A distribuição dinâmica do ônus da prova no processo civil brasileiro

Abstract

The civil procedure is currently conveived as a means to ensure the reach of the scopes of the judicial protection. The concern is not not only how to effective the judicial decision is, but also the application of the law cases. Such situation demands the recognition of its public nature, v. g., being the civil procedure designed for the State functions. However, structure models most commonly found in most legal systems, including in Brazil, are unable to fully achieve the jurisdictional scopes. Theses models are criticized because they assign too much responsibility to the judgeor or to the plaintiff and defendant. While the adversarial/symmetric model is based on the judge with a passive role, opposed to a strong role given to the parties to lead the process, in the inquisitive/asymmetric model, on the contrary, the base is a role figure to the judge, meanwhile the parties are seen as mere supporters. Whenever the judge prevails over the parties, or vice-versa, certainly the decision originated from the procedure model chosen will come as a twisted perspective of the dispute presented, therefore, the model is unable to bring justice, democracy and effectiveness to the concrete instances as it should. It’s our belief that the only civil procedure model pable to eliminate the protagonist issue is the one based on a collaboration system between plaintiff, defendant and judge. This model imposes a continuous open channel with an open and frank dialogue between them, as long as fundamental guarantees are not violated; in this case, the judge decides, from a proportional and reasonable basis, that the complaint presented to can achieve the State functions in a better way. The dialogue style model proposed ends up transforming some legal and procedural situations, leading the process to adapt throughout the procedure, in order to favour the reach of jurisdiction scopes.