legitimación e interés de los terceros relativos en la acción de simulación contractual en Colombia

Abstract

This article seeks to make understandable the thesis that material presuppositions of legitimation in the cause and interest in the contractual simulation action in Colombia, have migrated, although not in a sufficiently clear way, in the direction towards the protection of the rights of non-celebrants but affected by the contract, known as relative third parties. For this purpose, the contours of the simulation action are analyzed from the doctrinal and jurisprudence, contrasted in three relevant cases, such as: I) spouse or partner; ii) child support creditor and; iii) business partner. In the analysis of the information, the hermeneutical methodological approach is used, in synchrony with the tools of decisional coherence and dynamic analysis of the jurisprudence raised by Diego López Medina. Finally it is concluded that the jurisprudence should leave behind the confusing use of the category of interest in the action, to specify it and subsume it in the legitimation in the case, so from such conceptual clarity, the rights of the relative third parties will be better guaranteed.