DO ÔNUS DA PROVA NO NOVO DIREITO PROCESSUAL CIVIL BRASILEIRO: dinamização versus inversão

Abstract

The research presented here deals with theories of burden of proof applicable to civil causes, in Brazilian Law. According to the general theory of proof, the burden of proving the allegations lies with the one who made them. Thus, it is the responsibility of the author to prove the alleged facts and to the defendant, to prove the facts impeding, modifying or extinguishing the author's right. This is the general rule applied in Civil Procedural Law and, consequently, to all cases where the CPC is applied subsidiarily. It occurs that, introduced in 1990 through the promulgation of the Consumer Defense Code, the possibility of reversing the burden of proof, based on consumer hyposufficiency, has brought to the order a new theory related to the burden of proof. From that point on, jurisprudence and doctrine began to defend a more flexible position on the burden of proof. And with the promulgation of the Civil Procedure Code of 2015, a mixed system regarding the evidentiary burden was admitted. Static theory became a general rule, while the possibility of applying a dynamic theory where the judge could reverse the burden of proof was opened by analyzing the specificities of the concrete case and the request of the parties. Thus, a response was sought to the following problem: did the Code of Civil Procedure of 2015 alter the dynamics of the burden of proof by instituting a new rule or only copied the existing inversion in the CDC? In order to answer this question, a bibliographical research was carried out in proceduralist doctrines and jurisprudence, dividing the result of the research into three chapters that deal respectively with the general theory of proof in Civil Procedure, the rules of burden of proof in the Code of Consumer Protection and the comparison between this inversion and the dynamic theory of burden of proof inserted in the ordering by the new CPC / 2015.