A distribuição dinâmica do ônus da prova

• Autor(a) principal: Melo, Luiz Gabriel Mercurio De Souza
• Data de Publicação: 2019
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/26782
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL; Processo Civil; Ônus da Prova; Distribuição dinâmica; Carga dinâmica; Civil Procedure; Burden of proof; Dynamic distribution; Dynamic load

The present work has as its theme the institute of the dynamic distribution of the burden of proof according to the Code of Civil Procedure (CPC) of 2015. The objective is to make comments, as well as to analyze this institute and its applicability, to distinguish between the dynamic distribution of the current CPC of 2015 that contrasts with the static conception provided for in the previous legislation of 1973, as well as to identify its momentum. timely procedure, concept and its main characteristics. It is proposed to analyze in detail the institute of the dynamic distribution of the probative load that, briefly, authorizes the judge to shift the burden of proof from one party to another when he understands that the latter has better conditions to produce it. Doctrine and jurisprudence invoke relevant risks, especially regarding legal uncertainty, and the weakening of the judge's impartiality, giving rise to the possibility of giving in to arbitrariness when the burden of proof is distributed, which would not be the case for defenders in favor of the theory. as will be best seen throughout this paper. On the other hand, in the search for the effectiveness of the provision of judicial protection, and based on the fundamental principles of law, such as equality and the duty of collaboration, the dynamic distribution of the burden of proof is a legislative innovation in the Brazilian civil procedural law now foreseen. expressly, as there was nothing in the previous legislation. However, as with most innovations, this institute has generated and continues to generate much discussion in the doctrinal and jurisprudential field, especially issues that arise from its study and application. Finally, it is salutary to search for new mechanisms, always improving them theoretically and practically, in order to seek more and more effectiveness in providing judicial protection. It stresses the importance of adopting and interpreting these new procedural instruments with due caution, so as to avoid any prejudice to the basic guarantees of the jurisdiction