Towards a dogmatic autonomy of administrative law: Some reflections regarding the prescription of the sanctioning power and fault against legality

Abstract

One of the issues that generates the greatest discussion and jurisprudential zigzag —using Alejandro Vergara’s metaphor— in administrative law, is the term of the administration to exercise the sanctioning power. Indeed, although since 2017 the jurisprudence of the Supreme Court on this point seems to have been consolidated by assuming that the extinctive prescription of civil law must be applied, the problem does not seem to be close to being resolved. Indeed, to date, as in practically all areas of administrative sanctions, the discussion has been crossed by criminal law. Our highest court, however, does not seem to have collaborated greatly in clarifying the essential points of this discussion, referring, as is well known, to pointing out that the principles of criminal law must be applied “with nuances” in matters of administrative sanctions. One of the axes of the discussion —and which is specifically linked to the prescription— is what should be understood by “common law” in administrative settings.