A inversão do ônus da prova no código de defesa do consumidor : a adoção de regra de julgamento e o risco de inefetividade dos processos contra instituições financeiras

AUTOR(ES)
FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

10/05/2010

RESUMO

The present paper accomplishes a study about the burden of proof distribution in classical Brazilian civil procedure, as opposed to the exceptional prediction in the legal micro-system defined by the Brazilian Consumer Defense Code about the inversion of the burden of proof in concrete case and by judging decision to the consumers, when the formalities required by law are all fulfilled. Specifically about the lawsuits in which juridical relations between consumer and financial institution, it identifies the need of quantifying and/or bounding technical proof, in most of the cases, that are needed to the liquid rendering judgment in the mentioned procedures as a way to amplify the effectiveness and celerity in its accomplishment, avoiding the procedure slowdown, the ineffectiveness risk of the decisions and consequently leading to a faster and more adequate jurisdictional ward provide. For this, in its introduction it brings classical and modern notions and conceptions of justice, procedure and jurisdictional operation socially expected nowadays. In specific chapters it studies the proof, the burden distribution to the parts, the precedents of the inversion of the burden of proof possibilities in the national and foreigner doctrine and the affirmation of this rule in the consumer law, as well as the definition that the national doctrine and jurisprudence give to it, mostly as judgment rule in derogation of the adoption of the inversion as an activity-procedure rule. Finally, it examines the law inovation propositions in discuss, about the Brazilian New Civil Procedure Code and about the Collective Procedure Code ideals presented to the Ibero-American and Brazil, concluding to be possible, prompt and appropriate the discussion about the theme, with possible interpretative innovation by the doctrine and even though legislative, in the direction of considering effective procedural inversion of the burden of proof possibilities in such cases, exclusively about the technique proof with consequent economical burden inversion, keeping its relation to the other proof modalities in the judgment rule, in frank hybrid system, in order to reach the real goals of the jurisdictional ward conceived by the most updated doctrine, consonant the yearning of the society.

ASSUNTO(S)

prova (direito) Ônus de prova defesa do consumidor - legislação tutela jurisdicional processo civil evidence (law) onus probandi burden of proof jurisdictional ward civil procedure consumer protection - law and legislation

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