The dynamic distribution of the burden of proof in civil procedure portuguese: the impossible proof | 2014

Author(s) Ana Patrícia Oliveira da Silva Lopes
Advisor(s) Elizabeth Fernandez
Year 2014

Synopsis The following study is divided in nine different steps which are complementary to one another in a way that leads to the most suitable solution. Since every essay should present itself with a text, a context and an intertext, in other words have the idea, the source of the idea and the conception of this same idea by the national doctrine and jurisprudence and the comparable right, we will start this study from the source, concept and purpose. Then, we will take over the burden of proof and its inversion in the Portuguese juridical system, so that it is possible to assess if the rules of the distribution of the burden of proof such as are foreseen in Portugal allow reaching justice and material true. It is with property that we verify that the fixed rules of the burden of proof, foreseen in the article nr. 342th of the Cód. Civ do not preserve constitutional rights as seen in the effective juridic custody and the equality of both parts, insofar as they are not configured to cases in which the burdened part is facing a diabolic proof, while the other part due to technical, cultural, educational and other reasons, performs the proof with greater ease. Based on the above, we introduce the theory of the dynamic distribution of the burden of proof, as an alternative to the rules of fixed distribution present in Portugal, introducing the theory concepts thought by the Argentinian, Spanish and Brazilian procedural systems, which already work by it or are moving towards its implementation. Posteriorly, we configured the hypotheses of the application of the dynamic theory on the Portuguese procedural system, either relatively to the Code of Civil Procedure from 1961 (for which this essay was thought) and to the new Code of Civil Procedure, which publication occurred in the late phase of the present assay. With the belief that the path to trace should be different from the actual one, we proposed a reflection on a theory that is being adopted in many countries and appears to proposed solution for the denominated crisis in justice, which is no more than the evident disbelief of the citizens towards the same.

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