Distribuição dinâmica do ônus da prova no cpc/2015: uma análise à luz dos Direitos fundamentais do processo.

Abstract

The present scientific work sought to address the dynamic distribution of the burden of proof in CPC/2015 to the time at which it is proposed to make an analysis in the light of fundamental rights in the process. Among the advances proposed in the CPC/2015, it is observed that the legislator normatize the theory before emphasized by doctrine, called the dynamic distribution of the burden of proof, which for many operators the right, it was usually applied. Faced with this reality the research shows how problematic the following question: is there or not the possibility of an immediate equality between the disputing parties? When the application of the theory studied for obedience to procedural fundamental rights? It is presented as hypothesis the possibility not to suffer negative effects the fundamental rights with the application of the theory of dynamic burden of proof. The overall aim of this study is to analyze the applicability of the theory of dynamic distribution of the burden of proof in CPC/2015 in the face of fundamental rights in the process, seeking to relate them on the optics of the effectiveness, coherence and its correct application. Aim is to yet, understand the civil procedural devices about the dynamics of the burden of proof brought by the procedure legislation; identify possible situations from the CPC/2015 in that the magistrate can make use of the theory of dynamic distribution of the burden of proof; and check the compatibility of the dynamization of the onus of proof in relation to fundamental rights in the process, having the magistrate as a determining part, bound to observe the formal assumptions of the theory. To this end, we adopted the method of deductive approach and procedure the comparative study. The survey will be descriptive and the research technique adopted is the bibliographic, having as technical procedure the documentation direct and indirect of the sources and the analysis of content. It is concluded that it is possible the use and application of the theory dynamic of proof and that does not imply prejudice the fundamental rights of the process, but, from the perspective of effectiveness, coherence and its correct application by the magistrate becomes an indispensable instrument for obtain justice.