Revelia e persuasão racional do juiz

AUTOR(ES)
DATA DE PUBLICAÇÃO

2005

RESUMO

It checks the borders of the presumption of facts contained in the initial petition when lacks seasonable contestation with the observance of the legal formalities. Seen as an objective fact, the default will occur when the defendant stays inert at the processual moment offered to him to adduce his reasons to resist the request of the prosecutor, what doesn t necessary implies in its procedure. However, the default not always unleashes its effects, that are classified as material or processual, consisting in the presumption of the veracity of facts pleaded by the prosecutor in his initial petition and the lack of need of notification the default for the processual acts that follows. The presumption in default is relative, it means that, its effects circumscribing verisimilar facts and consistent with the other evidences that lie in the lawsuit, what goes to the need of the material direction and not only the formal side by the judge as a way to find the fair composition of the litigation, there so attending the social finalities of the process effectively inserted in the Democratic State of Law. Even if the pleaded in the initial petition do not come matter of fact debated in the process, nothing obstructs the default of becoming active and interferes in the suit, receiving it in the state that lies. So he will be able to cast doubts in the spirit of the judge willing to prove the untruths alleged. We re not talking about renewing processual stages that are long gone, but insert and offer the default the ability to practice the processual act in operation, since it was only dismissed his notification and not the fluency of the deadline. The evidences required by the default, if the process instruction hasn t ended, should stick to fact alleged in the initial petition, because he will not be able to produce proofs of pleads that he hasn t brought up in the seasonable moment. The foretaste of the law suit is only applied when the elements that lies in it are enough to it, since the understanding must be absolute and exhausted, been the judge able to even re-open the lawsuit instruction to convince himself. Besides the law material must be analyzed in details, as the presumption border the fatidic mater, assigning the judge the right allocation of the presumption in the law universe, Coming to the conclusion that shall be exteriorized in the explaining of the decision the coherence of fatidic bases and juridical ones, containing all the prominent points of the suit, therefore attending the principle of the rational persuasion, resulting in a full jurisdictional tutelage, under the penalty of nullity of the law suit due to the lack of motivation of the sentence. Using the deductive method, the study starts by analyzing the binomial demand and response, focusing in the inactivity of the defendant as a way to don t exercise the burden of defense, confronting at the end the judicial decision where was verified the objective fact of the default with the sentence lacking motivation.

ASSUNTO(S)

contestation (civil procedure) processo civil revelia (direito) contestação (processo civil) civil procedure default (law)

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