Sobre a inversão do ônus da prova.

Abstract

The present monograph of conclusion of the Course of Specialization in Civil procedural law has for target analyzes it of the institute of the inversion of the responsibility of the test from art. 6°, interpolated proposition VIII, of the CDC. In the scope of the research, we look for to demonstrate in linear way as art., 333 CPC deals with it the substance and from there we made a comparison between these two articles. We still analyze the concept of test, its character duplicity and the responsibility of the parts before its action or inertia at this procedural moment, as well as, the paper of the judge in the distribution of the test. We explain that the law defines two clear moments so that the inversion of the burden of proof occurs; the experience of the judge to understand the facts that are presented it e, of form alternated, the probability of the facts alleged for the consumer or its hipsufficient ahead of the occurrence. How much to the relative point the experience of the judge, the law is clear when defining that a knowledge extremely detailed is not necessary and complex of the consumption relation. The knowledge of usual rules is enough, that is, of that commercial normality imposes as usual. The other point that the law defines as condition for the inversion is the probability or hip sufficient of the consumer. These items extremely walk linked, mainly for historical reasons. In the past, before the validity of the Code of Defense of the Consumer, that one that it acquired a product or service had, ahead of the normal rules of the civil action, to make test of the alleged defect, what many times were almost impossible, ahead of the difficulty to demonstrate what he had been promised and the presented defect. Ahead of this, if the consumer made a test that took the judgment to have forts indications of that the truth is of its side (probability) or of that he does not have condition to prove the alleged one in reason of its social situation, economic or cultural (hipsufficient), the judge can invert the responsibility of the test. We made, thus, a basic analysis of the inversion of the responsibility of the test from its concept until the adjusted procedural moment more for its challenge, i f before or after the sentence.