A responsabilidade civil do Estado pela perda de uma chance em decorrência da anulação de concurso público

Abstract

The civil liability of the State, in the current Brazilian law, follows the objective theory of civil liability, supported by the theory of administrative risk. Based on this, this paper seeks to examine if the public entity should be required to repair the injured candidate for the annulment of a public contest with incurable vice which, although required by the principle of legality, eliminates his chance to induct in public post. So, it was verified the applicability of the theory of loss of a chance in cases of public contest annulment, with focus on the lost opportunity, in order to find out in what situations it sets sufficiently serious to give rise to compensation by the State. Therefore, it was explored the understanding of the Brazilian Superior Courts about which candidates have the subjective right to be nominated and which hold mere expectation. Finally, it was concluded that the state can be liable because he has the duty to provide public services efficiently, which does not occur when the content ends up being invalidated. However, only candidates with subjective right to be nominated are entitled to compensation because they are the only ones who lose, with the annulment, a serious and real opportunity to be invested in the post for which were succeed.