A responsabilidade civil do estado pelos atos do poder judiciário

Abstract

The civil responsibility of the State for the activity of the judiciary is a very controversial subject that provides innumerable positions. In this vision, the objective of this monograph is to analyze if the State can be civilly responsible for the acts of the judicial activity to the mold of the general rule. For that, a doctrinal, legislative and jurisprudential research was done to substantiate the present achievement. Initially, it was tried to weave a theoretical framework to approach this theme, with the survey of the history evolution of the civil responsibility of the State, the development of this in the mother country legislation, especially the art. 37, § 6, of the Federal Constitution, as well as highlighting the general elements of responsibility. Entering the responsibility of the Judge State, the theory of irresponsibility of the jurisdictional acts and the arguments against this understanding were analyzed in the first moment. In addition, by entering into the aspects of judicial activity, judicial proceedings were distinguished from the judicial ones, elucidating that the former are predominantly administrative activities and thus constitute an objective responsibility by application of the general rule of state responsibility, being divergent the positioning of responsibility in the judicial acts. Regarding jurisdictional acts, the harmful activity may be due to both a commissive and omissive act, which would be the delay in rendering the judicial activity. In this context, the more traditional doctrine and the Federal Supreme Court, followed by other courts, defend the impossibility of objective liability in the hypothesis of damage caused in the exercise of judicial activity, excepting cases provided by law such as judicial error and arrest beyond the time of condemnation. In all other cases, it defends a subjective responsibility linked to fraud, fraud or the fault of the magistrate. On the other hand, the most current doctrine has assigned greater responsibility to the State, in the form of civil liability applied to private entities.