Prova de ofício frente à imparcialidade, ao processo civil democrático e ao “garantismo” processual

Abstract

Based on the premise that impartiality is a principle dear to all branches of law and without ignoring the understanding that the process, from the perspective of guarantee, can be treated as one, the chosen approach for the research is limited to the judge's evidentiary initiative in the civil sphere, without this, however, implying the total disregard of other branches such as, for example, criminal. In this sense, the general objective of this master's dissertation, in attention to the Area of Concentration "Civil Procedural Law", refers to recognizing whether the determination of ex officio evidence is compatible with the constitutional guarantees of the process and impartiality, as one of them, is offended or mitigated with the use of ex officio investigative powers. In order to achieve the objectives, the intention is to answer the following question: "Do the investigative powers, notably the judge's evidentiary initiative, violate the guarantee of impartiality and, to some extent, is it possible to reconcile the doctrinal currents since none of them declares itself "anti-guarantist"? The present research project is justified in the sense that the study of the proposed theme is not new, but it is still far from being resolved and has been the subject of intense debate, notably in the last decade, after accusations from a group of renowned jurists, to the effect that the increase in judges' powers was inspired by authoritarian European regimes and that there is no constitutional basis/foundation in the democratic regime that legitimizes the publicization of the process and the protagonism/activism of the judge. In this sense, it is hypothesized that it is perfectly possible to reconcile the guarantees with the procedural techniques that grant the judge ex officio investigative powers, and that the cooperative model expressly established in the 2015 Code of Civil Procedure, as well as the interpretation of the adversarial principle brought in this new law no longer as a guarantee of information and reaction, but as a right to influence and not to be surprised, and the notable expansion of the duty to provide reasons are capable of harmonizing and balancing individual and state desires, curbing possible authoritarian impulses, among others.