Criterios jurisprudenciales para identificar la subordinación jurídica en un contrato realidad

Jurisprudential criteria to identify legal subordination in a contract reality

Abstract

Aristotle said that "man is a social and political animal" denoting the need for human beings to interact with others in order to meet their needs in community for the benefit of the gifts with which each individual is born. There are, mainly, two types of contracts that allow access to the work of the other, on the one hand, the Service Provision Contract, characterized by a wide configuration margin where autonomy of the will and the recognition of negotiation equality prevail; and, on the other, the Labor Contract that recognizes a bargaining asymmetry, granting irrecusable rights to the worker, thereby reducing private bargaining autonomy. The aforementioned archetypes are characterized by having the same object, an obligation to do, and a common origin in the Leasing Contract that explains why they are genetically similar, since in both there is personal benefit, remuneration and subordination, only that in the workplace the latter is legal and in the provision is technical. This work will expose the types of subordination that are legally recognized, indicating which one applies to each of the aforementioned contracts and, likewise, the criteria developed by the Supreme Court and the Council of State to recognize one or the other, starting of the need to study each specific case according to the nature of the work contracted and, in the case of public law, the missionary function of the entity.