State Non-Contractual Liability in Ecuador and the Models of Attribution: Between the Objective and Subjective Systems

Abstract

This work identifies the dialectical construction, tensions, and contradictions that have arisen from the precedents of the former Supreme Court of Justice and the current National Court of Justice of Ecuador to determine the applicable liability attribution model in cases of State non-contractual liability related to the attributing factor of deficient provision of service. Consequently, following a detailed study of legal dogmatics and judicial precedents, the article proposes that the substantive rules of the subjective system should be applied as the modality for attributing State non-contractual liability, because its elements and rules reasonably guarantee legitimate expectation and predictability in substantive and procedural legal relations, ensuring that the damage is fully compensated. Finally, the work emphasizes that, from a technical perspective, objective attributing factors must not be confused with the substantive rules applicable to the objective liability attribution model.