199.2 Positive silence is, for all intents and purposes, a decision terminating the proceedings, without prejudice to the power of invalidity provided for in article 213 ex officio. The number of negative administrative silences arose in France following the publication of two basic standards; the first, published in 18641 during the reign of Napoleon III, was intended to offer the discontented with the administration the opportunity to express themselves in a controversial way and thus strengthen the state. The second rule, adopted under the Third French Republic (1900), generalized the system initiated by the previous norm by equating administrative silence with an implicit decision of rejection that opened the doors to administrative litigation. Therefore, this law aims to remove obstacles to access to the Council of State and to combat administrative inertia. On the other hand, for Ramón PARADA, positive administrative silence is “a real contribution” to Spanish law and therefore does not have the support of comparative law, which is even considered unconstitutional in Germany.2 After the deadline, the silence of the administration assumes that its decision is positive, as if it had been the express decision of the procedure and is affirmed before the public administration. as before, any natural or legal person, whether in a public or private capacity. In this case, with negative silence, an administrative act does not arise presumed. Because negative silence is a legal fiction that happens to act as an alleged act. Administrative silence would apply in this case if the interested party has made a positive request. Similarly, in the event of a dispute, the administrator may do so before a higher administrative body or before the judicial authority (contested administrative procedure).
5. Those to whom, according to the express law, this modality of administrative silence applies. In this sense, the screening assessment procedure is subject to positive or negative silence in the absence of timely promulgation. For part of the doctrine, negative administrative silence is a simple legal fiction that allows the administrator to access the higher authority, while there is no real expression of will on the part of the administration. Thus, García de Enterría points out that: “Negative silence was therefore a simple fiction with strictly procedural, limited effects, page 219, in addition to opening the way to vocation”5. Similarly, GARCÍA TREVIJANO6 points out that negative silence “is a simple legal fiction that allows interested parties to access the next instance and finally to the way of jurisdiction, in the absence of an explicit decision on their applications or appeals”. (e) inform the petitioner of what has been resolved in accordance with the rules for the notification of administrative acts. Article 66 provides that the effects of both types of silence are equivalent to those of a dismissal decision. 4. All other procedures at the request of a Party which are not subject to exhaustive negative silence, with the exception of the ex gratia application and consultation procedures, which shall be governed by its specific Rules. To know the effects of administrative silence, it is necessary to know some guidelines. As an essential element of administrative law, Article 2(20) of the Political Constitution of Peru is relevant, which states as a fundamental right of every person: “To formulate petitions individually or jointly in writing before the competent authority, which is obliged to give the person concerned a written response within the legal period, under his responsibility”.
It is a way of closing an administrative procedure without an explicit act of debate. The proceedings shall be deemed to have been terminated on the expiry of a certain period of time without it being indicated whether what the interested party intends to do is considered or rejected. In accordance with Article 32, a classification has been applied to the administrative procedures to be initiated by the persons managed before the bodies in order to satisfy or exercise their interests or rights. In this sense, the procedures shall be classified in accordance with the provisions of this Chapter into: automatic approval procedures or prior evaluation by the company. Positive administrative silence, unlike negative administrative silence, constitutes a genuine presumed act and therefore has the same effects and functions in the same way as acts enacted by the administration. For this reason, the administration cannot expressly express its opinion within the meaning of page 221 contrario, i.e. negative, after the expiry of the decision period. Nor can the administration withdraw the alleged act from the legal world, unless it is done by the means provided for by law.
Meanwhile, Art. 65 of the same justifies negative silence as an exception to the rule of the previous article in the following cases: in Spain, the standard meaning of administrative silence is appreciative, although in practice there are so many exceptions that almost never occur. In sanction procedures, however, the esteemed silence is very important. In this case, if the public administration does not respond in a timely manner to an administrative complaint, the administrator will be informed of the reason and the sanction will be deemed not to have been imposed. Administrative silence is regulated by Articles 24 and 25 of Law 39/2015. 2. Where they challenge other previous administrative acts, with the exception of appeals. Mediation, arbitration and conciliation procedures, as well as those terminated by agreement or agreement, are not subject to the regime of silence.
This technique is correlated in proceedings initiated at the request of the interested party with the obligation to take and notify an explicit decision in all proceedings which is incumbent on the public administration and which has been previously detected; Duty that exists in any procedure, regardless of its form of initiation This number occurs automatically by the express will of the law. Similarly, their effects concern administrative procedures, which are automatically approved in the order in which they were requested (Articles 36, 37 and 199). The silence of the administration is a mechanism that protects citizens from violations of the public administration in their procedures. When it comes to administrative silence, we must bear in mind that it coincides with one of the classes of administrative procedures regulated in the TUO of Law 27444.
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