THE LIABILITY OF PUBLIC ENTITIES: Scope of liability.
By Andrew Chang Guillermo Hernández (*)
I. Introduction.
In a society evolving risks of harm are increasingly high, and the sources of production of these damages as well as agents which may impose liability has increased, there is talk now of a liability contract, tort, pre-contractual labor, etc. There is also talk that subjects generating these damages have also been expanding, since not only the individual but also the law may cause some damage, but within the latter can include public entities as representing the State made a harm-producing activity are obliged to repair it. This production of damage by a public body, obviously the performance of duties by its officers, not only deserves a special treatment in their assumptions of attribution of responsibility for compensation concepts but most particularly in terms the hobble make the payment as a possible sentence of payment of compensation by the state, although the latter is not a proper subject of the damage system, deserves special emphasis because it is no use having the recognition of a right if your enjoyment becomes a utopia.
In this sense we can now consider the state a subject liable to civil liability, not only because the State is liable to administrative responsibility for their actions, therefore we must understand that civil and administrative liability are two different institutions, and administrative responsibility creates a reaction of the same entity that results in the sanctioning power of the administration can reflected in a fine, warning or suspension, while the liability attributable to search for any damage caused obligation to repair the damage caused by his conduct.
why we believe important to review the existing rules on the liability of public entities as well as structuring a system that allows the state to liability but an effective and fair, but that is often pursued by the law of torts .
II. Administrative acts subject to compensation.
Clearly our legislation provides for the possibility that the administration produced damage to be incurred by managed, which in turn are entitled to compensation justipreciaria, as is the case of expropriation however, when these common cases and to some extent clear in its application, because here there is a legal duty to support certain acts of management that benefit the public interest we will address those cases in which the administration cause harm to others without them are required to support them and also when these damages are producing state neglect or inertia.
Obviously we focus here on the conduct by government or administrative acts, and even the omissions that generate harm to people, not to the political or judicial acts of the State, since the former generally give rise to liability of that nature and the latter can be repaired in accordance with Law 24973 - Law of judicial errors, or by the process of civil liability of judges, contained in the Code of Civil Procedure.
An additional premise is to say that we believe the responsible State, as is any individual, to acts that produce harmful ie act or omission, as may be the inefficient delivery of public services, delay in the issuance of an administrative act or even by issuing the same, etc, however deserves special treatment regarding the responsibility assigned to an individual or even a legal person, obviously by their special status as public entity.
III. The liability of the State.
Liability generically means the obligation of the subject, causing some damage, to compensate it. Thus the damage in its broadest meaning, is the fundamental factor and civil liability. To this account that no harm no liability which does not imply the absence of a criminal or administrative liability, according to the specific case
also
Disclaimer referring to the civil aspect is fundamental to compensate the damage caused to life in relation to individuals, whether it be damage resulting from a breach of a voluntary obligation, primarily contractual, or in the case of damage as a result of behavior, without there being any link between the subjects obligational order.
professor at the University of Castilla - La Mancha Don Fernando Campos Reglero on civil responsibility tells us "... that when an individual breaches a duty or obligation or causes damage is liable if the failure or damage attributable to him, saying the responsibility rests on a particular title complaint. This means that the birth of any system of liability is found in breach of an obligation or when it is done late or defective, especially in previously established relationships (law, contracts, quasi-contracts), which also carries with it the penalty the breach.
This responsibility generally attributed to an individual can also be attributed to a state entity, that according to the current majority now supporting the State liability whether in contract or tort, it also expresses our legislation as required under Article 238 ° of Law 27444, General Administrative Procedure Act, as amended by Leg. "
The recognition of the liability of public administration today is not disputed, and the teacher CASTRO POZO, says It is clear that public entities found in the possibility of causing damage situations and interests of third parties rights, so they have to assume the same responsibilities of any particular action as if it damages your legal situation in the run
However, this was not always well, at the dawn of our civil law, refused this responsibility, so we have during the term of the Civil Code of 1852 prevailed the belief that the State can not in principle be required liability because their actions are protected by immunity. This trend suffered some variation from the case after the 1936 Code, the Supreme enforceable no longer viewed the state as civilly irresponsible, but rather trying to determine the scope of their responsibility. In this context then gone case law recognizes the state as civilly liable for damage caused intentionally by arbitrary acts, negligent acts by faulty maintenance of public services and even for damage committed in their activity Private. The development of jurisprudence and some foreign and national doctrinal currents were that the draft civil code drafted by the Commission for review and revision of the Civil Code of 1936, attributed in Article 2041, the State liability for failure of public services or the Defective maintenance of state-owned producer of damages, among other cases but this proposal never even discussed openly because it was deleted from the project and its proponent Dr. Fernando de Trazenieg, in this regard expresses . .. Unfortunately this proposed rule was not subject to comment during the discussion on the project. And the Review Committee decided to simply abolish the grounds that the State's responsibility was contained in the general principles established by Articles 1969 and 1970 and it was better not to draw attention to this point with an express provision that the State could be beset by trials liability "
Already, within the scope of our current civil code, we find State liability in Articles 1969, 1970, 1979, 1980 and 1981, attributing this to any legal entity, then remember that the encoders 1984 no denying the liability of the State, but tried to overlap of generally in articles 1969 and 1970.
IV. Regulatory basis of liability of public administration.
The evolution that has experienced the responsibility of the State, has received today an almost unanimous recognition in law, meaning that any entity, public or private producer of damage to third parties is obligated to repair. However, because this recognition has been resisted we recall some ideas that made it possible.
A first fundamental idea is the finding that the liability of the State, is an essential part of the rule of law. The English professor Luis COSCOLLUELA on the subject express The foundation of the demand for accountability to the public, is now obvious, by application, ultimately the consequences of the rule of law that requires the submission of public administration with the legal system, like any other subject of law "
This parity between government and individuals is, we believe, the fundamental basis for accountability for the damage caused by the State itself obviously represented by the very extensive state apparatus, known as Public Administration. This status was the evolution of recognition of the state, represented by the various entities public, as subjects of rights and obligations. As
detailing the doctrine of state sovereign immunity in contract or tort liability is on the wane in the world, so that our doctrine and legislation also deny almost overwhelmingly.
not only believe that the State must materially for the damage that generates, based on univocal principle of equality between citizens and state, but also should cover such liability of legal standards applicable to the subject.
First we see that in our civil code, as has been the willingness of the encoders 1984, the allocation responsibility to state property is treated like any particular legal entity and is immersed in the assumptions contained in articles 1969 ° and 1970 °, to name a few rules, provisions covering the tort of guilt and responsibility for utilization of a risky or dangerous, or by performing a risky or dangerous. These rules do
liability to the State, to the production of any damage as at any other member of society, it is already known that these requirements rely on the general obligation of 'Lemine laedere', ie not causing damage a nadie”, obligación que no es ajena al Estado, empero estos dos criterios de atribución de responsabilidad, el de culpa y el objetivo, que entendemos son aplicados a determinados casos concretos, lo que obviamente implica un régimen distinto en cuanto a los diferentes criterios de atribución de responsabilidad subjetivo u objetivo, que implica una particular forma de determinación de la carga probatoria, etc. Entre los criterios de atribución de responsabilidad contenidos en los precitados artículos 1969 y 1970, le corresponde a la administración, a nuestro entender, el contenido en el segundo, es decir una responsabilidad objetiva. Nos explicamos porqué.
En primer término we found a negative position, that is fault-ruling administration. This criterion of accountability is closely related to the commission of an unlawful act. So the blame, according to the doctrine and after laws predominantly French Code of 1804, is one objective guilt, understood by Professor Juan Espinoza as follows ... Is guilty for the violation of the laws, the fault is in re ipsa, ie the order parameter determines the behavior and if the agent does not comply, it is responsible ... is also called fault in the abstract, which is opposed to the fault in concrete or subjective "below, quoting TRIMARCHI, Dr. Espinoza Espinoza, expressed traditional French doctrine warns that assessing blame in particular to examine the spiritual state of the agent, find out if his conscience reproaches him something. Appreciate the fault in the abstract is to ask, without going into such inquiry, which would have another person in the same circumstances, proceed by comparison with the behavior of an abstract type "
Obviously, as will be explained below, is also attributable the State liable for damages under Articles 1979, 1980 and 1981 of the Civil Code.
On the other hand, our country has chosen to recognize the liability of the State within a rule of public law, such as the Administrative Procedure Act, as in Article 238 ° of the above standard, although recognizing defects and omissions, this type of responsibility, which will be discussed later.
V. Liability as a criterion for allocating liability
Public Administration at this stage of our work and doctrinal development that has received the matter is unquestionable attribution of liability to the public in the production of damage to third however it is necessary to know the dogmatic support of this responsibility, it is worth asking why the State is liable for conduct, sometimes careless of their workers?, "This responsibility is a fault or intent of the direct cause harm official or makes attributable to indirect causes administration? Or why the liability of the State should be objective?
An initial premise is, first, the special powers he holds within government that lets you crop, recognize, limit or suspend rights, the ability to produce with its proceedings, legal effect within the legal sphere los particulares y por el otro la gama obligaciones que tiene el Estado para con los ciudadanos, enmarcados dentro de la Carta fundamental como en las demás leyes que así lo establecen, lo cual implica la prestación de determinados servicios públicos que naturalmente conlleva a la responsabilidad por conductas omisivas y es fundamentalmente esta última parte la que merece un análisis especial, a efectos de determinar el alcance de la responsabilidad civil de Estado, en temas sumamente sensibles no solo por su relevancia económica sino social y política.
Conforme lo anota Fernando de Trazegnies, la responsabilidad del Estado la podemos sustentar en los artículos 1969, 1970, 1979, 1980, 1981, etc, pues these rules contain the following provision for who willfully or negligently causes harm to another ...", He who through either risky or danger, or the exercise of a risky or dangerous cause harm to another ... " The owner of an animal or one that includes your care, you must repair the damage it causes ...", a building owner is responsible for the damage that results in his downfall ...", One who has another person under his command is liable for damage caused by the latter ...", respectively and obviously the state can, as a legal entity, could cause harm, manslaughter by act or by a either risky or dangerous to own a building or an animal., etc. It is important
strict liability conferred by Article 1981 of the Civil Code, those who have the responsibility to others, and Article 1981 ° of the civil standard, frames his responsibility as head of the actions taken by staff to service, including, obviously a Public not yet found a special identification between the state and the activity and the damaging event, as a natural or legal person is also dependent, more so it is logical to cause harm to another by an act manslaughter, for the realization a risky or dangerous activity or the exercise of a risky or dangerous, such as generic activities are natural or legal persons, but not as a common feature of the State and can even add that the state is not one that causes damage but administrative apparatus in its representation perform certain activities or that the state does not perform or manage an activity or risky or dangerous, but its employees . Therefore protected by that Article 1981 of the Civil Code will not only connote a simple variation of the applicable standard, but also leads to a variation of the criterion of attribution of responsibility to the Institutions Public and switch between them due to subjective or an objective, content in that Article 1981 of the Civil Code.
In this regard that Article 1981 of the Civil Code shows some drawbacks, such as the attribution of vicarious liability against the compensation of damage, as this implies, in the case of civil liability of a public entity, both the subordinate llaméese worker or employee, in our case and the author indirectly public body can take equally without priority the economic consequences of damage. This does not happen in a case of damage caused by a public entity, through a public official, of course, in the exercise of his office or performing a service, because here in the Bank responds first and only after this does the author directly or officer, by way of repetition, but and not on behalf of the victim but of the custom entity to assume the payment of compensation in the case, ie the administrative responsibility of the state is not a joint but a vicarious or direct.
is scored as soon strengthened by amending Article 238 made of Law 27444, General Administrative Procedure Act, "Legislative Decree 1029, which gives a less disguised responsibility objective criterion for attribution of liability to the State, direct and immediate damage caused by the acts of government or public services directly provided by them. Thus we have the current Article 238 paragraph 238.1 of Law No. 27444, states Without prejudice to the responsibility under common law and special laws, the entities are materially accountable to citizens for any direct or immediate caused by the acts of government or public services directly provided by those "
On this position, Morón Urbina, commenting on that article 238 of Law 27444, even before its amendment, referring to the liability of the Administration, expressed The characteristic features of the liability of the administration are the following direct responsibility tort apart from any legal relationship could be established between the two , objective is an objective mechanism to repair damage and no specific penalty for inappropriate behavior, so competition is independent of fault, negligence or willful misconduct of its officers and judicial determination quantify and imposition the award of damages corresponds to the judicial authorities
The first precept of State responsibility for acts of his subordinates, is contained clear, as mentioned above, Law 27 444, Administrative Procedure Act, "the general rule that regulates responsibility of the administrative entities. Regulatory framework that we believe is inadequate, because despite the great dilemma that creates strict liability attributable to damage to generate public entities, only one article devoted to it, leaving a vacuum in some aspects to be regulated.
regard to the direct or indirect responsibility is attributed to the administration, we believe that as existing national legislation is a direct attribution shy objective, since it requires the special rule applicable Article 238 of Law 27444 its liability is direct and objective, but invites us to a creative interpretation together with the rules the Civil Code.
To attribute this responsibility under Article 238 of Law No. 27444, we believe that is in accordance with the theory of the body, because it indicates that management is responsible for direct and immediate damage caused by their acts, because of unsustainable in this theory, there would be a state responsibility. In this sense we should not forget that either through the assumption of the theory of the body, via Article 238 of Law 27444 or if we assume the theory of damage caused by the clerk, via Article 1981 of the Civil Code, our legislation attaches strict liability to acts harmful entities public. Likewise, we add that despite being at odds with the wording of Article 238 of Law 27444, not being emphatic, is the standard that supports the legal nature of the liability of the State, this is a direct and immediate also due to its further development and no specific rule prohibiting Law 27444, we can draw on the rules contained in the Civil Code.
Elsewhere already taken this step, attributing direct responsibility and objectively harmful acts of the state, supporting this position in the theory of the body and said Dromi ... direct responsibility is incumbent upon the State for the actions of their bodies "and also the same author adds ... State responsibility is indistinct and not merely a subsidiary of the official. It is the State itself should seek to establish the liability of the official and the injured party not to carry the weight of this duty, it has had no impact on the designation of official "
It is also important to remember that our system of legislation, recognizes the strict liability approach of accounting or attribution of responsibility for specific issues, primarily on merit to the activity or the risk occurred and has to Article 284 of Law General Environmental and does it, just as we have Article 29 of Law 27,181, Transportation Law, which states: "The civil liability arising from traffic accidents caused by motor vehicles is objective, in accordance with the provisions Civil Code ", also in the same field of Transport we have the National Regulations Transit, approved by Supreme Decree N º 033-2001-MTC, clearly states: "The responsibility for damage or injury caused to others by the poor condition of roads, is one of the authorities responsible for their maintenance and conservation, except that the bad cases are the result of unforeseen circumstances.
In these cases we see that the allocation of such special responsibility to respond to fundamentals, such as the damage generated and the risk or danger of the activity, respectively, however the spirit is always: the particular case. We also have
, assumptions of liability contained in the General Environmental Law, where is this rule requires repair and objectively answer for environmental damage, defined as any injury or damage to the right or interest that human beings, as neighbors or community, to be not altered in a manner detrimental their natural habitat, on the premise that behavior is performed is at risk, ie the primary basis for assigning liability is the activity itself and not the person or entity that produces
Indeed, in front of it damages, the law has been imposed as a factor of accountability in order and inasmuch as environmental damage can be produced by a private or a public entity act or omission also applies strict liability to the latter, although this and not for being a public entity itself but by the activity or the type of damage, which is important when considering the allocation strict liability actions harmful to the state, since the environmental damage is attributed only this kind of responsibility does not by its own public entity status, but by the activity performed. However, we take this example of environmental damage, we believe that the basis for allocation factor attributing this kind of responsibility, it is interesting, to support our position, For here is based on the risk created by extra activities. But this allows us to appreciate that it is valid to attribute liability for special or extraordinary circumstances and we believe that the activities performed by various public bodies in relation to citizens and that as a direct result of providing a service or development the very functions of the entity, it could be described as special, also subject to a method of allocating liability.
We believe that the State, represented by the Civil Service increasingly immersed in our private relationships or our life in society through health inspections, environmental and other , the tax burden is large and hence the provision of services by the State increases, and not only as a correlative to pay our taxes but the ramifications of their participation in relation to administered, which, in some cases, places the state apparatus in a certain position of dominance or monopoly, which warrants a strict liability state.
On the liability of the State, the Administrative Argentine Roberto Dromi said cases of state responsibility for damages incurred legitimate administrative activity are numerous, and among them is revocation for reasons of opportunity, merit or convenience, when it was appropriate and provided that constitutional guarantees are observed the responsibility of the State is strict, in complete disregard of the concept of guilt, with its basis the principle of legal justice or general demand equality before public burdens ... "
Criticism strong recognition of the liability of the State, focuses on the financial risk to the state apparatus is subjected, however we believe that a public entity, against damage committed, does not have to be treated gentle, then remember that the highest state order is the human person and protection their personal rights and property must be guaranteed in the first instance by the State itself, by it is inconceivable that if a particular point damaged, compensation but if the damaged state, it does not. It also has been the State itself imposes on individuals hiring a statutory accident insurance SOAT Transit, as the same way, if you think that increased payment amounts, product liability State, cause imbalance to the treasury, we wish also that each public entity purchases insurance, as it is done in countries like Spain and others.
also believe that under this premise, authorities must assume their responsibility as any other member of society when making a decision harmful to the administrator and want the public administration can monitor this activity, abuse and damage caused by public entities will decrease significantly.
In a preliminary reading of Article 238 of Law 27444, the essential elements for the existence of a liability of the State, are the direct and immediate harm and the act of the administration.
In this regard, as stated above, verified compliance with both requirements, there is no possibility of release of liability indirectly to the author, who may not invoke the absence of guilt. In the traditional classical doctrine of liability, it was understood that the vicarious liability of principal for the acts of the subordinate was based on guilt in the election (culpa in eligendo), which many times could get rid of indirect copyright liability demonstrating their lack of guilt. However, under Article 238 of Law 27444 or fewer according to the rules of the Civil Code now remember that the administrative rule cited above does not preclude enforcement of the Civil Code not be the argument of defense of lack of guilt , since this special case indirect liability even if it is to base such liability under Article 1981 of the Civil Code, which we believe must be done not only subsidiary is based on the concept of fault in the election, but a target allocation factor, called "guarantee" that ignores entirely the fault.
Finally, we are the people who'll make the state more responsible, so we must understand that anyone, let alone the state, can cause damage without repair, so in the event of damage caused by any act of public entity, we are entitled to demand payment of compensation.
VI. Epilogue.
The State liability is an objective of Article 238 of Law 27444 and the entity can only be released from liability upon proof of unforeseeable circumstances or force majeure, triggering event a third party or the victim managed.
also not forget that Article 238 of Law 27444 does not limit the liability provisions in common law civil code, so everything not covered by the administrative law may be governed by civil law.
believe that in order that national courts begin to recognize the state liability for their acts or omissions in the exercise of its legally assigned duties, strict liability should be emphasized and these assumptions, within the rule of law in which the citizen and the state have the same harmful consequences for their actions.
Accordingly, we believe that the objective attribution of responsibility to state property must be established clearly and directly, in order to protect the injured, which does not mean that the State always respond, because the current Law 27444, establishes certain assumptions that allow free from liability to the administration.
In conclusion we believe that this way of attributing responsibility to state property should not be lethargic administration acts, for fear of a lawsuit for damages, since what is looking for an efficient public administration, which the State is responsible for their actions, as well as expressed by the English teacher, Luis Martin Rebollo, that the administration acted, but acted quickly, securely and efficiently, and if harm and especially doing it wrong or late or failure to act expressly and by guidelines set is required to, pay for their bad performance, for failing "
* Private University Teaching Alas Peruanas - home Ica , Post-Graduate at the University of Castilla - La Mancha (Toledo - Spain), legal consultant of the Regional Energy Mines and the Regional Government of Ica.
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