El principio de realidad sobre las formalidades en el sector público según la jurisprudencia del consejo de estado años 2016 - 2021

Abstract

The purpose of this paper is to highlight the existing problems regarding the inappropriate use of the contract for the provision of services CPS, by public entities of the Colombian State, in the first place, comparing the way public servants are linked to the entities of the Colombian State, secondly, understanding the application of the (PPRF) and its influence within the public administration, as well as the problems generated from this form of linkage and finally the description of the solutions generated by the jurisprudence of the Council of State through the most recent unification sentences between the years 2016 to 2021, which provide criteria to the judges when validating the evidence of the file and typifying the actual contract. The present investigation was developed through the qualitative methodology that allowed the collection of data under a legal approach when confronting the CPS vs. the reality contract regarding the regulations of administrative labor law. At the same time, it was guided under the deductive approach where the conceptualization, the analysis of doctrine, as well as the sentences referring to the subject were studied until reaching the unification sentences of the Council of State CE-SUJ2-005-16 and SUJ-025 -CE-S2-2021, in which a series of rules to be used in those contexts was evidenced as the main finding. where the (PPRF) is reflected, which in turn delimits aspects of the demand for labor contracts in terms of expiration of the action, prescription of the right to claim, imprescriptibility, term of continuity, among others. With which it is concluded that the Colombian State does not solve the problem in depth because it is limited to generating rules, but a regulation of the CPS is not generated, which allows the reduction of labor nonconformity of contractors and a decrease of this figure from public entities.