La dualidad jurisdiccional en materia de Seguridad Socialdelimitación y distribución de competencias entre el contencioso-administrativo y social

Abstract

The jurisdictional spin-off regarding Seguridad Social (Social Security Administration) occurring presently is highly disappointing (protective action: social jurisdictional order, framing action, liquidating and tax-collecting management: Contencioso-administrativo (Administrative Litigation) jurisdictional order). Within the recent past, it can be observed a tendency to readministrate Seguridad Social that has meant a partial emptying of the competences of the social order. It is unclear the reasons why this situation under analysis persists, and these are thought may be related to the interest of the Administration. Although many do agree on the disadvantages, both theoretical and practical, as well as functional: risk of jurisdictional pilgrimage, risk of generating contradictory criteria on several aspects of a same problem in different jurisdictional orders, overload of the jurisdictional order¬- Contencioso-administrativo- already overloaded and lacking specialization; dissatisfaction for the actionable, expelled from his natural jurisdiction -social- and who is referred to a more expensive and time-consuming jurisdiction- the Contencioso-administrativo. As it has been pointed out before, ?these are not more than decisions of a (whimsical or interested) legislative policy, and as such we must comply with them, although we never get tired of criticize them?. Given the state of things, the best solution is to unify under the social jurisdictional order all issues concerning Seguridad Social on a broad spectrum (framing acts, contributions, tax collection, protective action) also including control over the legal authority to impose penalties, although this measure required procedural adjustments and modification of the judicial staff. On this subject, a possible proposal would consist of preserving the present procedural modality of Seguridad Social (arts. 140-147 LJS), to identify from complaints about social benefits and regulate one or several modalities or procedural specialties, inspired on Contencioso-administrativo procedures, although not overlooking the hallmarks of social jurisdiction (celerity, immediacy, free service?) for the rest of concerns (tax-collecting management, sanctioning?) in which administrative mediation predominates. Ultimately, it would be about resuming the anticipated solution in LJCA project before being voted in Senado (Senate ? Upper House) and using a single criterion of attribution of powers of an objective nature, in accordance to number 5, article 9 LOPJ, allocating these concerns within the social judicial order with no other exception than the control of the obligatory legal authority on the part of the Administration concerning Seguridad Social issues, the use of legislative delegating awarded to the Government by the Cortes Generales (General Courts: Upper & Lower Houses) to rule legislative Decretos (Decree) and complaints about patrimonial responsibility against institutions within Seguridad Social. The present research is founded on vast scientific and jurisprudential doctrine about the jurisdictional duality in this issue, delimiting and distributing competencies between Contencioso-administrativo and social orders in accordance to the current judicial order.