State patrimonial liability Regime in Colombia: The juridical title of imputation

Abstract

With the issue of the 1991 Constitution, which produced substantially important changes in terms of the State Theory, Colombia shifted from a State based on the rule of law to a Social State. This shift brought about the introduction of a more social Constitution, in which the human being, as the State’s fundamental pillar, became the goal and purpose of the State’s activities. Consequently, a series of precepts and constitutional values, as well as fundamental, collective, environmental, workers and children rights, among others, were established. As can be evidenced, the 1991 Constitution generated significant social changes by placing Men over Law and Substantial Law over procedures. Going beyond the original thesis, under which the State should not respond to the damages it caused by service rendering or in the development of its activities, and positively analyzing the different theories that emerged from the French doctrine, which pointed out that the State was also responsible for the damages it might cause in the development or completion of its public regimesperformance, it can be said that the Colombian State was not far from this situation.

For this reason, it was established, in the Article 90 of the 1991 Constitution, the State extra contractual responsibility regime. The initial term ILLEGAL DAMAGE came about to be too much generic and ambiguous, especially considering that almost any State act causing damage was caused was considered illegal, so the State was obliged to patrimonially respond for any caused damage. This thesis was later reevaluated.

The objectives of this project are, firstly, to clarify each one of the current thesis that exist in Colombia about the so-called State extra contractual responsibility, which is constitutionally supported in the Article 90; and secondly, to point out how although the conception of Illegal Damage exists, it does not imply that the State’s responsibility has become objective, but that current theories were established even before the 1991 Constitution under the legal title of imputation