Comparación jurídica del régimen de inhabilidades e incompatibilidades: el caso de Francia, España y Colombia

Abstract

"The disability regime in Colombia operates as a normative constitutional and legal order that implies the incapacity, ineptitude or circumstances that preclude the exercise of functions has as its primary objective to achieve the moralization, suitability, probity and impartiality of the public function. For the Colombian case, this regime has been used as a mechanism to protect the public interest, not so much in the repression of the crime committed. In other words, the fact that the disability is based on the sanction does not blur the purpose of it, which is to introduce a preventive rule, prohibitive content, which prevents the charges of handling the public thing remain in hands of individuals whose moral or professional credibility is in question. However, there is the possibility that this type of disqualifications and incompatibilities ruled in the Colombian legal system is not only a mechanism for protecting the public interest against contracting with natural persons, but also for legal entities that have their constitution as a company relationship or some type of employment relationship, extending the effects of the disability and incompatibility applied. The regime of inabilities and incompatibilities inserted in the Colombian legal architecture is complex, and it maintains serious criticisms for the perception of insufficiency that is derived from the cases of corruption and inapplicability thereof; although the causes are diverse, all point to the fact that the solution adopted by the Colombian State to guarantee the protection of the public function falls short of the social dynamics under which it operates; temporary and permanent limitations whose purpose has no vocation to prosper, generate wide uncertainty about how the issue should be addressed, so that on the one hand the general interest is guaranteed but without falling into punitive populisms that are a breach for social reintegration and end up affecting the social mobility of Colombians. The regime to analyze is legally necessary but the way it has been built deserves an exhaustive analysis that allows to reorient the vision and scope of this."