Cementerios públicos

mitos urbanos sobre su régimen jurídico y el problema de las concesiones a perpetuidad

Abstract

The article tries to highlight the applicable legal regime at the time of legislating locally on the use of public cemeteries as assets of the state public domain, banishing or overcoming some regulatory practices that attempt to install the possibility that incompatible legal transactions can be carried out by virtue of the quality of the asset, ignoring its affectation in order to satisfy the general interest. At this point, the national jurisprudence begins to echo the opinion of the majority doctrine on the subject and to pronounce itself by providing solutions based on a serious analysis of the institute in question. Perpetual concessions are postulated as embryonic of at least two problems: on the one hand, the administration, maintenance and expansion of public cemeteries is not sustainable in time; and on the other hand, they generate in the collective ideology a sort of "proprietary" myth regarding the legal relationship between the citizen and the public property, a situation that is enhanced by confusing local regulations, as well as by the uses and customs that have been dragging on since long ago due to the non-existence of such regulations. Notwithstanding the above, the national and international comparative regulations, with greater or lesser precision and success, show that the regulatory trend revolves around the establishment of temporary concession regimes for the use of public cemeteries, outlining a brief approach to the general guidelines and legal nature of the so-called trans-structural delegation of duties as a figure suitable for those cases where the local authorities, for various reasons, cannot take full or partial charge of everything related to the burial sites.