CIVIL LIABILITY OF THE STATE FOR OMISSION CONDUCT

Abstract

ABSTRACT: Civil liability of the State is the duty of the Public Power to repair the damage caused by its actions.  At first, the idea of ​​no liability of the State prevailed, which evolved to the present stage of strict liability, which dispenses with the fault element for its configuration.  Strict liability is based, in particular, on the theory of administrative risk and has the broadest protection in the theory of integral risk.  In the first, unlike the second theory, exclusions of liability are admitted, which correspond to cases in which its elements (act, damage and causal link) are not met.  The Brazilian legal system enshrines strict liability in article 37, paragraph 6 of the Federal Constitution, which doctrine and jurisprudence link precisely with the theory of administrative risk.  However, in cases of state omission, the idea of ​​applying subjective liability has still prevailed, to the detriment of the precept engraved in the Constitution, and in cases of specific omission, the fault element should be removed for better observance of the rule constitutional.