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DRAFT law No. 56/X explanatory memorandum the XVII constitutional Government undertook to consecrate a new regime of extra-contractual civil liability of the public authorities, in the wake of initiatives previously taken and, for reasons that have been repeated, don't have a legal text. Indeed, in the VIII legislature, the XIV constitutional Government carried out the purpose of drawing up a diploma that regulate overall substance of non-contractual liability of the State and other public entities, for damages resulting from the exercise of legislative and political functions, and administrative court, for the first time in our legal order. For this purpose promoted the holding of a public participation process, within which were discussed the main issues that arise in this area, having been assembled in book the texts of interventions carried out. Several contributions to the Reformation were later presented with the Bar Association, which released a text, drafted by a Commission of distinguished experts, in which presented, in the form of pleading, his proposals on the matter. Thus, on 30 November 2001, the Parliament approved in General and with the favourable vote of all parties represented, the proposal of law No. 95/VIII, submitted by the Government in July 2001, on the regime of Extra-contractual Civil liability of the State. This Bill did not arrive, however, to be adopted at the specialty for the Assembly of the Republic, by virtue of the resignation of the Government, which resulted in the forfeiture of the said draft law and forced the resumption of a new legislative procedure. New term begins, a group of members of the parliamentary group of the Socialist party presented on 16 October 2002, a new draft law of Extracontractual Liability of the State (draft law No. 148/IX), which was based on the Proposal of law No. 95/VIII. This Project was also approved unanimously, in General, in November 2002. 2 in September 2003, the XV constitutional Government presented to Parliament the draft law No. 88/IX, which was also approved in General by the Assembly of the Republic. Similar to what happened in 2001 with the proposal of law No. 95/VIII, such proposals failed to be voted on, because of the resignation of the Government, which determined, once again, the expiry of the proposals, forcing the resumption of new legislative procedure. The Government is now again to Parliament a draft law that regulates the regime of extra-contractual civil liability of the State in the wake of the projects presented by the XIV constitutional Government and by members of the parliamentary group of the Socialist Party. The various contributions collected in the course of this long process were taken into account in the preparation of this draft law, with emphasis on the proposals contained in the text presented by the Bar Association, whose articulate was largely taken over, to the extent that seemed to be shared many recitals in which he relied and which, in this explanatory memorandum , so even if you subscribe. It can be said that it is correct the option of leaving for the redefinition of non-contractual liability regime of the State and other legal persons governed by public law, at least in the exercise of administrative function, the regime laid down in Decree-Law No. 48 051 and solutions that, over time, on lathe your were being thrust of the Portuguese case law. There have been considered useful to incorporate into law solutions, having come to be said in practice jurisprudence, the consecration will allow regulations to consolidate. That's what happens with some of the provisions included in the General provisions, as well as with some of the rules regarding responsibility for the exercise of administrative function-with emphasis on the consecration, with general scope of understanding, already assumed by the administrative case law, that the possible use of proper disposal procedure via a harmful act in itself , does not call into question the right to compensation, and may only be considered in the context of the instituto da fault of the victim. The new law seeks, however, giving, finally, the need, for a long time felt, to adapt the legal regime of extra-contractual civil liability of the public authorities to the requirements dictated by the Constitution of the Republic. This effect enhances the regime of responsibility for the exercise of administrative function, 3 extending the field of application of the system of joint and several liability to the domain of the conduct charged with serious misconduct; establishes, for the first time in Portugal, a general regime of responsibility for the exercise of the judicial function; and innovative arrangements with regard to responsibility for the exercise of policy and legislative functions. Not less is the option to establish, in the widest terms, the duty of the State and other legal persons governed by public law compensate all those who, for reasons of public interest, impose special charges or cause damage and abnormal without circumscribing the exercise regime of administrative function. It is, in any of these areas, to comply with the requirements of the rule of law, ensuring the proper supervision of who is wronged by unlawful actions of public authorities and, at the same time, promoting quality and accountability in the exercise of public powers. In the latter sense is part of the transformation of the right of return, when there is, a power of exercise linked. First of all, chooses, in this diploma, for maintaining the differentiation, in Portuguese law, has been established between administrative acts that give rise to a liability governed by public law provisions and administrative acts which give rise to a liability governed by private law provisions restricting the scope of the diploma to the definition of the public law regime of extra-contractual civil liability of the public authorities. It is considered, in fact, which are not qualitatively identical and therefore indiferenciáveis the conduct that the public authorities develop as if they were private entities and those that they have adopted in the exercise of public authority powers or, in any case, under the provisions and the principles of public law, institutivos of duty or special constraints, specifically administrative in nature, that do not apply to actions of private entities. And that, within that perspective, the reasons remain valid, historically, led him to associate with this distinction a differentiation of regimes, admitting that, when it comes to the exercise of public functions, the direct responsibility of the holder of the organ, official or agent and the right of return on it should only exist when there has been fraud or serious fault of your part. It is, in fact, recognize that the functional obligations of public officials can be vast and complex, which can lead to making a greater number of absences without serious fault, and to admit that the exposure of the agent, in such cases, the payment of compensation in an amount much higher than the proceeds that the function 4 provides you with can make the fear of being held liable for fault take inhibit in its initiatives , damaging the serenity and the independence of its courts. Thus opts for quoting the material scope of the acts covered by the liability regime in accordance with the criterion of substantive legal regime under which they were adopted. In a historic moment of recognized and growing uncertainty with regard to the delimitation of concepts such as "Public Administration" or even "public entities", not missing who them include legal persons who, having been created according to forms of institution governed by private law and working mainly under private law rules, are, however, detained by public authorities , manage public resources and pursue public interest purposes, there was also the purpose to avoid ambiguity as to the determination of the extent to which the present law applies to such entities, "public entities under private forms". For this reason if refers to the classic contrast between "legal persons governed by public law" and "legal persons of private law" to clarify that the responsibility of a few as the other just is governed by this legislation when the result of performances governed by provisions and specific principles of administrative law, according to the material criterion of demarcation that has already been exposed. Still with regard to the civil liability of the Administration, the main amendments are the already mentioned extending the rule of solidarity, in accordance with the Constitution, to the domain of the conduct charged with serious misconduct; the consecration of the legal liability of Directors for abnormal operation of its services; and the introduction of a system of presumption of guilt, in cases where the damage is caused by legal acts, which comprises administrative acts and acts of legislative content. With the introduction of this presumption of guilt, come, finally, the legislated framework of practice of our administrative courts, which — in keeping with the tradition established in the countries of southern Europe, particularly France, and the influence of this Community law — already a long came understanding that guilt is inherent in the practice of unlawful legal acts by the administration. At the same time, thus satisfying the requirements imposed by Directive 89/665 No./EEC, of 21 December, which came together 92 13 Directive//EEC, of 25 February, which, although in the specific field of the consequences of the annulment of documents concerning the formation of certain types of contracts, guidance, ECHO French array has inspired the Court of Justice of 5 Communities in the field of liability for illegal administrative acts and that precisely based on the understanding that the fault is contained in illegality committed, without need of demonstration. Advances-if, on the other hand, the flooding of the civil liability of the State for damages resulting from the exercise of the judicial function, for this purpose, a bold option: to extend the domain of the functioning of the administration of justice the responsibility of administration, with the exceptions arising from the scheme of judicial error and with the restriction that results from the failure to admit that the magistrates respond directly by illegal who commit intentionally or serious fault, if you apply the regime of joint and several liability which applies to holders of administrative bodies, employees and agents, including those who render service in the administration of Justice. With regard to the regime of judicial error, in addition to the generic delimitation of the Institute, based on a criterion of evidence of the error of law or assessment of the assumptions of fact, it should limit the possibility of the administrative courts, in a responsibility, expressing their views on the intrinsic goodness of the jurisdictional decisions, requiring that the claim for damages is based on prior revocation damaging by the competent jurisdiction. Special range is the option to proceed to the consecration of a general regime of responsibility of the State and of the autonomous regions for illegal actions or omissions committed in the exercise of political or legislative functions. Despite the delicacy of the matter and the effects of judicial practice, it was not the legislature keep silence about the constituent elements of the responsibility that, in this area, are of some specificity and whose definition therefore becomes more difficult. In this sense identify situations of unlawful by reference to fundamental rights, when offense is concerned the evident violation of duty of your protection, as well as the injury of rights or legally protected interests, when resulting from the violation of constitutional standards, international or Community law, or reinforced value standards. Recognizing, with the doctrine, that the civilístico concept of guilt in wrong forming freedom inherent in the policy function and with the inherent parliamentary pluralism contradictory, but that at the same time impose any requirements in determining the criteria to be adopted in this field, opts for avoid the call, in this context, the concept of guilt, to recognize the need to appreciate the 6 context that surrounded the tortious conduct , determining if the actions of the legislature abstract corresponded to the standards objectively required in light of the circumstances of the case. Agree that it is appropriate to admit the possibility of the Court limit the compensation when injured by an unlawful legislative action or omission and fault are in such numbers that is justified for reasons of public interest exceptional relief, such a solution. Harmony, however, the provisions of the Statute of the public prosecutor's Office with what is defined in the Statute of judicial magistrates, as the assumptions on which the exercise of the right of return of the State over the magistrates, restricting the scope of exercise of this right to cases of fraud or serious misconduct. Were heard the Supreme Judicial Council, the Board of Governors of the Administrative and fiscal Courts, the Superior Council of the Public Ministry, the Bar Association, the Chamber of bailiffs and the Council of officers of Justice.
So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: article 1 approval is approved the scheme of non-contractual liability of the State and other public entities, which publishes in the annex to this law and it is an integral part.
Article 2 special schemes 1-the provisions of this law safeguarding the special regimes of civil liability for damage arising from the exercise of the administrative function. 2. this Act prevails over any legal reference for the non-contractual liability regime of private law applicable to legal persons governed by public law. 7 article 3 compensation 1-When there is no place in the payment of compensation payable by legal entities belonging to the indirect State administration or autonomous administration and the competent court judgment is not spontaneously executed within 30 days, the credit ofcompensation is calculated can only be satisfied on the budgetary allocation entered the order of the Board of Governors of the Administrative and tax Courts (CSTAF) the alternative when through the application of the system of execution for payment of certain regulated amount in civil procedural law, it has not been possible to obtain payment by the responsible entity. 2-the provisions of the preceding paragraph shall be without prejudice to the possibility for the applicant to request your credit compensation directly with any debts that burden to the same legal person, in accordance with article 170 of the code of Administrative Courts Procedure, without the need to request prior to credit your satisfaction ofcompensation is calculated through the application of the scheme for payment of certain amount provided for in the civil procedure law. 3-in the situations provided for in paragraph 1, should be exhausted the provisions for payment of certain amount provided for in the civil procedure law without having been possible to obtain the payment through the responsible entity, the clerk of the Court shall notify immediately the CSTAF to issue the order for payment of compensation, regardless of court order and such have been requested in the alternative, in the petition. 4-When the credit satisfaction ofcompensation is calculated by means of the State budget, in accordance with paragraph 1, the State enjoys right of return, including interest, on the entity responsible, the exercise by one of the following ways: a) discount on transfers to be made to the authority concerned in the State budget of the following year; b) in the case of an entity belonging to the indirect State administration, unofficial inscription on their private budget by the tutelary which fits the budget approval; or c) return Action to bring in competent court.
8 article 4 amendment to the Statute of the public prosecutor the article 77 of the staff regulations of the Department of Public Prosecutions shall be replaced by the following:% quot% article 77 [...]
Out of the cases in which the absence constitutes crime, liability can only be effected by the return action of the State, in case of fraud or serious fault.»
Article 5 Rule set Are revoked Decree-Law No. 48 051 of 21 November 1967, and articles 96 and 97 of the Act No. 169/99 of 18 September, in the wording of Act No. 5/2002, of 11 January.
Article 6 entry into force the present law shall enter into force within 30 days after the date of your publication.
Seen and approved by the Council of Ministers of 7 December 2005 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency 9 Annex non-contractual civil liability Regime of the State and other public authorities CHAPTER I General provisions article 1 scope 1-non-contractual liability of the State and other legal persons governed by public law for damages resulting from the exercise of legislative and political functions, and administrative courts are governed by the provisions of this decree-law, in everything that is not provided for in law. 2-For the purposes of the preceding paragraph, correspond to administrative actions and omissions function adopted in the exercise of powers of public authority or governed by rules or principles of administrative law. 3-Notwithstanding the provisions of law, this Decree-Law regulates also the liability of holders of public bodies, employees and agents, for any damage resulting from actions or omissions taken in the exercise of administrative and jurisdictional functions and because of this exercise. 4-the provisions of this law are still applicable to civil liability of other workers in the service of the entities covered, considering these extensive references to holders of bodies, employees and agents. 5-the provisions in this decree-law, regulate the liability of legal persons of public law, as well as of the holders of its organs, employees and agents, for any damage arising from the exercise of administrative function, are also applicable to civil liability of legal persons under private law and their workers, holders of social organs, legal representatives or auxiliaries, for actions or omissions which they adopt in the exercise of powers of public authority or which are governed by rules or principles of law administrative.
10 article 2 special and abnormal injury or charges for the purposes of this diploma, special damages or charges relating to a person or a group, without affecting the generality of the people, and the abnormal that, exceeding the costs of life in society, deserve, by your gravity, the authority of law.
Article 3 obligation to indemnify 1-Who is obliged to repair the damage, according to the provisions of this law, must reconstitute the situation that would exist if I hadn't checked the event that requires repair. 2-the compensation is fixed in money when the natural restoration is not possible or not repair all the damage. 3-the liability provided for in this law includes no equity and patrimonial damages, as well as the damage ever produced and the future damage, under the general terms of law.
Article 4 the fault of the victim When the negligent behaviour of the victim have competed for the production or aggravation of the damage caused, in particular for not having used the proper procedure to dispose of via legal act detrimental to, the Court determined, based on the seriousness of the faults of both parties and the consequences that result, if them, the compensation must be fully granted reduced or even deleted.
Article 5 Limitation of the right to compensation for non-contractual liability of the State, other legal persons governed by public law and of the holders of the respective agencies, 11 employees and agents, as well as the right of return, prescribe pursuant to article 498.º of the Civil Code, and the provisions of the code relating to suspension and interruption of the limitation period.
Article 6 right of return 1-exercise of the right of return, in cases where this is provided for in this law, it is required, without prejudice to the disciplinary procedure that there is place. 2-For the purposes of the preceding paragraph, the registry of the Court that has sentenced the legal person refers the certificate sentence shortly after the traffic, to the entity or entities responsible for the exercise of the right of return.
CHAPTER II liability for damage arising from the exercise of section I administrative role responsibility for illicit fact article 7 exclusive responsibility of the State and other legal persons governed by public law 1-the State and other legal persons governed by public law are exclusively responsible for any damage resulting from unlawful actions or omissions, committed with guilt take, by the holders of its organs , employees or agents in the exercise of administrative function and because of this exercise. 2-is granted compensation to injured parties for violations that occurred under standard procedure of formation of contracts referred to in article 100 of the code of procedure in administrative courts, pursuant to this law. 3-the State and other legal persons governed by public law are still responsible when the damage does not work out of the concrete behavior of a holder of the organ, official or agent determined, or it is not possible to prove the authorship 12 staff of the action or omission, but should be attributed to a malfunctioning of the service. 4-there is abnormal operation of the service when, given the circumstances and the average standard result, were reasonably chargeable to duty an act likely to avoid damages.
Article 8 joint and several liability in case of fraud or serious fault 1 – recipients of organs, employees and agents are responsible for damages resulting from illegal actions or omissions, they committed intentionally or with diligence and zeal manifestly inferior to those who were forced from the position. 2-the State and other legal persons governed by public law are responsible in a manner sympathetic to the respective holders of bodies, employees and agents, if the actions or omissions referred to in the preceding paragraph has been committed by them in the performance of their duties and for this exercise. 3-Always that fulfil any compensation under the preceding paragraph, the State and other legal persons governed by public law shall enjoy right of recourse against the holders, employees or agents responsible, competing to holders of powers of direction, supervision, supervision or guardianship to adopt the necessary measures to the gross weight of that right, without prejudice to any disciplinary procedure.
Article 9 Objections 1-actions are considered illegal or omissions of owners, employees and agents in violation of constitutional principles, legal rules or regulations or infringe technical rules or duties and objectives resulting in the offence of rights or legally protected interests. 2-Also there is unlawful when the offense of rights or legally protected interests resulting from the abnormal operation of the service, in accordance with the provisions of paragraph 3 of article 7 article 10 13 1 Fault-the fault of the owners, employees and agents must be assessed by the diligence and ability to be reasonable demand, depending on the circumstances of each case, a holder of a employee or agent, zealous and faithful. 2-subject to the demonstration of intent or serious fault, it is assumed the existence of fault light on the practice of unlawful legal acts. 3-in addition to the other cases provided for by law, also assumes the fault light, by application of the General principles of civil liability, where there has been failure of surveillance duties. 4-When there is more than one responsible, shall apply the provisions of Article 497.º of the Civil Code.
SECTION II article 11 risk Responsibility responsibility for risk 1-the State and other legal persons governed by public law respond for damages arising from activities, things or administrative services especially dangerous, except where, in general terms, proved that there was force majeure or competition from the fault of the injured person, the Court, in the latter case, having regard to all the circumstances , reduce or exclude the compensation. 2-When a negligent third have actually applied to the production or aggravation of the damage, the State and other legal persons governed by public law respond jointly and severally with the third, without prejudice to the right of return.
CHAPTER III liability for damage arising from the exercise of the judicial function article 12 General Scheme 14 except as provided in the following articles, shall apply to damage unlawfully caused by the administration of Justice, in particular by infringement of the right to a judicial decision in a reasonable period of time, the regime of liability for offences committed in the exercise of administrative function.
Article 13 liability for judicial error 1-Without prejudice to the special procedure applicable to cases of penal sentence unjust condemnatory and unjustified deprivation of liberty, the State is liable for damages arising out of jurisdictional decisions unconstitutional or illegal or unjustified coarse error when assessing their assumptions of fact. 2-the application for compensation must be based on prior revocation damaging by the competent jurisdiction.
Article 14 Responsibility of judges 1-Without prejudice to the criminal liability to incur, the judicial magistrates and the public prosecutor may not be directly liable for the damages arising from acts that practice in the exercise of their duties, but, when they acted with intent or serious fault, the State enjoys right of recourse against them. 2-the decision to exercise the right of recourse on the magistrates fits to the competent body for the exercise of disciplinary authority, the unofficial title or on the initiative of the Minister of Justice.
CHAPTER IV liability for damage arising from the exercise of legislative and political functions article 15 Responsibility in the exercise of legislative and political functions 15 1-the State and the autonomous regions are civilly responsible for abnormal damage caused to legally protected rights or interests of citizens for acts which, in the exercise of legislative or political function, practice in compliance with the Constitution international law, Community law or legislative act enhanced value. 2-the decision of the Court to rule on the unconstitutionality or illegality of rule of law or your noncompliance with international Convention, for the purposes of the preceding paragraph, is equivalent to the proper legal effect, the decision to refuse the application or the decision of applying standard whose unconstitutional, illegal or noncompliance with international Convention has been raised during the process , as the case may be. 3-the State and the autonomous regions are also civilly liable for damage for the abnormal rights or legally protected interests of citizens resulting from the omission of necessary legislative measures to make enforceable constitutional norms of international law or European Community law, or rules contained in law of value, as well as those resulting from the breach of the duty of protection of fundamental rights. 4-the existence and the extent of responsibility foreseen in previous numbers are determined taking into account the circumstances of each case and, in particular, the degree of clarity and precision of the rule infringed and the fact that steps have been taken or omitted which might avoid the situation of unlawfulness. 5-the Constitution of responsibility founded on omission of necessary legislative measures to make enforceable constitutional requirements depends on the prior verification of unconstitutionality by omission by the Constitutional Court. 6-When the victims are in such a number that, for reasons of public interest exceptional relief, justified the limitation of the scope of the obligation to compensate, this can be fixed equitably in an amount lower than that which would correspond to full compensation of the damage caused.
Chapter V Compensation for the sacrifice article 16 16 sacrifice compensation the State and other legal persons governed by public offer compensation to individuals who, for reasons of public interest, impose special charges or cause damage and abnormal, and, for the calculation of compensation, account, in particular, the degree of employment of the substantial content of the right or interest infringed or sacrificed.
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