THE IMPACT OF THE THEORY OF PUNITIVE DAMAGES ON THE STATE'S OMISSION LIABILITY (Atena Editora)

Abstract

Overcoming the classic division between public law and private law, especially through the conception of a civil-constitutional law, aligned with the systematic interpretation of the legal system, makes up the theoretical basis for the inclusion of the punitive-pedagogical purpose, also understood as a social, preventive purpose or dissuasive within the State's institute of non-contractual omissive liability. Born in countries of the common law system, the doctrine of punitive damages exasperates the traditionalism of restorative, “compensatory” and satisfactory functions to include a social purpose to extracontractual civil liability. The sedimentary basis of incidence of the Theory of the Value of Discouragement in the State's omissive responsibility is linked to the legal and social relevance of the context of the injury in opposition to the criticisms concerning the absence of legal provision and the inexistence of minimum and maximum parameters for the increase of the indemnity quantum, in addition to the criticisms arising from the administrative doctrine, highlighting the arguments related to the non-observance of the postulate of the supremacy of the public interest over the private and the transfer of increased responsibility to the community itself. The adoption of the Discouragement Value Theory as an instrument of reprimand for situations of ineffectiveness, absence or delay in the provision of public services and the realization of fundamental rights faces the criticism of the imputation of the figure of the State as a universal indemnifier. However, the relevance, the immediate applicability and the binding nature of the fundamental rights on the State's behavior allow the theoretical approach of the application of the theory of exemplary damages as an instrument of censorship to the illicit materialized in an omissive way in the scope of the State's non-contractual liability.