La dimensión preventiva de la responsabilidad civil en Colombia: hacia un intento de fundamentación a partir de una teoría del derecho basada en conceptos jurídicos fundamentales y la teoría sociológica del riesgo

Abstract

Colombia is part of the risk society. In this context, civil liability, in its standard version based on the elements of wrongful act, causation and damage, operates with the essential function of repairing damages. This version of civil liability has received risk as a factor for the attribution of sentences and compensation through the jurisprudence of the high courts and, in addition, it is being doctrinally studied from a preventive function consistent, broadly speaking, in the avoidance of damages by way of orders of cessation of conduct and social intimidation. All of the above, in this thesis, is analyzed from the general theory of law based on fundamental legal concepts and the sociological theory of risk, in order to propose a preventive dimension of civil liability from a perspective different from that offered by the current state of the art, in which the mental fault is not considered functional and risk should not be a factor of attribution of civil liability due to its sociological characteristics. In this sense, this research work offers a theoretical proposal in which both prevention and risk—as fundamental legal concepts—serve as cross-cutting assumptions so that civil liability works from a normative fault consisting of the transgression of legal regulations and extra-legal protocols. In order to achieve this, we started from a constructivist ontological paradigm and a hermeneutical epistemological paradigm, supported by a grounded theory methodological design that was executed through a documentary analysis technique and through conversations with experts.