O Que É Teoria da Culpa Administrativa?

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TEORIA DO RISCO ADMINISTRATIVO – responsabilidade objetiva do Estado. POR ATOS COMISSIVOS.  

TEORIA DA CULPA ADMINISTRATIVA – responsabilidade subjetiva do Estado. POR ATOS OMISSIVOS- ou seja, o particular tem que provar a omissão do Estado! A teoria da culpa administrativa é também conhecida como teoria da culpa anônima, porque exige demonstração de falha na atuação da administração pública, e não de culpa do agente.

TEORIA DO RISCO INTEGRAL – o Estado vai arcar SEMPRE. Não existe excludente aqui. De acordo com a teoria do risco integral, são suficientes a existência de um evento danoso e do nexo de causalidade entre a conduta administrativa e o dano para que seja obrigatória a indenização por parte do Estado, afastada a possibilidade de ser invocada alguma excludente da responsabilidade.

A doutrina traz três casos: 

1. Danos nucleares;

2. Danos ambientais;

3. Danos de guerra. 

QUESTÃO ERRADA: A responsabilidade objetiva do Estado por danos causados a terceiros tem sustentação na teoria da culpa administrativa.

Não é verdade. A responsabilidade objetiva do Estado por danos causados a terceiros tem sustentação na teoria do risco administrativo.  

Na teoria do acidente administrativo ou culpa administrativa, também chamada teoria da “faute du service”, a obrigação de indenizar passou a centrar-se na “culpa do serviço”.

A teoria da “faute du service” é uma criação jurisprudencial do Conselho de Estado Francês e, por meio dela, se abandona a distinção entre atos de gestão e atos de império e a perquirição da culpa do agente, para se indagar a culpa estatal. Ou seja, a culpa pessoal, individual do agente é substituída, na falta do serviço, pela culpa do próprio Estado, pela “culpa administrativa”, peculiar do serviço público, na maioria das vezes “anônima”.

Assim, ainda quando evidenciada a culpa de agente identificado como autor do ato lesivo, esta culpa (pessoal) é considerada como consequência da falta do serviço, que deveria funcionar exemplarmente e não foi capaz. Essa falta, então, é capaz de gerar para o Estado a obrigação de indenizar.

QUESTÃO CERTA: Ocorre a culpa do serviço (faute du service) quando o serviço público não funcionou (omissão), sua prestação se deu de maneira atrasada ou apresentou mau funcionamento. Poderá se configurar quando a concessionária de serviço público de transporte aéreo cancela voo sem prévia comunicação e sem qualquer motivação.

QUESTÃO ERRADA: De acordo com a teoria da culpa do serviço, a responsabilidade do Estado depende da demonstração de culpa do agente público, aspecto esse que a distingue da teoria do risco administrativo.

Negativo. Da demonstração da culpa do Estado.

QUESTÃO ERRADA: A responsabilidade civil do Estado por ato comissivo é subjetiva e baseada na teoria do risco administrativo, devendo o particular, que foi a vítima, comprovar a culpa ou o dolo do agente público.

QUESTÃO CERTA: A teoria da culpa do serviço surge sob o viés publicista, deixando de lado a culpa individual do funcionário para impor a responsabilidade da Administração quando o serviço público não funcionou, funcionou atrasado ou funcionou mal.


A teoria da culpa administrativa é também chamada de culpa do serviço ou culpa anônima. Para esta teoria, a culpa é do serviço e não do agente, por isso que a responsabilidade do Estado independe da culpa subjetiva do agente. A culpa administrativa se aplica em três situações, quais sejam: quando o serviço não existiu ou não funcionou, quando deveria funcionar; quando o serviço funcionou mal ou atrasou.

Nesta teoria, não se presume culpa da administração, devendo o particular comprovar que o serviço não existiu, ou não funcionou, ou funcionou mal ou atrasou.

Segundo Di Pietro (2018), as teorias sobre o tema da responsabilidade civil compreendem:

1. Teoria da irresponsabilidade;

2. Teorias Civilistas que se subdivide em duas:

2.1 Teoria dos atos de impérios e de gestão;

Na teoria da responsabilidade com culpa (ou doutrina civilista da culpa), os atos de império, praticados segundo regime jurídico de direito público, eram postos a salvo de qualquer responsabilização, que somente era passível de recair sobre o Estado na hipótese dos chamados atos de gestão.

Segundo essa teoria, o Estado poderia responder apenas pelos prejuízos decorrentes de seus ATOS DE GESTÃO, que seriam aqueles desprovidos de supremacia estatal, praticados pelos seus agentes para a conservação e desenvolvimento do patrimônio público e para a gestão dos seus serviços; o Estado, contudo, permanecia não respondendo pelos atos de império, que seriam aqueles praticados com supremacia, de forma coercitiva e unilateral.

2.2 Teoria da culpa civil ou da responsabilidade subjetiva;

Essa teoria civilista vigorou no Brasil desde o Império até a Constituição de 1946.

3. Teorias Publicistas: passou a vigorar a partir de 1946 e que se divide em duas também:

3.1 Teoria da culpa administrativa ou culpa do serviço público: a responsabilidade Civil do Estado só ocorre pela falta do serviço.

Possui três formas possíveis:

3.1.1- inexistência do serviço;

3.1.2- mau funcionamento do serviço ou

3.1.3-  retardamento do serviço;

3.2 Teoria do risco integral ou administrativa ou teoria da RESPONSABILIDADE OBJETIVA: A atuação estatal que cause dano ao particular faz nascer para a Administração Pública o dever de indenizar, DESDE QUE PROVADO O NEXO e o DANO. Divide-se em:

3.2.1- Teoria do risco administrativo: responsabilidade OBJETIVA + que admitem excludentes (a) culpa exclusiva da vítima, (b) força maior/caso fortuito; (c) culpa de terceiro.

3.2.2- Teoria do risco INTEGRAL: responsabilidade OBJETIVA + que NÃO admite excludentes: dano nuclear e dano ambiental (no caso de responsabilidade civil)

RISCO INTEGRAL

1- dano ambiental

2- dano nuclear

3- atentado terrorista em aeronave brasileira, inclusive privada.

ATENÇÃO: Foi a partir da promulgação da Carta de 1946 que se passou a adotar a teoria da responsabilidade objetiva, mantida pelas Constituições de 1967, 1969 e 1988.

No âmbito penal e no âmbito das infrações administrativas, a responsabilidade ambiental é na modalidade SUBJETIVA segundo STJ.

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