Burden of proof: an analysis of static and dynamic distribution of the burden of proof and its legislative prevision in portuguese and braszilian civil procedural systems | 2015

Author(s) Carolina Cristina Miotto
Advisor(s) Elizabeth Fernandez
Year 2015

Synopsis The developed master’s thesis aims to analyze, in the framework of Civil Procedure, the distribution systems of the burden of proof, namely the static and dynamic distributions of the burden of proof in order to identify their weaknesses and possibilities, especially when used as judgment rule. The objective is also to evaluate the probative forms of distribution used in civil and civil procedural systems of Portugal and Brazil. The work was developed using the inductive research method, through literature review, in consultation with the national and international doctrine, the laws of the countries in question, the decisions of brasilian and portuguese superior courts and regional courts, in printed sources and also available on the worldwide computer network (Internet). The work was divided in five parts. In the first part are analyzed the concept of truth and process, procedural stories and their implications on the judicial decision. Is also discussed the value of truth in the judicial process and multiple possibility of semantic variations of the term. In the second part of the work, it goes to directly address the evidence in the judicial process, its historical context, concepts, and also the principles of Constitutional Law and Civil Procedure related to the proof. After, it properly enters in the burden of proof and its specific nuances, indicating the objective and subjective burden of proof. In the fourth part, indicates the theories of distribution of the burden of proof. Finally, the fifth part describes the civil procedural systems Brazilian and Portuguese in reference to the rules of the probative burden. From the study, it was concluded that the static distribution model of the burden of proof distribution model adopted by the civil and civil procedural law in Brazil and Portugal does not consider contemporary goals of civil procedure and the desires of the modern state. However, it was found that both systems allow, advocating the constitutional principles of equality and effectiveness, the indirect application of dynamic distribution of the burden of proof. It was concluded that the amendment dated 2013 of the Code of Civil Procedure of Portugal, although it has increased the powers of the judge, still encounters resistance in the application of a flexible burden of proof in Civil Procedure Portuguese. The changes introduced by the New Civil Procedure Code of Brazil, in turn, will allow more flexible distribution of the burden of proof between the litigants in Brazil.

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