GADELHA, E. N. S.; GADELHA, Eduardo Nóbrega de Sousa.
Abstract:
The Constitution of the Federative Republic of Brazil of 1988, the fundamental law of
the country, reflects the primacy of the Democratic State of Law, which, in addition to
other guarantees, has the power to assure citizens of the effective protection of
justice and security, both in interpersonal relations and in Relations between State
and citizen. In this context, the State's strict liability under article 37, paragraph 6,
based on the theory of administrative risk, was acclaimed by imposing on the State
the obligation to respond to the damage caused by harmful activities that public
agents, as such, in carrying out the activities and functions of the State, may cause
third parties. Thus far, it was developed the research presented at this academic
work aiming to analyze the State civil responsibility for judicial acts. The methodology
adopted was a bibliographical and desk research. The main results show that, when
dealing with the harmful acts practiced by the Judiciary in the performance of its
jurisdictional activities, despite the majority of the doctrine defending increasingly the
possibility of civil responsibility of the State, nevertheless, the majority jurisprudence
resists deeply for the defense of the irresponsibility of the State, only accepting the
duty to indemnify, in an exceptional manner, in the cases expressly provided for in
art. 5, LXXV, CF / 88 and art. 630, CPP. When it is known that the duty of reparation
of the State for damages caused by jurisdictional acts, is regulated in the national
legal system in several legal texts, as well as in the Charter of 1988, in the ordinary
and complementary legislation. In conclusion, given the fragile arguments presented
by the jurisprudence, it is maintained, after the analysis that is the duty of the State to
compensate the individual facing the damages resulting from harmful judicial activity,
the exception being the subjective responsibility of the public agent (Judge or judicial
public server), which will be verified by the way of regressive law..
