Tutela action against custody sentences: A manifestation of the constitutionalization of jurisprudential law in Colombia [Acción de tutela contra sentencias de tutela: Una manifestación de la constitucionalización del derecho jurisprudencial en Colombia]
Restrepo Tamayo J.F.
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As of SU-627 of 2015, the current constitutional precedent regarding the admissibility of the tutela action against custody sentences allows the application of two constitutional doctrines that are hermeneutically refined without generating the existence of a chaotic jurisprudential line: (i) the general rule of inadmissibility of the tutela action against judgments of guardianship argued in institutions such as the right to the second instance, the possible revision of the sentences of guardianship, constitutional res judicata and the immediate enforcement of the guardianship sentence; and, (ii) the exceptional origin of the tutela action against custody sentences when a situation of fraud is presented that configures the phenomenon of fraudulent res judicata in application of the principle fraus omnia corrumpit (fraud corrupts everything). This constitutional precedent can be described as a manifestation of the constitutionalization of jurisprudential law in Colombia that is characterized by: (i) the reconfiguration of the system of sources of law; (ii) the incorporation of new methods of interpretation; and, (iii) the opening to new forms of constitutional litigation. © 2019, Universidad de Talca,. All rights reserved.
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