A aplicabilidade da teoria dinâmica de distribuição do ônus da prova no processo civil atual

Abstract

The present study focuses on the applicability of the dynamic theory of distribution of the burden of proof in civil proceedings nowadays. With this purpose, the monograph is about all the basic elements that surround the current procedural systematic, as the classical distribution of the burden of proof, in contrast to the overdressed dynamism by the interpreted theory. How musty, the rigidity imposed by the classical theory of distribution of the burden of proof (enshrined in article 333 of the Civil Procedure Code), by often precludes the disputing parties of reaching due effectiveness in the accomplishment of the evidentiary burden that is entrusted to them, considering the incidence of diabolical proof, causing thus an unfair trial and therefore unfavorable. Thus, it is argued, from the perspective of the dynamic theory of distribution of the burden of proof, that the evidential burden should be distributed to the party that is better factual positioned, technical or professional to support it, regardless of the procedural position assumed and the nature of the warred fact, establishing thus the principles of equality, fairness, good faith, truth, solidarity with the judiciary, due process, access to justice and the adaptability of the procedure