The “theory of the public agency” and the state liability in the Chilean Government Administration Framework Act

Abstract

The persistent use of the “theory of the public agency” to resolve matters of state liability makes it advisable to review that theory. A dogmatic reconstruction of that theory reveals its complexity and limitations in explaining the way in which the liability of the State may be compromised. Without providing rules on liability, the theory proves incapable of justifying the regime of state liability under the law. Preferring a functional focus, the study proposes to discard the theory in order to solve this type of problems.