III .- TAX REVENUE: Taxes / Concept.
is any obligation in cash or in kind required by the State to subject reached under the law and exercise the power of empire .-
The characteristic features of all taxes are
benefits in cash or in
Species Act is created by
is required under the coercive power of E `
Regarding the first, the benefit in money or in kind will be given by the levy payable by the subject reached the treasury, example are taxes on land to which referred Adam Smith or the former Soviet Union required a percentage of the crop is destined to cooperatives or to the same E `.
Thus, in our country during some periods I accept the cancellation of national or provincial taxes by public debt certificates or bonds (LECOP and patacones these from the technical point of view things were classified as legal and not as currency) today national taxes and / or provincial are payable in cash .-
Secondly, as can be seen from the definition outlined the creation of any tax shall be by law in the formal sense. The apogtema says: "Nullum tributum sine lege" This principle of law that governs today about taxes, data about the S. XVI English revolution and the ideas that shaped the contractarian E `modern
.- Finally the enforceability of the tax by means of State coercion, is given by the unilateral nature of the legal relationship of public law. So Giuliani Fonrouge defines taxes as "a mandatory provision commonly money required by the State under its power to rule and gives rise to legal relations of public law"
The subject reached unlike bilateral relations legal business fails to express its will, it is supplemented by the whole society in the passage of a law that in its absence operating state mechanisms to ensure your satisfaction .-
Other definitions:
model for Latin American tax code states: Taxes are cash benefits to the State, in exercise of the power of empire need, in order to obtain resources to achieve its objectives .-
English General Tax Law 58/2003 stipulates in Article 2 that the charges are "public revenues required by a government following the completion of the course in fact to the law links the duty to contribute to the primary purpose of income needed to sustain public expenditure .-
Jarach Finally Dino understands that tax revenues are those that the state obtains through the exercise of its power to rule or the laws that created the obligation of individuals - individuals / entities - in the form and amount that such laws provide
Different species .- of taxes:
The classification of taxes according to the classical theory may be limited or tripartite: Taxes, fees and special contributions, the latter are divided into contributions for improvements and contributions
parafiscal .- However, other taxes that to date have lost force could incorporate other classification, as was the forced savings or forced loan, with characteristic features of taxes, the enforceability of State for through its power of empire among others, however as stated above, we will develop the tripartite theory of classification of taxes .-
1 .- Taxes: Different Definitions
:
call it tax tax that is established on the subject because of the political assessment of a manifestation of objective wealth, regardless of personal considerations subject to the wealth owned or which is transferred between or subjective taking into account the personal circumstances taxpayers, such as marital status, family responsibilities, total income and wealth .- (Dino Jarach Public Finance and Tax Law Second Edition p.255 Abeledo Perrot Ed.) .-
any provision is required in cash or in kind, which state that in exercising its power to rule, required under law, without requiring an compensation for taxpayer directly related to that service. This means that regardless of the payment is required for all other government activities (Catalina García Vizcaíno Tax Law Treaty IT p. 71 Ed Lexis Nexis 3rd Edition) .-
The Italian Constitution in its Article 53 tax reserve the term those taxes in fiscal functions, namely to seek resources for the state or other public .-
Villegas in the same sense defines all taxes imposed as required by the State to those who are in situations deemed by law as taxable events, and these are unrelated to any state action on the bound (Villegas H. Public Finance Course P. 52 the 5th Ed Depalma edition) .- Finally the Master
Fonrouge Giuliani defines taxation as the benefits in cash or in kind required by the state under the power of the empire who are in situations that are considered by law as taxable events (Giuliani Fonrouge Law Ed Financial Depalma Edition 1993 P. 319) .-
Our Supreme Court's Office has said that the tax is an obligation imposed unilaterally by the State under its power to rule 218:596 and 223:223 .- Faults
Conclusion:
From these definitions we can conclude that the tax is then, any payment in money or in kind, required by the State due to their possession of empire who are in scenarios considered by the law under an objective or subjective manifestation of wealth and was intended to provide funds to the State or another public body to resolve public services
indivisible .- 2 .- Rates:
Different Definitions
The rate is required to provide any cash or in kind to the E 'in exercising its power to rule required under a law of a State service or activity that actually is particularized or individualized the obligor
Following then the different definitions of charges so far explained, differs from the same utility address divisible by
.- Our National Supreme Court has said: "... the collection of a fee must correspond , inter alia, to provide individualized service relates to individual but not least (well or act) of the taxpayer. " failures. Special Massalín SA c / Tierra del Fuego Province s request for declaratory of unconstitutionality. 21/03/2006T. 329, P. 792) in the same direction: National Government c / Arenera The SRL Libertador 1991-B-1879 - National State v. XXIII E.106 Sevel Argentina 10/10/1996 - Horacio Levy and Another v National State 15/07/1997 L 187 XXV .-
The same approach has held the Lord of the Treasury Solicitor's Office saying: "The rates in all its variations, are due in the provision by the state of a service (consisting primarily of control events, registration, custody, etc)-divisible and inherent in its sovereignty, from which the recipient will be a concrete way the subject reached by the event and the amount of which is intended defray the costs of the service. " (Dict. N º 84/02, April 18, 2002. Expte. No. 131.75/01. Ministry of Justice and Human Rights. (Opinions 241:92))
In same effect was issued by the Supreme Court of our Province of Buenos Aires in judgments Nazario Parra v. Municipality of General Pueyrredón "(taxes XXIX P 1078) and" Sawmills Monroe SRL "(JA 1996 II 528) among others .-
2.1 free rate for the service
As noted in the preceding paragraphs, the event for the obligation to tax, the effective delivery of public service for divisible for the obligor to pay part .- However
of the doctrine means that the benefits to which we referred to may be provided in a potential form, ie E 'must have the organization service in some way and able to be facilitated, but not necessarily must lend .-
This position is adopted by Valdez Coast, on the Draft Tax Code for Latin America and Glogauer and others.
In the area of \u200b\u200bCommunity law common to observe the application of this theory by adding the definitions of rates the word "potential" for example "The rate is required to provide any cash or in kind to the E 'in exercising its power to rule required under a law of a State service or activity that is particularized or individualized actually or potentially payable by "
.- 2.2 .- The rate, the difference between the tax :
concatenated with the problem just defined on the potential rate, appears at first glance the differences with the tribute we call TAX as the rate unlike other taxes differs from the effective delivery and individualized for the contributor to a public service
divisible .- However, proponents of the potential rate, confuse it with the tax. Since its main function (the tax) is to solve the public services indivisible distinguishing feature between the two species
charges .- 2.3 .- The rate, the difference between the price:
The price is the value or justipreciación one thing, good or service, particularly in legal or economic relationship no tax. This means that the value of service in the case of charges is determined by the parties or if the market. But is the product of the will of the legislature. A price difference is the product of the will of the parties .- 2.4 .-
rate, the difference between Special Contributions:
Unlike the special contributions, the rate may not benefit the subject reached. (The brevity of this paragraph responds to the development of the next title for the special contributions) .- 3.-
Special Contributions:
The special tax is required to provide any cash or in kind, the state in exercising its power to rule required under a law, individual or group benefits derived from public works or expenses, or special state activities.
Thus, in the classification of this kind of charges we find the contributions and the contributions Parafiscal Improvements. The first ones are characterized by the existence of a benefit of a public work being the latter are collected by public bodies to self-finance their operation .-
The closest example in respect of the first is the realization of asphalt and villages, with houses adjoining the benefit in increasing its value by the improvements made in public works for the second one example even closer will be paying tuition to law school professional
.- 3.1 .- Main problems of the contributions of improvements.
One of the main vectors in the enactment of a rule is better contribute reasonable ratio between the contribution and benefit to the subject reached for this purpose be defined: 1.-What properties are reached or benefited from the work setting a public limited geographical reach benefit suspected .- 2 .- That part of the cost of the project should be financed by beneficiaries .- 3.-finally as that part of the cost distributed among the subjects achieved (eg distance for each property on of the work) .- 3.2-Contributions
parafiscal legality of the levy:
The State in its power to delegate the exercise of police power for public authorities, for over a formal standard, enables these to exert on their members the mentioned order, as well as set our in the ruling CSJN Milton Alejandro Ferrari 308:987 .-
is so called quasi-fiscal for not specifically addressing the State itself but from a public entity extra
State .-
The following paragraphs briefly transcribed to make our contribution to the field for tolls. Guiding principles of the Seventh National Conference of Lawyers. Legal nature.
IV.) NATURE OF THE LEGAL LIABILITY OF TOLL
Despite the magnitude of daily legal ties, the toll system generated through the many corridors of the massive use for daily travel much of the population throughout the country, there was a corresponding development of our doctrine on fundamental aspects of the problems of this institution.
There are two well-defined opposing positions that attempt to explain the legal origin of the toll. A civilian position, which considers the toll as a price the user pays the concessionaire for the use of the corridor, where it derives its character contractual, and other vision that affirms the essence of the school tax in question, inferring its contractual nature, subdivided the latter, between those who say it is a fee and those who advocate that the issue is not merely theoretical. Qualification is not indifferent to the legal nature of the bond dealer - user, such as contractual or not.
In the former case the limitation period for claims arising would be 10 years and the second hypothesis, is applicable in the art. 4037 of C. Civil, or two years. The extent of responsibility of the dealer if you apply the rules relating to tortious (arts. 1109 and 1113 of C. Civil) is clearly more extensive than what might result from the categorization of the relationship as contractual because in these cases, only be answered by the benefits promised in the contract that are fulfilled by the grantee vial. Besides the above, differences emerge concerning the extent of liability in order for the immediate, mediate and remote-compliance, as they characterize the relationship as contract or tort.
a) Thesis
contractarian theory has as background the decision of the Board F, issued in May 1992 with Dr. Earl vote, in the case "Abba, Miguel A. and other c. Huarte SA and other s. summary ", in which the litigation arises from an accident suffered by a user because of an existing oil slick on the highway AU-6. The sentencing said: "... the responsibility that stems from the failure to maintain proper form of conservation in this way against the motorist, is contractual, not tort, because the actor agreed to the highway by paying the grantee of a sum by way of toll, as consideration for making possible the movement in terms of administrative contract ...".
Therefore, the thesis considers the private nature between dealer and user is given a binding contractual commitment type. For example Vázquez Franco for whom the private law nature of the relationship of the dealer to the user support in the idea of \u200b\u200ba civil contract, submitted by both common law and the jurisdiction of ordinary courts. This well, according to the author above, not conceived POSSIBILITY legal and administrative relations between individuals. Contractarian thesis, defended by prestigious civilistas as is the case of Jorge Bustamante Alsina, Raúl Eduardo Scola, Juan Carlos Boragine and Jorge A. Meza, won.
majority support in the VII Conference Bonaerenses Civil Law, Commercial and held Pocesal in September 1996. Discussed in one of its committees, the topic "Responsibility of the companies providing public services." At that time approved among others the following item: "When the service is provided by logging companies, the contractual relationship is governed by constitutional principles and norms of private law."
should be noted that the contractual relationship is between direct users and the concessionaire as third parties are outside of this link. Regarding non-contractual liability would be. For example if as a result of the accident, the user dies and demand their own right heirs. As a variant of contractarian theory, we find the view held by Eduardo Scola, who proclaims the dealer's responsibility towards the user while limiting debt obligations in the contract award, as it is a triangular relationship of the provision itself to third parties in which the user is the beneficiary of the link made between the promisee (the state) and the promisor (dealer) (Scolaro, Eduardo, The legal nature of the toll concessionaire's responsibility for damage sustained by the user). A.1
Dealer comprehensive contractual liability based on breach of an obligation
security. The position taken by this current distinction between the legal nature of the relationship between government and locked the dealership, and the nature of the contract concluded between it and the user.
The first-granting work-public law would be governed by the laws applicable to the case, the concession contract and the operating rules. In turn, the contractual relationship between the concessionaire and the user would be "private law". Among them enter into a tolling agreement (which is often identified now with the location of work, now with the location of services, now-mostly-with an atypical contract).
As part of this business, the toll would be the price users would pay the dealer, as compensation for the service undertaken by it.
This private law contract for the concessionaire would generate two outstanding obligations, namely: a) a principal obligation or typical, which would enable the user to transit through the corridor, and b) a safety requirement, for damages it could suffer during the vehicular traffic through the concession route. The violation of any of these duties negotiable, would be born, either, a debt of contractual liability. B.
Thesis
contractual position advocated among others by Manuel Sarmiento Guemes, Patricia Pilar Venegas, María Fabiana Compiani, Gonzalo López del Carril, and John Poclava Lafuente. A commonly cited case law at the case "Carnelli, John C. / New Pathways SA" G failed by the Board of the National Civil as of June 7, 1995. Also the Chamber III of the House Civil and Commercial Appeal of the city of Rosario in Judgement No. 4 of February 10, 1997 considered the issue has contractual nature in a case that had to settle on a point of competition. In the preamble to the decision reads: "that the Appellate Court states that the issue is purely contractual in nature, based the right of the user to find the road in conditions of absolute normality and which must be protected and ensuring traffic safety. That the Appellate Court, to sustain such a thesis, must specify time and describe the legal source of the obligations of the action, and the creditor would be the plaintiff, by train to determine clearly - especially with the view taken by the Supreme Court Justice of the Nation "National State c / Arenera El Libertador (Bugs: 314:595) - the existence of the contract mentioned.
Indeed, not all necessarily have the right obligation or contract basis as mentioned issue, the appellate court should have clarified the circumstances. " Based on these arguments, the chamber felt that it should continue to understand the cause the court with jurisdiction in tort.
This is the theory that respond most administratives, deferring the same whether it is a tax or a special contribution. Currently the doctrine is to classify taxes into three categories: a.
Taxes: "It is a cash benefit obtained from an authoritarian individuals, either permanently, without compensation and to cover public burdens"
b. Taxes: "It is a tribute whose duty is done generador la prestación efectiva o potencial de un servicio público inherente al Estado individualizado en el contribuyente. Su producto no debe tener un destino ajeno al servicio que constituye el presupuesto de la obligación” .
c. Contribuciones: dada la afectación especial de los fondos recaudados en concepto de peaje, destinados a solventar la construcción y mantenimiento de la obra pública. Así, Villegas manifiesta que “conforme lo demuestra la experiencia actual, los fondos recaudados mediante el peaje se utilizan específicamente para financiar la construcción y conservación de los medios de comunicación vial y, en general, para el mejoramiento de este tipo de infraestructura, está por demás singled out a case for such public works users pay the special contribution called 'toll'. "
IV. 1) POSITION TAKEN BY THE SUPREME COURT
our highest court has established its position in the ruling "National v. State ARENA El Libertador
SRL s. collection of weights ", outlining" When the role of government to meet the construction, maintenance or improvement of public works, all evidence seems appropriate, in light of constitutional requirements, that individuals are required to pay certain among those that somehow relate to the work, is using it, benefiting in any way because of their existence and operation, even potentially, as the functions of government are determined by the way the National Constitution, which is sufficient to fulfill that need, without the acquiescence of individuals and relationships necessary tethered synallagmatic in the manner of the contracts. "Ultimately, the Court in this statement is not defined in precise meaning, displaying a kind of oscillating or ambivalent consideration that since the initial claim to consider" In fact the toll as substantially similar to price paid for a service, "concludes the statement above relativism with the final shot:" What should not mislead us consider from a purely contractual point of view. " As an apology for what we consider the vagueness of the Court in this regard, it should be noted that the High Court, in rendering, it is referring to another issue, the constitutionality of the toll, and defines admit it, calling it one of the contributions referred to art. 4 º with the difference earmarked for a specific and delegate to a particular perception: the dealer, in exchange for the obligations he takes to the State in the contract which gives the farm road. Put another way, the subject of the summary of the extracted fault, is tangential will deal with this issue within a discourse that aims not to define the legal nature of the relationship, but to justify the constitutionality of the allocation of the State to collect tolls from users of the road, in certain circumstances
The characteristic features of all taxes are
benefits in cash or in
Species Act is created by
is required under the coercive power of E `
Regarding the first, the benefit in money or in kind will be given by the levy payable by the subject reached the treasury, example are taxes on land to which referred Adam Smith or the former Soviet Union required a percentage of the crop is destined to cooperatives or to the same E `.
Thus, in our country during some periods I accept the cancellation of national or provincial taxes by public debt certificates or bonds (LECOP and patacones these from the technical point of view things were classified as legal and not as currency) today national taxes and / or provincial are payable in cash .-
Secondly, as can be seen from the definition outlined the creation of any tax shall be by law in the formal sense. The apogtema says: "Nullum tributum sine lege" This principle of law that governs today about taxes, data about the S. XVI English revolution and the ideas that shaped the contractarian E `modern
.- Finally the enforceability of the tax by means of State coercion, is given by the unilateral nature of the legal relationship of public law. So Giuliani Fonrouge defines taxes as "a mandatory provision commonly money required by the State under its power to rule and gives rise to legal relations of public law"
The subject reached unlike bilateral relations legal business fails to express its will, it is supplemented by the whole society in the passage of a law that in its absence operating state mechanisms to ensure your satisfaction .-
Other definitions:
model for Latin American tax code states: Taxes are cash benefits to the State, in exercise of the power of empire need, in order to obtain resources to achieve its objectives .-
English General Tax Law 58/2003 stipulates in Article 2 that the charges are "public revenues required by a government following the completion of the course in fact to the law links the duty to contribute to the primary purpose of income needed to sustain public expenditure .-
Jarach Finally Dino understands that tax revenues are those that the state obtains through the exercise of its power to rule or the laws that created the obligation of individuals - individuals / entities - in the form and amount that such laws provide
Different species .- of taxes:
The classification of taxes according to the classical theory may be limited or tripartite: Taxes, fees and special contributions, the latter are divided into contributions for improvements and contributions
parafiscal .- However, other taxes that to date have lost force could incorporate other classification, as was the forced savings or forced loan, with characteristic features of taxes, the enforceability of State for through its power of empire among others, however as stated above, we will develop the tripartite theory of classification of taxes .-
1 .- Taxes: Different Definitions
:
call it tax tax that is established on the subject because of the political assessment of a manifestation of objective wealth, regardless of personal considerations subject to the wealth owned or which is transferred between or subjective taking into account the personal circumstances taxpayers, such as marital status, family responsibilities, total income and wealth .- (Dino Jarach Public Finance and Tax Law Second Edition p.255 Abeledo Perrot Ed.) .-
any provision is required in cash or in kind, which state that in exercising its power to rule, required under law, without requiring an compensation for taxpayer directly related to that service. This means that regardless of the payment is required for all other government activities (Catalina García Vizcaíno Tax Law Treaty IT p. 71 Ed Lexis Nexis 3rd Edition) .-
The Italian Constitution in its Article 53 tax reserve the term those taxes in fiscal functions, namely to seek resources for the state or other public .-
Villegas in the same sense defines all taxes imposed as required by the State to those who are in situations deemed by law as taxable events, and these are unrelated to any state action on the bound (Villegas H. Public Finance Course P. 52 the 5th Ed Depalma edition) .- Finally the Master
Fonrouge Giuliani defines taxation as the benefits in cash or in kind required by the state under the power of the empire who are in situations that are considered by law as taxable events (Giuliani Fonrouge Law Ed Financial Depalma Edition 1993 P. 319) .-
Our Supreme Court's Office has said that the tax is an obligation imposed unilaterally by the State under its power to rule 218:596 and 223:223 .- Faults
Conclusion:
From these definitions we can conclude that the tax is then, any payment in money or in kind, required by the State due to their possession of empire who are in scenarios considered by the law under an objective or subjective manifestation of wealth and was intended to provide funds to the State or another public body to resolve public services
indivisible .- 2 .- Rates:
Different Definitions
The rate is required to provide any cash or in kind to the E 'in exercising its power to rule required under a law of a State service or activity that actually is particularized or individualized the obligor
Following then the different definitions of charges so far explained, differs from the same utility address divisible by
.- Our National Supreme Court has said: "... the collection of a fee must correspond , inter alia, to provide individualized service relates to individual but not least (well or act) of the taxpayer. " failures. Special Massalín SA c / Tierra del Fuego Province s request for declaratory of unconstitutionality. 21/03/2006T. 329, P. 792) in the same direction: National Government c / Arenera The SRL Libertador 1991-B-1879 - National State v. XXIII E.106 Sevel Argentina 10/10/1996 - Horacio Levy and Another v National State 15/07/1997 L 187 XXV .-
The same approach has held the Lord of the Treasury Solicitor's Office saying: "The rates in all its variations, are due in the provision by the state of a service (consisting primarily of control events, registration, custody, etc)-divisible and inherent in its sovereignty, from which the recipient will be a concrete way the subject reached by the event and the amount of which is intended defray the costs of the service. " (Dict. N º 84/02, April 18, 2002. Expte. No. 131.75/01. Ministry of Justice and Human Rights. (Opinions 241:92))
In same effect was issued by the Supreme Court of our Province of Buenos Aires in judgments Nazario Parra v. Municipality of General Pueyrredón "(taxes XXIX P 1078) and" Sawmills Monroe SRL "(JA 1996 II 528) among others .-
2.1 free rate for the service
As noted in the preceding paragraphs, the event for the obligation to tax, the effective delivery of public service for divisible for the obligor to pay part .- However
of the doctrine means that the benefits to which we referred to may be provided in a potential form, ie E 'must have the organization service in some way and able to be facilitated, but not necessarily must lend .-
This position is adopted by Valdez Coast, on the Draft Tax Code for Latin America and Glogauer and others.
In the area of \u200b\u200bCommunity law common to observe the application of this theory by adding the definitions of rates the word "potential" for example "The rate is required to provide any cash or in kind to the E 'in exercising its power to rule required under a law of a State service or activity that is particularized or individualized actually or potentially payable by "
.- 2.2 .- The rate, the difference between the tax :
concatenated with the problem just defined on the potential rate, appears at first glance the differences with the tribute we call TAX as the rate unlike other taxes differs from the effective delivery and individualized for the contributor to a public service
divisible .- However, proponents of the potential rate, confuse it with the tax. Since its main function (the tax) is to solve the public services indivisible distinguishing feature between the two species
charges .- 2.3 .- The rate, the difference between the price:
The price is the value or justipreciación one thing, good or service, particularly in legal or economic relationship no tax. This means that the value of service in the case of charges is determined by the parties or if the market. But is the product of the will of the legislature. A price difference is the product of the will of the parties .- 2.4 .-
rate, the difference between Special Contributions:
Unlike the special contributions, the rate may not benefit the subject reached. (The brevity of this paragraph responds to the development of the next title for the special contributions) .- 3.-
Special Contributions:
The special tax is required to provide any cash or in kind, the state in exercising its power to rule required under a law, individual or group benefits derived from public works or expenses, or special state activities.
Thus, in the classification of this kind of charges we find the contributions and the contributions Parafiscal Improvements. The first ones are characterized by the existence of a benefit of a public work being the latter are collected by public bodies to self-finance their operation .-
The closest example in respect of the first is the realization of asphalt and villages, with houses adjoining the benefit in increasing its value by the improvements made in public works for the second one example even closer will be paying tuition to law school professional
.- 3.1 .- Main problems of the contributions of improvements.
One of the main vectors in the enactment of a rule is better contribute reasonable ratio between the contribution and benefit to the subject reached for this purpose be defined: 1.-What properties are reached or benefited from the work setting a public limited geographical reach benefit suspected .- 2 .- That part of the cost of the project should be financed by beneficiaries .- 3.-finally as that part of the cost distributed among the subjects achieved (eg distance for each property on of the work) .- 3.2-Contributions
parafiscal legality of the levy:
The State in its power to delegate the exercise of police power for public authorities, for over a formal standard, enables these to exert on their members the mentioned order, as well as set our in the ruling CSJN Milton Alejandro Ferrari 308:987 .-
is so called quasi-fiscal for not specifically addressing the State itself but from a public entity extra
State .-
The following paragraphs briefly transcribed to make our contribution to the field for tolls. Guiding principles of the Seventh National Conference of Lawyers. Legal nature.
IV.) NATURE OF THE LEGAL LIABILITY OF TOLL
Despite the magnitude of daily legal ties, the toll system generated through the many corridors of the massive use for daily travel much of the population throughout the country, there was a corresponding development of our doctrine on fundamental aspects of the problems of this institution.
There are two well-defined opposing positions that attempt to explain the legal origin of the toll. A civilian position, which considers the toll as a price the user pays the concessionaire for the use of the corridor, where it derives its character contractual, and other vision that affirms the essence of the school tax in question, inferring its contractual nature, subdivided the latter, between those who say it is a fee and those who advocate that the issue is not merely theoretical. Qualification is not indifferent to the legal nature of the bond dealer - user, such as contractual or not.
In the former case the limitation period for claims arising would be 10 years and the second hypothesis, is applicable in the art. 4037 of C. Civil, or two years. The extent of responsibility of the dealer if you apply the rules relating to tortious (arts. 1109 and 1113 of C. Civil) is clearly more extensive than what might result from the categorization of the relationship as contractual because in these cases, only be answered by the benefits promised in the contract that are fulfilled by the grantee vial. Besides the above, differences emerge concerning the extent of liability in order for the immediate, mediate and remote-compliance, as they characterize the relationship as contract or tort.
a) Thesis
contractarian theory has as background the decision of the Board F, issued in May 1992 with Dr. Earl vote, in the case "Abba, Miguel A. and other c. Huarte SA and other s. summary ", in which the litigation arises from an accident suffered by a user because of an existing oil slick on the highway AU-6. The sentencing said: "... the responsibility that stems from the failure to maintain proper form of conservation in this way against the motorist, is contractual, not tort, because the actor agreed to the highway by paying the grantee of a sum by way of toll, as consideration for making possible the movement in terms of administrative contract ...".
Therefore, the thesis considers the private nature between dealer and user is given a binding contractual commitment type. For example Vázquez Franco for whom the private law nature of the relationship of the dealer to the user support in the idea of \u200b\u200ba civil contract, submitted by both common law and the jurisdiction of ordinary courts. This well, according to the author above, not conceived POSSIBILITY legal and administrative relations between individuals. Contractarian thesis, defended by prestigious civilistas as is the case of Jorge Bustamante Alsina, Raúl Eduardo Scola, Juan Carlos Boragine and Jorge A. Meza, won.
majority support in the VII Conference Bonaerenses Civil Law, Commercial and held Pocesal in September 1996. Discussed in one of its committees, the topic "Responsibility of the companies providing public services." At that time approved among others the following item: "When the service is provided by logging companies, the contractual relationship is governed by constitutional principles and norms of private law."
should be noted that the contractual relationship is between direct users and the concessionaire as third parties are outside of this link. Regarding non-contractual liability would be. For example if as a result of the accident, the user dies and demand their own right heirs. As a variant of contractarian theory, we find the view held by Eduardo Scola, who proclaims the dealer's responsibility towards the user while limiting debt obligations in the contract award, as it is a triangular relationship of the provision itself to third parties in which the user is the beneficiary of the link made between the promisee (the state) and the promisor (dealer) (Scolaro, Eduardo, The legal nature of the toll concessionaire's responsibility for damage sustained by the user). A.1
Dealer comprehensive contractual liability based on breach of an obligation
security. The position taken by this current distinction between the legal nature of the relationship between government and locked the dealership, and the nature of the contract concluded between it and the user.
The first-granting work-public law would be governed by the laws applicable to the case, the concession contract and the operating rules. In turn, the contractual relationship between the concessionaire and the user would be "private law". Among them enter into a tolling agreement (which is often identified now with the location of work, now with the location of services, now-mostly-with an atypical contract).
As part of this business, the toll would be the price users would pay the dealer, as compensation for the service undertaken by it.
This private law contract for the concessionaire would generate two outstanding obligations, namely: a) a principal obligation or typical, which would enable the user to transit through the corridor, and b) a safety requirement, for damages it could suffer during the vehicular traffic through the concession route. The violation of any of these duties negotiable, would be born, either, a debt of contractual liability. B.
Thesis
contractual position advocated among others by Manuel Sarmiento Guemes, Patricia Pilar Venegas, María Fabiana Compiani, Gonzalo López del Carril, and John Poclava Lafuente. A commonly cited case law at the case "Carnelli, John C. / New Pathways SA" G failed by the Board of the National Civil as of June 7, 1995. Also the Chamber III of the House Civil and Commercial Appeal of the city of Rosario in Judgement No. 4 of February 10, 1997 considered the issue has contractual nature in a case that had to settle on a point of competition. In the preamble to the decision reads: "that the Appellate Court states that the issue is purely contractual in nature, based the right of the user to find the road in conditions of absolute normality and which must be protected and ensuring traffic safety. That the Appellate Court, to sustain such a thesis, must specify time and describe the legal source of the obligations of the action, and the creditor would be the plaintiff, by train to determine clearly - especially with the view taken by the Supreme Court Justice of the Nation "National State c / Arenera El Libertador (Bugs: 314:595) - the existence of the contract mentioned.
Indeed, not all necessarily have the right obligation or contract basis as mentioned issue, the appellate court should have clarified the circumstances. " Based on these arguments, the chamber felt that it should continue to understand the cause the court with jurisdiction in tort.
This is the theory that respond most administratives, deferring the same whether it is a tax or a special contribution. Currently the doctrine is to classify taxes into three categories: a.
Taxes: "It is a cash benefit obtained from an authoritarian individuals, either permanently, without compensation and to cover public burdens"
b. Taxes: "It is a tribute whose duty is done generador la prestación efectiva o potencial de un servicio público inherente al Estado individualizado en el contribuyente. Su producto no debe tener un destino ajeno al servicio que constituye el presupuesto de la obligación” .
c. Contribuciones: dada la afectación especial de los fondos recaudados en concepto de peaje, destinados a solventar la construcción y mantenimiento de la obra pública. Así, Villegas manifiesta que “conforme lo demuestra la experiencia actual, los fondos recaudados mediante el peaje se utilizan específicamente para financiar la construcción y conservación de los medios de comunicación vial y, en general, para el mejoramiento de este tipo de infraestructura, está por demás singled out a case for such public works users pay the special contribution called 'toll'. "
IV. 1) POSITION TAKEN BY THE SUPREME COURT
our highest court has established its position in the ruling "National v. State ARENA El Libertador
SRL s. collection of weights ", outlining" When the role of government to meet the construction, maintenance or improvement of public works, all evidence seems appropriate, in light of constitutional requirements, that individuals are required to pay certain among those that somehow relate to the work, is using it, benefiting in any way because of their existence and operation, even potentially, as the functions of government are determined by the way the National Constitution, which is sufficient to fulfill that need, without the acquiescence of individuals and relationships necessary tethered synallagmatic in the manner of the contracts. "Ultimately, the Court in this statement is not defined in precise meaning, displaying a kind of oscillating or ambivalent consideration that since the initial claim to consider" In fact the toll as substantially similar to price paid for a service, "concludes the statement above relativism with the final shot:" What should not mislead us consider from a purely contractual point of view. " As an apology for what we consider the vagueness of the Court in this regard, it should be noted that the High Court, in rendering, it is referring to another issue, the constitutionality of the toll, and defines admit it, calling it one of the contributions referred to art. 4 º with the difference earmarked for a specific and delegate to a particular perception: the dealer, in exchange for the obligations he takes to the State in the contract which gives the farm road. Put another way, the subject of the summary of the extracted fault, is tangential will deal with this issue within a discourse that aims not to define the legal nature of the relationship, but to justify the constitutionality of the allocation of the State to collect tolls from users of the road, in certain circumstances
