Responsabilidade do Estado perante os contratos de terceirização

Abstract

Contracts for the provision of outsourced services have several legal consequences. Its developments deserve greater attention when it is the Public Administration that uses this legal institute, since the interest of the collectivity will be present in these cases. It is also possible to highlight the civil responsibility of the public entity that contracts with companies that provide outsourced services, in which cases the Public Power will have to pay financially or not for the damages caused to the individuals. In this sense, the understanding that the state entity is jointly and severally liable for social security charges and that it is irresponsible for the fiscal and commercial charges is irreconcilable. How many of the labor assets there are several divergences that surround the matter. Ab initio its legislative forecast embodied in Law n. 8.666/1993 determined the state irresponsibility. Also in the same year, the 331 of the TST established subsidiary liability in the face of the mere default of the service provider. In ADC n. 16/2010 the STF declared the constitutionality of art. 71, paragraph 1, of Law n. 8.666/1993, however, that the Public Administration may respond subsidiarily, provided that its performance is proven with fault in choosing or guilty in supervision. This understanding served as the basis for the last change in the writing of the TST 331, which currently adopts this same position.