O dever de cooperação no âmbito da produção de prova

• Autor(a) principal: Petrea, Loredana
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/139340
• topic: Processo civil; Princípio da cooperação; Prova; Dever de cooperação probatório; Violação do dever de cooperar; Civil procedure; Principle of cooperation; Evidence; Probative cooperation duty; Violation of the cooperation duty; Direito

The subject that we develop in this dissertation is the Cooperation Duty in the context of Production of Evidence and aims to address the probative cooperation duty of four means of proof in the Portuguese civil procedure: documentary evidence, expert evidence, judicial inspection, and testimonial evidence. To enrich this study, we make a brief passage across the two traditional models of civil procedure: adversarial and inquisitorial models, presenting its essential aspects. However, the consecration of the principle of cooperation in Portugal makes us reflect about the discussion surrounding the transition to a new procedural model: the cooperative model, comprehending if there is a break with the authoritarian paradigm of the Procedural Civil Code of 1939. The procedural legal relationship between the intervening parties is complex, as there as links that unite the parties with each other and these to the court, so these links are regulated by duties arising from the principle of cooperation. Regarding the probative activity, in addition to the cooperation duties of the parties and the court, the law determined its extension to third parties, in order to investigate facts relevant to the decision of the case. The duty of cooperation is manifested in each of the four means of evidence for the three procedural players. The probative cooperation duty has some limits in its functioning for the parties and third parties, who are governed by an idea of unenforceability to cooperate. In this regard, refusal is allowed without the application of any sanctions stated for the violation of this duty. However, if the refusal is not legitimate it is sanctioned, for example, with a conviction to pay a fine, application of a coercive measure or, when stated, the omissive procedural conduct of the parties is valued as evidence.