El problema de la culpa en la responsabilidad patrimonial por acto administrativo. Análisis crítico de la jurisprudencia del Tribunal Supremo

Authors

  • Luis Medina Alcoz Universidad Complutense de Madrid

DOI:

https://doi.org/10.18042/cepc/rap.213.04

Abstract

This paper critically reviews how the Spanish Supreme Court’s case-law deals with liability based on fault in the field of formal administrative decisions. After addressing the problem of fault in general, it clarifies the precise meaning of the phrase «patrimonial liability concerning administrative decisions», describes the judge-made law in this regard and exposes its multiple inconsistencies. The debate on fault has to be more transparent, presented as a problem related to bases of liability, not as a question related to the unlawfulness of the damage. Fault should not operate as a bases of liability in cases of legitimate expectations or infringement of the rules on public procurement. For all other cases, there are several possible solutions. If fault has to function as a bases of liability, it should be considered in any case that the non-compliance with the law is normally indicative of it.

Published

2020-12-11

Issue

Section

DISCUSSIONS