Autonomy in public universities in Mexico
Introduction
By reviewing specialized sources on research in the field of higher education, it allows me to affirm that its object of study is relatively small and fragmented and with extremely diversified institutional bases, which can be taken as risk but at the same timeconceptualize as opportunities and challenges. In certain situations, specialists in the field address the theme of higher education in short -range projects or dedicate their academic work for long periods.
One of the main problems addressing the university concept implies identifying the policies, reforms and processes whose characteristics are considered to contribute significantly to the clarification of the concept of higher education.
In this way, the efforts made to define the legal nature of higher education are marked by confusion. For some it is a concept developed by policy designers, for others it is an elusive concept, and for many others, a definitive and last definition of its legal nature of higher education institutions is not possible.
The richness and complexity of higher education institutions (IES) in Mexico especially the National Autonomous University of Mexico (UNAM) and the different conceptions that coexist around the institution have motivated the realization of the present research work, which has asobject to understand the legal nature of the institution indicated as well as the legal regulations established in the different codes and laws for its operation.
Therefore, the central objective of the investigation is to know and understand the legal nature of public IES and the consequences of the process of transformation of the Mexican education system, which entails a comparison with other institutions that are dedicated to the trade of goods and services. The general objective of work is to know the laws that regulate the functioning of the IES compared to other institutions that are dedicated to trade in Mexico and find the coincidences, differences and complexities in relation to them.
Institution semblance
Without eagerness to make a pretentious historical analysis about the institution, this section will realize how higher education in Mexico has evolved
The University of Mexico, is founded by Roy. a) The viceroy and the audience take care of everything concerning the organization of the institution and b) the king would be the employer since he dealt with the support of the institution and would dictate the statutes of the same;Therefore, three levels are distinguished within the institution: a) Corporate where the institution is self-governor by different cloister, b) administrative and financial and c) academic.
The 1814 Constitution allocates articles 38.39 and 40 to regulate everything related to instruction. Article 38 establishes that no kind of culture, industry and commerce can be prohibited to citizens of the country. The Political Constitution of 1824 does not set conditions precise to national education, but protects the right of the entities recently federated by the Constitution to organize their education according to their specific needs.
At the beginning of the 19th century, the institution was no longer profitable since it had diverted its funds for its maintenance within the context of independence of the Mexican State and political interests between conservatives and liberals. Thanks to these disagreements, the institution suffers closures and reopenings, until Maximiliano de Habsburg closed it definitively on November 30, 1865. (Alvarado, 2009)
In this way, the organic laws that have governed the university give a new course and a leading role between the university-state relationship. The first Organic Law is established on December 2, 1867, which determines the National Preparatory School as a cornersAutonomy of the institution acquiring the name of the National University of Mexico, obviously the new institution was beaten by the armed movement of the Mexican Revolution for which it was not prepared as well established;"The university was not based on a well structured project, but on a set of good intentions" (P.148), however, the armed movement served the University to rethink a new educational project at a higher level and strengthen its internal structure, the third Organic Law of July 22, 1929 intended to modify the internal functions of the University with autonomy with an autonomyLimited and federalized, the fourth Organic Law of October 19, 1933 intended to privatize the autonomy of the university under the socialist regime and therefore remove the character of national. Marsiske (2010)
The fifth and final reform of the Organic Law deserves a separate study, since a model to be followed in the University-State relationship is established, said law was promulgated on January 6, 1945 and is the one that currently governs the University andDefine: The University is a decentralized body of the State, endowed with full legal capacity, of a national nature and with an annual item guaranteed within the Federation Expenditure Budget. Marsiske (2010)
In conclusion, addressing the semblance of the UNAM is to address a company that has evolved along with the Mexican State, from the conquest to the present, is to talk about the creation of major schools and minor schools, of the Foundation of Institutes of Institutes ofResearch with closures and reopening, repeal and ratifications of laws and decrees;turning the University into the catalyst for the country’s problems and being able to offer different solutions to those raised by the federal executive.
In Mexican commercial legislation, no precept that defines legal personality can be found although the term is used by it;especially in aspects of adjective or procedural nature. Thus, the legal provisions that refer to legal personality, generally do so based on the necessary quality that a person must have to intervene in a certain act or legal business business.
In other commercial laws, the term is used to refer to the fact that certain entities belonging to the State, responsible for regulating various aspects of commercial activity, have their own legal personality, without saying what the latter consists of. In the case of a mercantile society that appears in trial, it is necessaryto act in the name of that, conferred by the body empowered for it.
The Federal Political Constitution in its articles 5, 13, 14, 16, 20 fractions V and IX, among others, uses the word person to refer to both physics and morals, considering them as subjects of law in the generic hypotheses that regulateThose precepts. From such normative assumptions, it follows that the constitutional text refers to those who are holders of individual guarantees, understanding both the moral and physics.
In the Federal Civil Code, the following are moral people: the nation, states and municipalities, other public corporations recognized by this law, professional associations and others referred to in section XVI of article 123 of the Federal Constitution. However, the merchant qualification that is carried out in the Commercial Code with respect to the legal entity of the Commercial Company, is an effect of the element related to its legal personality.
In the General Law of Commercial Companies, there is the element concerning the will of the legal person (moral) merchant. However, this will refers to the activities of the legal entity that are reflected in the legal relations that are established or that are created as a result of this action, of which subjective rights and obligations are necessarily detached for that, depending onthe case.
Another of the requirements that help to specify the legal personality is the act of fact that individualizes that subject, which takes place when the moral person adopts some of the social types provided in the General Law of Commercial Companies, which individualizes it as a societydetermined commercial. In addition to the above, as these species of societies are recognized in the mentioned legal system, another of the personality elements is obtained, which is the legal recognition of that individualization and in turn as a result of the concurrence of these elements, the person the personMoral acquires legitimate legal personality to consider it a holder of rights and obligations.
As a conclusion of this section, two terms can be defined:
- Personality is the individualization of the legal entity through a situation in which it is placed, provided by a norm of law, which allows it to be distinguished from other volitional entities in legal-commercial relations of the scope of the right in which the specific case is developed.
- Moral person is a subject of abstract existence, legally built with their own will, rights, obligations and a legal personality that individualizes it in the relations of law and makes it a center generating rights and economic, financial and commercial obligations.
Administrative decentralization
The study of the Legal Framework of Autonomous Public Universities in Mexico must begin with an analysis of the form of public administration organization that characterizes them called administrative decentralization. In this way and resuming the above concepts, the State has created entities with legal personality and its own assets, disconnected to a lesser or greater extent of the centralized public administration for the fulfillment of certain purposes.
It should be noted that administrative decentralization has obeyed the convenience of subtracting certain activities of centralized public administrative action, on the other hand it implies the introduction of a series distinctive rules related to the powers of appointment of authorities, the powers of command and surveillance, the faculties of review and disciplinary, as well as the powers for the resolution of conflicts of competencies.
In this sense, that the decentralized bodies have their own legal personality, it represents that they have a center for the imputation of rights and duties other than the State, that is, they can enter into their own legal relationship, regardless of the State. The birth of the legal personality of the decentralized bodies has its bases in a law or decree of the Congress of the Union or, where appropriate, in a decree of the Executive, as provided in article 45 of the Organic Law of the Federal Public Administration of the Federal Public Administration;However, the law that emerges from said article does not correspond to the reading of the constitutional article 90.
It can be found that article 90 constitutional refers to the Federal Law of Parastatal Entities (LFEP), which must regulate all decentralized organisms, the relevant, it results when said law is demarcated by universities with autonomy pointing out the following:"Article 3. Universities and other institutions of higher education to which the law grants autonomy, will be governed by their own specific laws ”.
When the own heritage item is addressed, it is legally talked about all the rights and obligations that can be quantifiable in money, and that are assigned to a person. Rights are understood as property and credit rights, in other words, all the credits that the person in question may demand against other persons who are their debtors;That the decentralized organs have their own assets means that it is distinguishable from the national heritage, but this does not allow them to leave the framework established by the General Law of National Assets, and that, it is only determined by their own organic laws. In this way it is understood that the State affects or allocates part of its assets to the needs of the public service in question, but does not completely disregard it.
As for organic autonomy, it must be mentioned that the activities of the decentralized organism must be carried out by own authorities and different from those of the centralized administration, in addition, the former can oppose the second sphere of autonomy. The powers that the central authorities have to guide, define and monitor the decentralized organs have a great variation;Everything will depend again on Congress to determine the respective Organic Law.
However, in the case of public universities, autonomy must be conceived at its maximum expression, which is contemplated in paragraph VII of the Constitution. This article is important since it summarizes all the characteristics of autonomous higher education institutions. In the aforementioned article, you can examine in detail the specificity of this type of decentralized organs and the differences that others that carry out activities such as industry and commerce.
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