The present work is a critique of the negative legal rate imposed for the benchmark in Article 381 of Law 906 of 2004; in turn, seeks to expose a solution for judges to make their decisions, including that of convict, based on the exclusive use of the means of knowledge, according to the postulate of material justice under the Social Status of law and the application of the exception of unconstitutionality. Accordingly, it is divided into three chapters; the first, dedicated to exposing the workings of the administration of justice within the political model of the 1991 Constitution, in the second, the regulatory treatment of the benchmark will be described later in the third chapter, it will build a solution to judicial officials admit and appreciate the reference test and finally the conclusions will be presented.