The inefficiency of the current model of civil liability of the State in Brazil and the necessity to prevent damages

Abstract

This articles analyzes the current model of state civil liability adopted in Brazil, initially stressing three aspects that demonstrate its inefficiency: (i) the financial limitations of the State and the argument of the “reserve of the possibilities”; (ii) the system of “precatórios” in Brazil, which makes practically impossible to adequately satisfy the rights recognized to citizens in face of the Public Administration in lawsuits; (iii) the difficulty of compensating uncountable damages caused to fundamental rights. Although traditional doctrine has always considered damage as an essential element of the State's civil liability institute, it is argued that, following what has already been done under Civil Law and Environmental Law, this matter must be reviewed at that point in order to establish preventive ways of State civil liability. Finally, it is understood the need to apply, in the Brazilian Administrative Law, the legal injunctions described in art. 497, sole paragraph, of the Code of Civil Procedure.