Abstract

GIRALDO GOMEZ, LUIS FELIPE. The Duties of Solidarity do not Judicially Justify the Civil Liability of the State in Colombia. Rev. Derecho Estado [online]. 2024, n.59, pp.365-394.  Epub June 25, 2024. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n59.12.

There is a jurisprudential practice of resorting to the principle of solidarity as an argument to support a sentence for civil responsibility of the State. This paper aims to show that this position is not adequate; Although solidarity is a founding value of the Social and Law State embodied in the Political Constitution of 1991, none of the generic constitutional duties that emanate from this principle aim to generate an obligation to make reparation by an individual or by the State under its title of civil liability. The principle of solidarity constitutes a philosophical foundation of damage compensation mechanisms, but the differences that exist between unilateral mechanisms that seek to socialize damages resulting from social risks must be recognized, compared to bilateral ones such as civil liability, in charge to generate the obligation to make reparation in the head of who has caused damage. Under these conditions, it is not correct to impose in court the obligation to make reparation by way of civil liability to an individual or to the State based on the principle of solidarity; such a practice implies a clear transgression of the rules of the bilateral system of compensation for damages, an excess of the functions by the judge and an undue mutation of the function of civil liability.

Keywords : Civil liability; solidarity; social assistance; causal link; attribution factor; damage compensation mechanisms.

        · abstract in Spanish     · text in Spanish     · Spanish ( pdf )