تقصير در حقوق مسيوليت مدني دولت؛ مطالعه تحليلي- تطبيقي

Fault in Governmental Tort Liability Comparative and Analytical Study

Existence of fault is one of the most important elements of governmental tort liability. Artificiality of government personality and diversity on its jurisdiction give rise to two different approaches in determination of this main feature of government civil liability. In the first approach, referred as negative approach, the fault of government can be defined only by establishing the personal fault. From this perspective the fault of government is the negligence that can not be personal. In this way, when we talking about personal fault, we mean the acts that are not public and the actions that can be describe administrative negligence. The first one is the act that is ultra virus or be deliberate. The administrative fault not ultra virus nor deliberate rather, it is established when the public officer donʹt respect his or her technical duties. In contrast, in positive approach, the definition of government fault is not depend on personal fault description. Precisely it is referred when there is the breach of duties that established for government by itself and when there is quantitative or qualitative weaknesses on tools that used by public authorities or their staff..