The origin of the guardianship action against financial and/or banking entities

LA PROCEDENCIA DE LA ACCIÓN DE TUTELA CONTRA ENTIDADES FINANCIERAS Y/O BANCARIAS

The guardianship action is a mechanism for the protection and guarantee of fundamental constitutional rights. Its origin is delimited by what is established in article 86 of the national constitution, and developed by Decree 2591 of 1991 and by the repeated pronouncements of the Constitutional Court that have been issued on the matter. Specifically, the constitutional court has developed a jurisprudential line related to the origin of the protection action against individuals who provide a public service, framing within this issue what is related to the origin of the protection action against banking and/or financial entities, who, by showing a degree of superiority in the contractual relationship with users, may commit abuses or make decisions that affect fundamental constitutional rights. Although there have been some pronouncements from the highest constitutional body, there is no easily understandable academic work among ordinary society that makes it possible to accurately identify when the protection action is appropriate against this type of individuals who provide a banking and financial service, for which reason It is necessary to address the subject of study, for which we will initially delimit the guardianship action conceptually, later its origin against individuals will be explained and then, based on inductive reasoning, its origin will be identified against banking and financial entities, managing to demonstrate what are the problematic situations that can generate the violation of fundamental rights and what are the most violated or threatened regulatory rights based on a documentary and jurisprudential review.

DOI: http://dx.doi.org/10.21017/Rev.Repub.2023.v34.a146