RESPONSABILIDADE CIVIL DO ESTADO E DO AGENTE PÚBLICO: pluralidade do polo passivo e a teoria da dupla garantia

Abstract

The subject matter of this article deals with different interpretations conferred to the art. 37, §6º of the Federal Constitution 1988. The public entity responsibility is expressed in the constitutional text, being unquestionable the objective responsibility of the State for damages caused by its public officials, in the exercise of their functions, the third parties, and the right of recourse of Public Administration against the responsible for the damage. However, there is a debate whether it is possible for the citizen, injured by the practice of an administrative act of the State, to propose an action for compensation directly against the public official who attributes to be the cause of the damage. The Superior Court of Justice defends this possibility, while the Federal Supreme Court embraces the dual guarantee theory in which a passive illegitimacy of the public official is defended. This article aims to analyze these interpretations, investigating whether the position adopted by the Federal Supreme Court was exceeded and contributing to an end to the legal uncertainty frame created by this impasse. As an explanation about the responsibility of the State and the public official nowadays, going through a rapid assessment of its changes throughout history, as well as the critical analyses of the arguments of the advocates of each placement, it was possible to conclude that our constitutional system migrated from a joint liability between the State and public official to a regressive liability of the official before the Administration. In conclusion, it was verified that the state official cannot be directly defendant by the civilian acts deriving from its activity.