A responsabilidade extracontratual da Administração pública por atos omissivos

• Autor(a) principal: Peixoto, Alessandra Cristina Tufvesson
• Data de Publicação: 2010
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9513
• topic: Strict liability; Public Administration; Damages arising out of an act of omission; Responsabilidade (Direito); Administração pública; Atos jurídicos; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO

This paper examines the strict liability of public administrative authorities for damage caused by omission. The author argues in favor of the correct application of article 37, paragraph 6 of the Federal Constitution, which provides for the strict liability of administrative authorities when the nexus of causation between their acts or omission and the occurrence of unjustified damage has been established. A fresh approach to tortious liability bases the duty to redress not on the activity undertaken by the agent but, rather, on the consequences suffered by the victim. This shift in focus is particularly relevant (and logical) in relation to the liability of the State, given that the principle that underlies the State s duty to redress is that of equitable apportionment of burdens arising out of public administration. Whenever State administrative activity, undertaken on behalf of society as a whole, results in damage to a given individual or entity, the State is under a duty to repair such damage. As such there has been a shift away from the need to establish the existence of the culpability (negligence) of the public authority. This correct interpretation of the constitutional provision, recognizing that the State is strictly liable for damage caused by the acts or omissions of public authorities is in line with the principle of social solidarity, which in turn leads to the predominance of the victim s right to redress over the interests of the agent who/which, by act or omission, caused said damage. This is the legitimate basis for the adoption of the risk of the administration doctrine, whereby [the duty to redress] is established via examination of the existence of a nexus of causation, with the administrative authority being entitled to assert facts or issues that may exclude [or diminish] its liability. Further justification for this approach arises out of the fact that the victim [unlike the administration] generally speaking derives no benefit from the fact or act which causes the damage. In such circumstances, the public administrative authority s duty to make redress will require merely that three elements be proved: the act or omission of the State, the occurrence of unjustified damage, and the nexus of causation. Reference will be made of case law from Spain. The author therefore aims to set out the basic elements necessary for comprehension of the theme and the necessary prerequisites to an assertion of the strict liability of public authorities for acts of omission. After setting out the necessary prerequisites to a correct understanding of the theme, the author concludes that public authorities may be held strictly liable for damage arising out of an act of omission, albeit that this does not preclude the need to establish a nexus of causation between the relevant act of omission and the damage for which redress is sought.