reducing the activity jurisdiction of the Court, both the appellate jurisdiction as it saw fit, establishing procedural formalities aimed at achieving the purpose and outcome.

16) That in terms of certiorari before the sentence of the courts of appeals, the Act conferred jurisdiction to the Supreme Court to review, by this way, any case pending before the Circuit Court of Appeals, whatever the state their procedures. The rule of certiorari before the sentence was reviewed, and so Rule 18 read: "A petition for certiorari to review a case pending in a federal appeals court, before sentence is pronounced by that court, may be granted only if it is shown that the case is of such imperative public importance as to justify deviation from the normal appeal and require the immediate knowledge of this Court. See 28 USC § 2101 (e), see also United States v. Bankers Trust Co., 294 U.S. 240 (1935), Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935); Rickert Rice Mills v. Fontenor, 297 U.S. 110 (1936), Carter v. Carter Coal Co., 298 U.S. 238 (1936), Ex parte Quirin, 317 U.S. 1 (1942) United States v. Mine Workers, 330 U.S. 258 (1947), Youngstown Sheet Tube Co. v. ° Sawyer, 343 U.S. 579 (1952), Wilson v. Girard, 354 U.S. 524 (1957) United States v. Nixon, 418 U. S. 683 (1974)" "A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is given in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appelate practice and to reguire inmediate settlement in this court. See 28 U. S. C. # 2101 (e); see also, United States v. Bankers Trust Co., 294 U. S. 240 (1935); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); Rickert Rice Mills v. Fontenor, 297 U. S. 110 (1936); Carter v. Carter Coal Co., 298 U. S. 238 (1936); Ex parte Quirin, 317 U. S. 1 (1942); United States v. Mine Workers, 330 U. S. 258 (1947); Youngstown Sheet ° Tube Co. v. Sawyer, 343 U.S. 579 (1952), Wilson v. Girard, 354 U.S. 524 (1957) United States v. Nixon, 418 U.S. 683 (1974). "That is, the certiorari in the Supreme Court recognized a single category of cases - those of imperative public importance - and that the authorizing rule cited, to the 1 / 1 / 90, nine famous cases. Four led to the declaration of unconstitutionality of the New Deal, two related national strikes in basic industries during the war, one for the case of Nazi saboteurs (Ex parte Quirin), the penultimate over Japan's right to prosecute an American citizen's death of a Japanese woman and the last, which led to the resignation of President Nixon. These cases, including exceptional role models seem to have been selected from the book "Jurisdiction of the Supreme Court of the United States" in Robertson and Kirkham.

17) That the final point of this evolution is in the "rules" of the U.S. Supreme Court currently existing and revised in 1990. There he planned to treat the call-back and play the text of the earlier Rule 18 without mention of the nine cases. In fact says the "Rule" 11: "A petition for certiorari to review a case pending in a federal appeals court before the sentence is handed down by the court, may be granted only if it is shown that the case is of such public importance as to justify deviation from the normal appeal and require the immediate knowledge of this Court, 28 USC 2101 "(" A petition for a writ of certiorari to review a case pending in a United States court of appeals, Before Judgement That is Given in court, Will Be Granted only upon a Showing That the case is of public Importance Such imperative as to justify deviation from an Appellate normal practice and to require immediate settlement in this court 28 USC 2101).

In short, one can say that in all that time the Court of the United States warned that it was a power that should not ordinarily be exercised (166 U.S. 1.49, 166 U.S. 506). That tried and applied the aforementioned faculty with particular rigor, highlighting their exceptional, whose use is justified only to matters of "imperative public importance" that should be resolved "immediately." So it is argued that drastically reduces the duration of a cause, to high ("by passing") to the circuit court of appeals, it is certain that allows direct access to the Supreme Court, with all constitutional and legal consequences it means and that relate to due process, the judge, the superior court in the case, among others. That even the acceleration of the procedure in cases in which time could be a crucial element to the Supreme Court brings problems of varied nature. Precipitation, increased margin of error in the decision, the real impossibility to review important issues in terms distressing, as recognized by the Court in O'Brien v. Brown "(409 U.S. I, 1972). In "New York Times v. United States" (403 U.S. 713, 1971), the judges did dissent left explicit evidence of having lacked adequate time to consider the case (conf: Lindgren, James Marshall, William P. "The Supreme Court power to grant certiorari extraordinary Before Judgement in the Courts of appeals", Ed University of Chicago - ps. 259 to 279. Wright, Charles Alan, "The Law of Federal Courts," p. 732 and Sigtes., Ed. St. Paul, Minn., West Publishing Co., 1983 -).

18) mentioned that all development has to date had not received any in our country, whether by formal laws of Congress governing the "appellate jurisdiction" in this court or by the jurisprudence of the Court. Quite the contrary, recent judicial precedents, but especially legislative, indicate that the Argentine law on the subject has gone a very different path to the American.

19) That, in fact, the Argentine legislature did not agree on such a possibility to skip court stages in the processing of cases. Rather, under consideration in 1987 a bill which allowed for a similar institution, he was not approved. And - which seems conclusive - 23,774 law not included.

20) That it will undoubtedly adversely "per saltum" the legislator of the recently enacted Law 23,774. This is because not only admitted the school despite taking as a fundamental antecedent a bill that it did, but it is unthinkable that has not taken specific account of poor data pronouncements of this Court that he had been rejected. "

21) What about those precedents, a landmark case because it was the "Competition No. 199.XXI.," Investigation of the events of 13.12.1976 in the town of Margarita Belén (Chaco) during the confrontation occurred between legal forces and elements subversive, Judgement of 01.09.1988. It was a negative race locked competition between the Federal Court of Appeals of Resistance and the Court of Appeals in Federal Criminal. In such case the court raised the Whether it could address the growing and merits.

22) That, if you will, from the point of view of the exercise of "appellate jurisdiction" edges had cited the case even more serious than this. This is so because of having resolved the merits in this case, plainly been exercised original jurisdiction in a scenario not covered by art. 101 of the Constitution. It is known that "it is not given to any person or any power, expand or extend the cases in which the Court exercises exclusive original jurisdiction respect the mandate of the Constitution" (Failure t. 32, p. 120, where "Sojo" , whose doctrine is applied to this Court on numerous occasions).

23) That, however, the precedent that has been alluding important statements were made directly applicable to the "sub lite. "Thus it was noted that one could not" ignore the ways that determine the arts. 100 and 101 of the Constitution, or the rules and exceptions prescribed by Congress for the exercise of appellate jurisdiction "(vote of doctors Knight and Fayt). It was also stated that" the need to solve the serious problems involve cases such as this "no" to justify the lack of fundamental principles of our rule of law, as is that of 'due process' "because" ... as it is forbidden to the intervention of judges, under color of inconvenience , error or injustice where public authorities exercising powers conferred on them ... Nor is given to the courts validate the acts committed in violation of the Constitution, because of the order sought by those who met ... "(Bugs t. 198, p. 78 - Rev. The law, t . 33, p. 613 -) (vote Bacqué doctor).

24) That the constitutional guarantee of "due process", in fact, highlights a crucial point for the solution of "sub lite" . The art. 18 of the Basic Law condemns someone to be "judged by special commissions or removed from the judges appointed by law before the offense was committed." This provision, without direct equivalent in the United States Constitution, reflects a peculiar reality of Argentina.

is obvious experience of this court, and those who have had links with the legal life of the country, the zeal with which litigants and judges monitor strict compliance with the rules governing the jurisdiction of the courts, where rules largely rests on confidence in the impartial work of judicial institutions.

25) That this regard, typical of Argentine law, is based on the negative historical experience of the "special commissions" in the constitutional requirement of prior law to the facts of the case "in the division of powers in national jurisdictions provincial, and in general the distrust of the possibility that we can, somehow, to choose a judge to the detriment of a party, or behind the cause of his "natural judge."

26) that the essential requirement of "appeal" contained in art. 101 of the Constitution is a sign that our Supreme Law also requires regular travel a recursive way as a normal requirement for the service of justice, at least, as this Court is concerned, where it can not be the subject vanal scales of such a path.

27) That is not free then we conclude that between the judicial power of the nation needs to function properly respect for the laws of Congress governing the procedure of resources not as a purely instrumental track accessory, but as a claim that is based on the rules adopted by the Constituent Assembly to the peaceful and orderly society living in Argentina.

28) It is clear that skipping regular procedural steps established by law is a serious issue, which does not fit the spirit of our Constitution and meritorious in comparative law is not allowed without prior legislative decision, a decision that is not has occurred in the Argentine law.

29) That, however, the Supreme Court has found cases that enable its judicial activity, regardless of original jurisdiction, without recourse, and without a conflict of competence (Failures t. 246, p. 237 - Rev. Law, t. 98, p. 506 -). He did so on the understanding that as the function that the Constitution itself directly assigned, the Court should draw the limits to the powers attributed it to recognize, organize and distribute in different areas - in the case, a national , other provincial -. The Court was thus in very special circumstances of this case, apart from a jurisdictional and a resource, support a "tertium genus" to enable their performance, because, otherwise, "would have violated the Basic Law, the it represents in itself, a deep and lasting injury. "

30) That none of these scenarios include the exceptional case. On the contrary, his own description shows that the" deep and lasting damage "would emanate from him importance has not, then altering the normal order of the institutions - to the detriment of confidence in the judiciary in general and the Supreme Court in particular - that the republican regime requires preserving the whole event. And all without benefit, ultimately, to the interests of the nation state, exposed to the apparent protection coverage only artificial.

31) For these reasons, in conjunction with the doctrine of institutional gravity developed by this Court, confirmed the orientation of the above arguments. The institutional gravity favors the defense of national interests of society as a whole, and its legal organization considered as a whole, who heads the National Constitution above partisan considerations obstacles born of that system.

If interest is much larger and enduring, for the reasons stated, ensure the normal functioning of legal institutions, thereby strengthening public confidence in them, and the solid defense of state interests - that requires a clear determination of their rights - that unlock forward to a situational difficulty of the administrative authority, the solution within the existing legislation does not in any way envisions impossible.

32) That, as such, if the issue is to avoid late and ineffective decision of the court, since the printed proceedings in this cause would be "the only effective means for the protection of federal law invoked" testitura that is susceptible to serious criticisms.

33) That, in the first place, if they wanted to avoid was an excess which resulted in an unprovoked judicial interference in progress clearly important public affairs and political-economic impact, the appeal by the defendant was not the only effective means. Indeed, the reprieve willing to fs. 84 by this Court would have been the logical corollary of appeal filed before the Chamber (Art. 15, Law 16,986), then if the simple "injunction issued by this Court fs. 84 prevented those improper purposes, the identical result of normal appeal also had. Second, because even with the formal deficiencies attributable to the filing of the plaintiff, by its means the courts have had occasion to meet in aspects related to the adequacy of the company in question to a previously established legal rate. And apparently concluded the unique facets of this process is the main unresolved problem of law, that is, the adequacy or otherwise of the new company to that definition and, more importantly, the extent of state responsibility - full or limited - for his role in it, as resolved in the future if it is part of a corporation or an irregular.

34) That as the above conclusion that this Court can not be supported by direct submission made by the Minister of Works and Services Public and consider further appeal, also made to his courtroom.

therefore rejecting direct submission. - Charles S. Fayt.

Tuesday, May 13, 2008

Best Tile For Bathroom

DuRussel Graciela B. Fernandez c. Santa Fe s / full court action brought


DuRussel Fernandez, Graciela B. c. Santa Fe s / resource full jurisdiction litigation.

Opinion of the Attorney General's Office.
A fs. 56/61 Supreme Court of Justice of the Province of Santa Fe decided to reject the appeal promoted fs contentious. 5 / 10.
against this ruling, the plaintiff filed the federal appeal was only granted as had not welcomed the charge of unconstitutionality made in respect of art. 65 of dec. provincial 10.204/58.
The challenge to the constitutional validity of the aforementioned rule that establishes, under certain conditions, revocation for instance lapsing of any management that is promoted to the executive branch and its decentralized agencies when the persons concerned are to spend 1 year without any action tending to the service processing or resolution, which was founded is withdrawn, at the discretion of the plaintiff, the rules of due process and legal defense and the principle of equality.
In my opinion the protest should not be welcomed.
is that, as stated by the Court, the constitutional guarantee of the defense is not opposed to its regulation for the benefit of the proper conduct of the causes (faults, v. 185, p. 242, t. 229, p. 761 - Rev. THE LAW, v. 16, p. 1012; Rep. LAW, t. XVI, p. 284, sum. 15 -) and that power includes the right to make reasonable distinctions between those who are not in the same condition (Fault, v. 216, p. 69 - ; Rev. LAW, v. 58, p. 536 -).
Moreover, the law in question meets undeniable principles of legal certainty, especially if one takes into account the long period of inactivity that affects the application of the forfeiture of the institute. To this can be
adding that the appellants (which does not address federal remedy demonstrate that the penalty imposed by the standard, leading to the inability to start a new administration) does not prove that article has been prevented from carrying out acts aimed at avoiding delay in processing and demonstrated their interest in it will be held on time.
On the contrary, the record indicates not a reliable means any activity on their part despite the long period of inactivity has elapsed. Hence, as applied to the case, it is not unreasonable to presume that the rule's lack of interest in managing the plaintiff had made.
it should be remembered that, according to the understanding that the Court has assigned to the guarantee of art. 18 of the Constitution, it does not safeguard the individual from the legal consequences of his own omissions or negligence (Decisions, v. 188, p. 120, t. 196, p. 19, t. 229, p. 507, t. 239, p. 51 - Rep. THE LAW, t. III, p. 774, sum. 3; Rev. LAW, v. 32, p. 76, t. 75, p. 573, t. 90 , p. 83 -).
For these reasons, I consider that the failure to confirm the fs. 56/61. December 6, 1985. - John O. Gauna.
Buenos Aires, April 24, 1986.
Considering: 1) against the decision of the Supreme Court of Santa Fe, which rejected contentious resource sponsored by the plaintiff in order to leave without effect admnistrativa resolution that had ordered the closing of the case for having a lapse of jurisdiction, the party concluded a special appeal, which was only granted in regard to of unconstitutionality of art. 65 of dec. provincial 10.204/58.
2) That the statements of the administrative record string added by here comes the plaintiff filed an administrative appeal against the decision of the Supervisory Commission of the Provincial Bank of Santa Fe, which rejected the appeal for reconsideration against the above that had ordered his dismissal as an agent of the body. After grievances expressed her view, it ran for transfer to the Directorate General of Legal Counsel, Ministry of Finance, whose opinion was favorable. He then spent the proceedings for the opinion of the prosecution of State, which passed with over a period of one year referred to in art. 65 of dec. 10.204/58, suggested declaring the lapsing of the proceedings and was the closing of the case, a criterion which was followed by the Minister referred.
3) That if it is true, as the Attorney General has told the Court that the constitutional guarantee of the defense at trial does not preclude its regulation the benefit of the proper conduct of the causes (faults, v. 185, p. 242, t. 229, p. 761) and that power includes the right to make reasonable distinctions between those who are not in the same condition (Fault, t. 216, p. 69), this court also noted that the legislative and regulatory rules relating to administrative silence to avoid such an attitude that individuals are outside of court protection in a situation of helplessness. Faced with the inertia of the body, the way of legal fiction can not be used to destroy individual rights and legitimate interests of the governed (Decisions, v. 300, p. 1292).
4) That, in light of such principles and under the circumstances, it is unreasonable for him to be a clear and express statement of the appellant to challenge an administrative act, sufficient to determine the extent and scope of your claim, and found the proceedings pending the ruling of the administrative body and that there was no due diligence by the owners - the file had been received by the State Prosecutor's Office as follows fs seal. 12 -, applies the law in question when the body does not comply with their obligation to settle and the person did not urge the decision. At the point, can not also ignored the advice required to State prosecutors was not a futile process because it is a requirement for the resolution of unfailing appeal (art. 52, part. 2 nd, dec. 10.204/58).
5) It should also be recalled that under general principles governing the matter, the applicant attends as a partner in the development of the administrative decision even when defending their individual rights, so informality prevailing rules and drive trade. Moreover, good faith, loyalty and integrity that should characterize all processes and activities of the parties to it, determine that the adjective regulatory standards for their conduct does not contain requirements that are contrary to these principles (Bugs, t. 300, p. 1292).
6) That, under such conditions, the application of art. 65 of dec. 10.204/58 by the fact the applicant had not urged the procedure by the silence of the administrative body is not consistent with the rules concerned or with the provisions of art. 66 of that legal regime established for all staff of the provincial administration "the obligation to devote maximum attention and contraction to work in their tasks ...", nor with his art. 41 which requires the departments to "specify the foot of the last performance, the time that the record remained rooted in the same" and provides that "when it exceeded the terms established in the preceding article, the reasons for the delay.
By contrast, the contested decision matters unreasonable unequal treatment of the subject of the relationship of public law and violates the guarantee of protection established in article . 18 of the Constitution.
7) That, in short, the application in the present circumstances of art. 65 of dec. 10.204/58 is unconstitutional because of its disagreement with the arts. 16 and 18 of the Constitution, as the penalty provided by this rule should be reserved for cases in which the person leaves the period of time "without any action tending to his service processing or resolution, but not in those any steps he had to be done because the administration was able to act.
Furthermore, it should be noted that subsidiary apply the provisions of the Code of which are more tailored to the case (art. 73, dec. Above), and art. 232, the latter prevents the declaration of revocation when the cars are pending judicial resolution.
Therefore, having ruled the Attorney General, appealed the sentence is revoked and declared, in the case, the unconstitutionality of art. 65 of dec. provincial 10.204/58. Costs borne by the expired (Art. 68, Code. Procedure). Return the case to the court of origin, for whom it may concern, new standard is issued under this. - Augusto C. Belluscio. - Charles S. Fayt. - Jorge A. Bacqué.

3 Days To Af, Is Cervixhard

Durañona y Vedia, Juan et al v. Augustine National State


Durañona y Vedia, Juan et al v. Augustine National State

2 ª INSTANCE. National Chamber FEDERAL ADMINISTRATIVE ROOM III. Buenos Aires, April 11, 1995. Views: Considering the nature of the case merit, quality and effectiveness of the work of professionals who spoke for the plaintiff in the cause of pure law is declared, the amount of trial and the fact that to bind the litigation had been dictated by the pronouncements in Alzada which set a doctrine which was referred the resolution of these cars, it is noted that the strict application of the fee outright for this type of process, would cause an obvious and unjustified disparity between the importance of work actually completed and compensation that under those rules would be applicable tariff.

This being so the species is justified in not attending to the percentages established by the arts. 7 and 9 of Law 21,839 (conf art. 13 of Law 24,432).

redúcense Therefore the sum of one hundred thousand pesos ($ 100,000) together 'fees for the legal management and legal representation of the plaintiff, keeping the aspect ratio set by the court a quo Mrs. fs. 653. Register, report and return. - Roberto M. Mordeglia - Guillermo Andres Muñoz. - Jorge E. Argento.

CS, Buenos Aires February 27, 1997. - Having regard to the present Durañona y Vedia, Juan et al v. Augustine National State s / know judgments.

Whereas: 1 That the Court of Appeals in Administrative Matters Federal (Room III) reduced professional fees covered in the first instance ($ 1,256,600) to address legal and representation of the plaintiff the sum of $ 100,000 for implementation of art. 13 of Law 24,432.

That article states that judges should regulate legal fees without regard to the amounts or minimum percentages established in the national or local tariff schemes, where the characteristics of the work involved the application to designate a reasonably smooth and level of these tariffs would cause a clear and unjustified disparity between the importance of working effectively fulfilled, the remuneration received. Against that decision Durañona doctors and Vedia, Silvano and Piccirilli-beneficiaries of such regulation appealed extraordinary.

2 nd That the appellants made the following offenses: A) The House violated art. 18 of the Constitution suddenly applying the art. 13 of Law 24,432, giving no opportunity for stakeholders to expose the legal and factual reasons that determined their inapplicability to the case.

B) The Chamber erred in not giving arbitrary reason to apply the cited art. 13. According to the appellant, the complexity of professional tasks they performed did not justify the application of the rule in question.

C) The lower court granted the 24,432 law no retroactive effect under that law.

D) That filing resulted in the violation of the rights acquired by the appellants under the rule of law 21,839. To establish this position, the appellants cite numerous precedents of the Court had developed the concept of entitlement.

a quo granted the extraordinary remedy. For existing federal issue, the controversial retroactive application of the reform art. 77 of the Civil cp art. 9 of Law 24,432 and have been the ruling adverse to the appellant's claims ... and in both the issues contested by the taint of arbitrariness deal actually about the intelligence of those rules ..., or save them such an intimate connection that prevents the consideration coupled ... (Pages 758/758 row.).

3 º, under the terms of resolution transcribed, it is clear that the Court's jurisdiction is limited in case a question of interpretation, understanding and exegesis of rules, while the lower court did not give the claimed arbitrary recursive own autonomy.

4 That, from this perspective, it is noted that the rule in question is actually Art. 13 of Law 24,432 and not the art. 9 material error as mentioned in the order of grant (acc. failure fs camera. 680/680 row. fs and extraordinary appeal. 706/729).

5 That if it becomes apparent that Article 13 is a common-law rule as it is complementary to the civil code (conf art. 15 of Law 24 432) - and that its constitutionality has been challenged by the appellants , it resolved that the special appeal is outside the jurisdiction of the court.

Therefore, the appeal inadmissible. With costs. Presents notified and refunded. - Julio S. Nazarene. - Charles S. Fayt. - Eduardo Moline O'Connor (dissenting). - Augusto Cesar Belluscio (dissenting). - Henry S. Petracchi. - Anthony Boggiano (their vote). - Guillermo Lopez AF (in dissenting). - Adolfo Roberto Vazquez.

VOTE MINISTER ANTONIO DOCTOR BOGGIANO. - Considering: That the special appeal is inadmissible (art. 280 of the civil and commercial procedural code of the Nation).

Therefore, the special appeal inadmissible. Presents notified and refunded. - Antonio Boggiano.

dissidents Mr. Vice President Eduardo Moline O'Connor DOCTOR DON AND DON MINISTERS Augusto Cesar Belluscio DOCTORS AND DON GUILLERMO LóPEZ AF. Whereas: 1 That the room III of the National Chamber of Appeals in Federal Administrative reduced legal fees of the plaintiff attorneys to the sum of $ 100,000-in the previous instance had been set at $ 1,256,600, with foundations in the art. 13 of Law 24,432. Against this statement the lawyers filed the special appeal of fs. 706/729 fs which was granted. 758.

2 nd That the grievances of the appellants raise federal issue for treatment at the track tried, because if it is true that the issues pertaining to the regulated fees in previous instances, such as the temporal scope to be given to a rule of law common, are foreign, in principle, the panel of art. 14 of Act 48, it is not an obstacle to discredit the ruling when the contested decision is not a rational derivation of existing law in accordance with the records of the case and this leads to an obvious impairment of the rights to fair compensation and property embodied in the arts. 14 bis and 17 of the Constitution (Bugs: 304:1050, among others).

3 ° That this court has decided several times that the Constitution does not impose a version of regulation on validity intertemporal law, as the legislator or judge, in their respective areas, may establish or rule that the new law destroy or modify a simple interest, a simple right or existing right of expectation. But also highlighted, with particular emphasis, that neither the legislator nor the judge could, under a new law or its interpretation, to snatch or altering a property right acquired under the previous legislation, as in this case the non-retroactivity principle ceases to be a standard infra to be confused with the guarantee of the inviolability of property recognized by the Supreme Law (Decisions: 178:431, 238:496 and causes J.13.XXVI Jawetz, Alberto s / appeal resolution Retirement Fund, Retirement and Pensions of the Federal Police March 24, 1994 [ ED, 158-324].

4 That, moreover, this Court has stated that for the right acquired and, therefore, is forbidden to implement the new law, it is necessary that the holder has completed, under the enforcement of the rule repeal or modify substantive conditions and formal requirements of the Act to be the holder of the right at issue, though lacking the formal declaration of a decision or administrative act (acc. Failures : 298:472, 304:871 and 314:481).

5 That in the sub lite is not disputed that the lawyers for the plaintiffs met all of its professional management in the first instance before the entry into force of the Law 24,432, so the decision a quo that on the basis of the new legal guidelines, reduced the fees that they had been regulated, meant to attribute to the standard used, which is part of the code provides civil and not a temporary term of retroactive is not compatible with the protection of the constitutional guarantee that says affected.

6 th May, in effect, the sub judice the professional work of lawyers, on behalf of 305 players in their own right were made prior to the enactment of the disputed law, so from there was born a situation specific and individual legal head of the appellants that, as such, it is unalterable and can not be deleted, or modified by subsequent legislation without detriment to property rights enshrined in art. 17 of the Constitution (acc. Bugs: 306:1799).

7 º That, in this vein, the Court also said that the law is not applicable tariff came into effect after acceptance and execution of the task, because the professional can not be deprived of the economic rights acquired under a previous legislation (Bugs: 268-561), but it would inhibit the circumstance of being pending the determination of their fees, since the legal regulation only adds a recognition, and quantification of a preexisting right to payment of professional work ( Confrn. arg. Bugs: 296:723 and 314:481).

8 th May, in such circumstances and with no grounds to accept the adjustment amount practiced in the first instance, it is to rise to the grievances of the appellant, as the scope of the camera has given 24,432 law show that mediates direct and immediate link between the decision and the constitutional guarantees that they say violated (art. 15 of Law 48).

Therefore, it is stated from the special appeal and annulling the regulation effected. Costas on the order in response to the application of the law challenged by the appellants was ordered by the court ex officio. Return the case to the Court of origin so that, through whom it may concern, proceed to issue new ruling, according to the statement. Notifíquese and refer. - Eduardo Moline O'Connor. - Augusto Cesar Belluscio. - Guillermo López AF.