A inversão do ônus da prova no momento da sentença à luz dos juizados especiais cíveis: uma afronta ao princípio da ampla defesa.

Abstract

This research has as its main purpose the study of the most suitable procedural moment for the application of reverse burden of proof provisions of article 6, VIII CDC, more specifically, demand check what time it would be the correct application of reverse burden of proof, in order to it does not become an instrument that violates the principle of defense and can not meet its goal, which is, to promote equality, in other words, equality of the poles in the consumerist legal relationship, considering that depending on the procedural moment applied, can generate a deflection of the poles of procedural relationship. Using the deductive method of approach, and the historical-evolutionary and comparative methods of procedure, It appears that the institution of the reverse burden of proof should be interpreted as a rule of procedure and not of judgment, therefore, the applicability should always occur before sentencing, given that it is generally a discretionary reversal, leaving the magistrate assess whether present one of the requirements that cause receivership application of this institute, since the downside is not presumed, it needs to be proven and decided by the judge during the proceedings, as if it would do just on the opportunity of the trial remains hamstrung the full defense because to the defendant was not given an opportunity to get rid of its burden. Moreover, for this work is used as a research technique direct and indirect documentation, which demonstrates the practical applicability of the institute sometimes studied, based on the analysis of decisions on the 2nd Joint Special Court of the city of Sousa-PB and the application of a questionnaire answered by the magistrate who acts on it, approaching on the application of this institute in their decisions, verifying that the institute is repeatedly applied to the judgment and the magistrate itself acknowledged that the time of sentencing is not ideal, going to accept the suggestion and reversing the burden of proof at the hearing of instruction. Finally, we arrive at the result that the most appropriate moment to reverse the burden of proof is the time after the submission of the defense when the instruction hearing starts, the defendant have already began the trial phase with the burden due and thus giving the opportunity to produce its defense satisfactorily.