RESPONSABILIDADE CIVIL OBJETIVA DO ESTADO EM DANOS CAUSADOS POR ATOS OMISSIVOS: A INCOMPATIBILIDADE DO STATUS DE “SEGURADOR UNIVERSAL” QUE LHE É ATRIBUÍDO, À LUZ DO JULGAMENTO DO TEMA 366, DO SUPREMO TRIBUNAL FEDERAL

Abstract

The present study aims to analyse the (in)existence of an absolute character to the objective civil liability of the State, mainly in the cases which the damages have been caused by its omissive behaviour. For that, it is going to be necessary an analysis of the evolution in the doctrine regarding the subject, as well as exposing which theories were influential on the construction of the understanding about the matter in Brazil, also which were deemed the accepted ones in the end. It is also going to be analysed what is the stance our Courts and influential authors take on the matter, giving a special highlight on the stance the Supreme Court (Supremo Tribunal Federal, STF), and the Superior Tribunal de Justiça (STJ). Moreover, it is also going to be presented what are the impacts and consequences of the trial of the “Tema 366” (Theme 366) by the Supreme Court. Also, it will be analysed whether the States and Local Courts have been applying the Supreme Court’s instance on their trials regarding the subject as well. Towards the end, there will also be a short analysis on the economic consequences around the incorrect application of this matter by some Judges, and how it may bring harmful consequences not only to the matter presented, but potentially to all society. To make this study, it was used the exploratory-bibliographic method, with it also being a case study, regarding the trial of the “Tema 366”, by the Brazilian Supreme Court (Supremo Tribunal Federal).