A inversão do ônus da prova e o custeio dos honorários periciais na ação civil pública

• Autor(a) principal: Bastos, Marina Montes
• Data de Publicação: 2013
• 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/35037
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL

The scope of this work is the comprehensive study of the burden of proof in collective actions. First, it will bring an analysis of the legal regime for burden of proof in accordance with the Consumer Protection Code, and its applicability to other transindividual rights besides the Consumerist Law. It will also be explained the “theory of dynamic procedural loads”, and the use of the precautionary principle as an argument for reversing the burden of proof in environmental matters. From the analysis of the requirements for the reversal of the burden of proof in collective actions, it will be demonstrated which is the appropriate procedural moment for this inversion, whether in pre-trial phase (procedural rule) or the decisional phase (judgment rule). And finally, it will enter in the issue of funding of expert fees in collective actions, since Article 18 of Act 7.347/1985 determines that there will be no funding of expert fees by the author of the demand – even if he is the one who ordered the examination -, and there is no rule forcing the defendant to bear these costs when he has not required such examination. Based on this impasse, it will be examined alternatives identified by the doctrine and jurisprudence to solve it, such as the funding by the Public Treasury, the funding by the Fund for the Defense of Diffuse Rights, and expert examination by public institutions. Still, it will be carefully considered the argument that the reversal of the burden of proof implies the reversal of the burden of financing this proof, verifying that, in theory, this rule is not justified, but in practice, the non-payment of proof implies its non-realization, harming, after all, only who has the burden of proving