A responsabilidade civil do Estado em face da atividade administrativa de fomento no domínio social e a do agente fomentado à luz da Constituição Federal de 1.988

• Ano de defesa: 2009
• Autor(a) principal: Higa, Alberto Shinji
• Orientador(a): Rocha, Silvio Luis Ferreira da
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: BR
• Palavras-chave em Português: Constituição Federal de 1988; Domínio social; Atividade administrativa de fomento; Terceiro setor; Brasil > [Constituicao (1988)]; Responsabilidade do Estado > Brasil; Intervencao (Governo Federal) > Brasil; Associacoes sem fins lucrativos > Brasil
• Palavras-chave em Inglês: Federal Constitution of 1988; Intervention; Social domain; Administrative activity of foment; Third sector; Civil liability of the State
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/8504

This present work has the purpose of proposing reflections for the outlining of the public foment in the social domain and of the respective civil liability of the State and of the parastate entities in this sphere, in light of the Constitution of the Republic of 1988. The choice of the theme could be justified by the following reasons: (i) the contemplation of the fertile field by the Magna Carta for the development of said administrative function; (ii) the issuing in the infraconstitutional sphere of sparse laws that, as a pretext of the promotion of this need, extrapolate the landmarks conceived in the Greater Law; (iii) the ommission of these legal diplomas related to the civil liability of the State and of the beneficiary entities, whether arising from the juridical relationship between this, fomenting agent, and those, fomented agents, whether arising from the bond between the latter and the third party; (iv) the lacuna in the field of juridical science, as that occurring in the legislative sphere, seeing the attention given by the scientists of the constitutional law to said theme is still shy. To reach the established objectives, the constitutional contours of the administrative activity of foment in the social domain were initially traced. It was sought to identify its juridical regime and its area of incidence. In possession of all these elements, it was then passed on to the study of the civil liability of the State and of the fomented entity. At the end of the research, it was noticed that the State answers for the damages caused to the fomented agents due to its comissive or omissive acts, in the exercise of the promotional administrative function, in objective or subjective form, respectively. Likewise, it is concluded that the State, as a rule, does not answer for the damages caused by the fomented agents to third parties, in the exercise of the activities which are the object of the foment, except in cases of autonomous social services, of the social organizations that substitute the Public Authority in the performance of public service under its charge or are benefitted with the granting of goods and public servants, and in the cases of state omission in inspecting the activities developed by the fomented agents, as long as observed, in this case, the theory of the direct and immediate damage (art. 403 of the CC) and with presence of the premises related to the subjective civil liability, by the theory of the guilt of the service. Finally, in relation to the fomented agents, it is concluded that, as a rule, the subjective civil liability foreseen in art. 927, headline c/c art. 186 of the Civil Code, is applied in the hypothesis of extracontractual liability or in art. 389 of the Civil Code, in case of contractual liability, whether in relation to the State, whether in relation to the third party that makes use of the service rendered by it. The incidence of the objective liability is an exception and is observed only in two distinct hypotheses: (i) in the terms of sole paragraph of art. 927 of the Civil Code, which authorizes the establishment of the objective liability in cases foreseen in law, as in Law No. 8.078/90; and (ii) in cases of social organizations established with the purpose of substituting the State in relation to its duty of rendering public services, in the terms of the Magna Carta, and of deceiving the juridical administrative regime that, strictly, such activities are submitted to, opposing the limits of complementary actuation of the private in the social domain