A inversão do ônus da prova na relação de consumo à luz do modelo constitucional do processo civil: uma abordagem principiológica

• Autor(a) principal: Antunes, Fábio Solanas
• Data de Publicação: 2017
• 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/34053
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL

This dissertation aims to study the theory of modulation of the burden of proof in accordance with a constitutional reading of the civil procedure. The analysis is based on the reflection of new paradigms drawn in the process due to a contemporary view of the instrumental postulates and the use of the constitutional model in the jurisdictional activity of the State. The methodology is based on an understanding of the evolution of legal dogmatics and jurisprudence of Brazilian Courts, regarding the institute of burden of proof and the flexibility of the static rule established in article 333 of 1973's Civil Procedure Code and in article 373 of the adjective diploma of 2015, with the purpose of providing a higher efficiency to the instrument. It is equally important to study the ideals and objectives pursued in the process and the duty of cooperation of the parties and the judge for the just resolution of the litigation installed. Under this aspect, the dissertation goes through the vision of the dichotomy of truth, formal and material, and conprehends the indispensability of the effectiveness of judicial protection as a substrate of the principle of access to justice, understood from the angle of access to just legal order. The whole approach is fundamented on the basic principles of civil procedure and on the duty of the State, in the quality of agent who holds the monopoly of jurisdiction, to provide adequate and effective protection. In this context, the thesis proposes to observe the dynamic distribution of the onus probandi as a genuine mechanism at the disposal of the magistrate in order to ensure, with greater success, the reconstruction of the controverted facts in the case and, as a consequence, a qualified judicial protection.