Estado social de derecho: utopía bajo el principio de sostenibilidad fiscal. Una mirada al régimen de colocadores independientes de apuestas permanentes

Abstract

This project have as an object identify and analyze the impact on the fundamental right to social security of those who work as independent permanent bet placers on the occasion of the issuance of Decree Law 2106 of 2019, in order to put in place the utopia in which it becomes the Social State of Law when examining these normative precepts under the principle of fiscal sustainability. What has been stated above it is going to be analyzed under a historical, analytical and reflexive account of the context and work carried out by this population, whom in their daily lives lack effective protection of their fundamental rights, specifically the one referring to social security. This scenario turns out to be the starting point of the present investigation where it will start with a historical study of this activity and its development to the present; the complementary social service of Periodic Economic Benefits –BEPS, its requirements and operation; the correlation between the activity of independent collaborators and the BEPS program; the challenges of applying the principle of fiscal sustainability in the development of their fundamental rights and the utopia that turns this situation into the Social State of Law. For this reason, a structural examination will be carried out on the monopoly regime of bets, the figure of permanent bet in Colombia and its development in the activity of independent collaborators, the fundamental right to social security in pension and health of the population in question and accordingly the precepts described in article 55 of Decree Law 2106 of November 22, 2019 as well as the manner by which, the application of the principle of fiscal sustainability in its regulatory provisions directly affects social protection of independent collaborators of permanent bets. Additionally, it will be exposed the lack of regulation, negligence and ineffectiveness of the State that have generated a violation of the principle of progressiveness of fundamental social rights applicable to people who carry out the activity of independent placement of permanent bets, even in previous periods, will be exposed. to the inclusion of the principle of constitutional fiscal sustainability. Thus, the present document will show the challenges and difficulties of the Colombian legal system in the protection of the fundamental rights to social security in pension and health of the independent permanent bettors in addition to highlight the negative consequences generated by the principle of fiscal sustainability in the consolidation and effectiveness of the same under the precepts of the Social State of Law, which, in the words of Dr. Carlos Gaviria Díaz (2004) is consolidated as that State where all social guarantees are fully satisfied and the inequality and inequity gaps are becoming smaller (Quoted by Pérez, 2013 p. 4). Therefore, the precarious guarantees existing in this population will be contrasted against the ideological concept of the Social State of Law, turning the mentioned on into an utopia as a result of the economic and social policies of the State, where, beyond satisfying population needs according to the essential objectives of the State, contribute to the deterioration of the same, violating the principle of progressivity, increasing the existing social gaps, the lack of protection in social security and the issuance of an inapplicable legislation by the administration that contravenes all constitutional requirements.