Uma análise acerca do onus probandi trabalhista e das implicações do novo código de processo civil em tal instituto

Abstract

The present article has as its subject the burden of proof in the Labor Process, proposing to carry out an analysis of this institute, with a focus on the suppplementary application of Common Process to the Labor Process, on the Dynamic Distribution Theory of Burden of Proof, on the implications brought by the New Code of Civil Process to the mentioned institute and in the controversy regarding the moment of inversion of the onus probandi. This article will examine the possibility of applying art. 373 of CPC/15, and its 1st and 2nd paragraphs, in the Labor Process, due to the simplicity of art. 818 of CLT, which is not exhaustive regarding the burden of proof, although there is no gap in the aforementioned legal diploma about the subject. Besides that, the dynamic burden of proof (an Spanish and Argentinean theory) and its possible application in the Brazilian Labor Process will be examined here, especially taking into account the prediction of art. 373, §§ 1st and 2nd, of CPC/15, which walks in the same direction of the mentioned theory. In addition, it will also be approached the moment of inversion of the burden of proof in the Labor Process, a topic that has several divergences in the Brazilian legal system.