The Contracts of Public Administration in Spanish Legislation
| Published date | 01 March 1980 |
| DOI | 10.1177/002085238004600114 |
| Author | A. Guaita |
| Date | 01 March 1980 |
| Subject Matter | Articles |
iv
articles
in
question
therefore
comply
with
the
major
theoretical
sources
on
which
human
rights
are
based.
The
protection
machinery,
especially
that
provided
by
the
courts,
is
well
established
and
solidly
constructed
both
from
the
point
of
view
of
institutions
and
procedure.
Under
Title
VI
of
the
Constitution,
concerning
the
judiciary,
the
ordinary
courts
are
the
protectors
of
rights
and
freedoms.
But,
from
the
consti-
tutional
point
of
view,
the
possibility
should
also
be
taken
into
account
of
an
appeal
to
the
Constitutional
Court
(Articles
159
to
165
of
the
Constitution),
on
the
ground
of
unconsti-
tutionality,
against
laws
and
other
provisions
having
the
force
of
law
or
individual
appeals
de
amparo
against
the
violation
of
rights
and
freedoms
embodied
in
the
Constitution.
The
recognition
and
protection
of
fundament-
al
rights
and
public
freedoms
and
the
existence
of
institutional
and
procedural
rules
do
not,
however,
altogether
do
away
with
the
difficulty.
Two
important
offices
also
have
to
be
taken
into
consideration.
One,
the
Defender
of
the
People,
is
new,
and
the
other,
the
Public
Prosecutor,
is
long-established.
Even
if
they
are
not
competing,
they
are
at
least
liable
to
be
found
on
the
same
ground.
The
Defender
of
the
People
was
instituted
by
Article
54
of
the
Constitution,
on
ombuds-
man
lines,
but
with
original
features.
The
purpose
is
not
to
supervise
administrative
activity
as
such
in
general,
but
to
defend
constitutional
rights
with,
to
that
end,
some
power
to
supervise
the
administration’s
activ-
ities.
But
it
seems
likely
that
the
institution’s
organic
act,
the
Bill
of
which
has
been
debated
might
finally
make
the
Defender
more
like
an
ombudsman.
In
defending
constitutional
rights,
the
Defender
might
act
politically
by
referring
to
the
Cortes
or
judicially
through
the
Con-
stitutional
Court.
In
the
latter
case,
it
should
not
be
forgotten
that
in
the
event
of
an
appeal
on
the
ground
of
unconstitutionality,
the
Public
Prosecutor
may
also
have
to
intervene.
The
same
generally
applies
to
appeals
in
individual
cases
in
which
the
Public
Prosecutor
is
always
present
and
even
plays
a
leading
role.
Before
the
ordinary
courts,
the
Defender
must
neces-
sarily
act
through
the
Public
Prosecutor.
The
Public
Prosecutor’s
role
is
specified
in
Article
124
of
the
Constitution.
His
mission
is
to
promote &dquo; the
working
of
justice
in
the
defence
of
the
rule
of
law,
of
citizens’
rights
and
of
the
public
interest
as
safeguarded
by
the
law &dquo;,
without
prejudice
to
the
intervention
of
other
bodies
or
of
wider
action
by
&dquo; pro-
tecting
the
independence
of
the
Courts &dquo;,
which
implies
that
his
jurisdiction
competes
with
that
of
the
Defender
of
the
People.
Like
the
latter,
the
Public
Prosecutor
holds
an
extra-
judicial
office.
The
Article
describes
his
role
before
the
Constitutional
Court,
where
he
inter-
venes
in
all
appeals
in
individual
cases
and
only
in
certain
appeals
against
unconstitution-
ality,
and
before
the
ordinary
courts,
in
crimin-
al,
administrative,
or
civil
cases.
Certain
dif-
ficulties
which
arose
with
regard
to
his
duties
in
connection
with
administrative
cases
seem
to
have
been
settled.
As
both
the
Defender
and
the
Public
Pro-
secutor
may
be
involved
in
one
and
the
same
case,
they
may,
in
that
event,
at
least
before
the
Constitutional
Court,
act
either
as
partners
or
as
opponents.
The
position,
as
has
been
seen,
is
different
before
the
ordinary
courts.
The
Contracts
of
Public
Administration
in
Spanish
Legislation
A.
GUAITA
Contracts
are
among
the
most
ancient
and
well-known
legal
institutions.
The
question
raised
here,
in
Spanish
legislation,
is
the
nature
of
contracts
of
public
authorities,
the
way
in
which
they
differ
from
other
contracts,
and
why
they
come
under
a
special
system.
Owing
to
the
authorities’
powers
to
take
unilateral
action,
contracts
are
appreciably
less
important
in
public
than
in
private
law.
Yet,
by
the
number
and
size
of the
contracts,
the
author-
ities
are
the
country’s
leading
contracting
parties.
They
are,
however,
limited
by
admin-
istrative
law
and
may
only
enter
into
contracts
in
matters
that
are
transferable
or
in
which
concessions
may
be
granted.
Although
contracts
of
public
authorities
in-
volve
two
parties,
they
are
administrative
and
legal
acts
under
administrative
law,
so
that
the
theory
of
administrative
acts
generally
applies
to
them.
At
Spanish
law
this
means
that
in
the
event
of
a
dispute
the
Administra-
tion
and
not
the
ordinary
court
is
competent
to
deal
with
the
case.
There
is
a
fairly
lively
controversy
among
writers
on
the
subject,
some
of
which
say
that
the
public
authorities
only
enter
into
contracts
in
a
private
capacity,
while
others
consider
that,
as
authorities,
they
can
only
perform
unilateral
acts.
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