Publicación:

Las servidumbres petroleras en el marco de la ley 1274 de 2009 y el derecho a la propiedad, efectos y consecuencias, indemnización integral y avaluó comercial o de perjuicios

Resumen

In our country, the easement has the category of Main Royal Law, by means of which, the right of ownership is limited to the owner of a good, there being a great variety, one of them being the oil servitude. For our country, the mining industry or mining locomotive as it is called, especially the oil industry, have an important weight in the National budget, because from there, important resources come out for the support of the State, both at the central and In the regions (royalties), that is why, in order to guarantee an effective development of the public hydrocarbon policy, we seek to provide all the guarantees of order, administrative, security, legal, etc., for its development. On the other hand, in our country the right to private property, in the Political Constitution has the Constitutional rank Art 58, the above raises a problem regarding the implementation of this type of easements, because although it is true that, the general interest premium on the particular interest and that under our modality of State, the subsoil is of his property, but in addition, that the private property has a social function and that of implementing an administrative measure of expropriation proceeds an integral compensation to the affected one, which, it must include both material and moral damages; eventually, it could be supporting exercises of abuse of the right, for the benefit of individuals or of the same State, passing over Human Rights, recognized, not only in our system, but in the international system. That is the issue that we intend to address in this paper, as we consider it vital to determine the scope of the term indicated in Article 5, numeral 5 of Law 1274 of 2009, regarding integral compensation, so that there is clarity regarding to its procedure, applicability, relevance and the guarantees that must surround those affected with said provision. Methodologically, qualitative methods of an investigation of this type will be used, such as: the inductive, the deductive and the synthesis. Regarding the selection and classification of sources, the signing system will be used. Since the sources to consult are fundamentally legal. For its analysis and interpretation, the grammatical and historical and teleological technique of the norm will be used, as well as the argumentative figure of the analogy. Regarding the validation of jurisprudential and doctrinal sources, the content analysis technique will be implemented, subjecting the various positions to study and critical analysis, trying to synthesize the best conclusions of one or another exponent.