The consequence of the foregoing has been that the content of the principles of legality and reservation set out in the jurisprudence of the Supreme Court may have different limits from those of the jurisprudence of the Constitutional Court. Therefore, in order to discuss the limits of these principles, “about which there will always be controversy”, I consider it necessary to analyze their specific role in the Peruvian legal system. This is, and in a very general way, the purpose of this work. To this end, we will focus on the evolution of constitutional fiscal principles in accordance with the jurisprudence of the Constitutional Court, given that very few national doctrines have been developed in recent years on this subject± as very few national doctrines have been developed on this subject in recent years. “The imposition of certain limits provided for in© the Constitution allows, on the one hand, that the exercise of the power of taxation by the State is constitutionally valid; On the other hand, it ensures that this power is not exercised arbitrarily and to the detriment of the fundamental rights of the individual. Therefore, it can be said that the constitutional principles of taxation are limits to the exercise of the power of taxation, but they©are also guarantees of the people against that power; Therefore, this exercise will be lawful and fair insofar as it is carried out in accordance with the constitutional principles set forth in article 74 of the Constitution, such as legality, reservation of rights, equality, respect for the fundamental rights of individuals and the prohibition of confiscation. (emphasis added). Within the framework of the principle of legality, it acts in conjunction with the principle of the general interest, according to which the private interest must give way to the public or social interest, and with the principle of separation of powers, according to which public authority is divided into bodies with specific and limited functions for each of them. The principle of legality is to ensure and protect legal certainty. Although it is used throughout the legal system, it is gaining ground in the areas of criminal law, administration and taxation. This is called the “reserve zone” of the law, the area in which the settlement of a case falls within the legislative jurisdiction of Congress. In general, this implies that all authorities and citizens are subject to the law and can only do what is or is not allowed by law. The principle of legality is combined with other general principles of law.
The principle of legality is to give priority to the law over any activity or function of public authority. [3] For example± Dino Jarach stated with regard to these functions that: “[â¦] the so-called `principles of taxation` perform various functions: in some cases, they are rules, guidelines or guidelines of the tax measure, others are constituted in the mandatory reference or model, others act as a standard of adequacy control, benefits, objectives, etc©. ; others, “in finâ are expressions of good wishes”[3]. (JARACH, Dino. Public finance and tax law. Third edition. Buenos Aires: Abeledo-Perrot, 1999. p.
308). The main application of the principle of legality in administrative law concerns its power to impose penalties. This implies that the attribution of the public administration to the sanction can only be achieved by laws. Criminal legality is therefore a limit of the punitive power of the State in the sense that only conduct that has been expressly designated as a crime in a law before the offence is committed can be punished. The principle of legality corresponds to the notion of depersonalization or impersonality of power and that of rational legitimacy. It is not that power is not exercised by men, but that men who exercise power do so in accordance with the legal order established in legal norms. Hence the saying that people do not govern, but the law. In recent years ±, the Supreme Court of the Republic has settled several controversies[1] in tax matters, which allows us to review the definitions of the tax principles of legality and reservation of rights in the context of the Peruvian legal system.
In those judgments, which concerned the analysis of the constitutionality of the provisions governing the collection of the contribution by decree to the OEFA and the economic remuneration for the use of water by the State, the fiscal principles of legality and reservation of rights were of paramount importance for the settlement of disputes. In these©cases, however, the Supreme Court decided to accept definitions of these principles based on the literality of the constitutional text and international doctrine, without referring to the evolution of these definitions in the jurisprudence of the Constitutional Court. [5] See: ARAOZ VILLENA, Luis Alberto. “The principle of legality in the new political constitution of the state”. In: Revista del Instituto Peruano by Derecho Tributario, 25. Lima: IPDT, December 1993. pp.55-71. Asã como, MEDRANO C., Humberto. “Closer to the principle of legality in Peruvian tax law”. In: Revista del Instituto Peruano de Derecho Tributario, 12. Lima: IPDT, June 1987.
pp. 3-27. It follows from the foregoing that the tax principles of legality and reservation of rights are complex. This corresponds to its important role in the legal system. As we have already mentioned, the fiscal principles of legality and reservation of rights play a dual role: they allow the norms of state power and are constitutional guarantees of respect for fundamental rights. Therefore, the practical application of these principles should allow for the effective and appropriate exercise of the power of taxation, always within the framework of the law and the Constitution, taking particular account of the fact that such application must not infringe the right to property or the individual freedoms of taxpayers. The application of these principles must not be unrelated to these roles. What is the principle of legality? and what is a legal reserve? What does the standard mean to us? Unreasonableness is therefore an essential rule, also known as the “principle or guarantee of due process on the merits”.