Aplicação da teoria da distribuição dinâmica do ônus da prova no âmbito do processo previdenciário

Abstract

The objective of this study is the logical-deductive study is to discuss the production of evidence under the pension process , highlighting the need to apply the theory of dynamic allocation of the burden of proof in that type of process for achieving procedural equality. In cases in which a citizen litigates against the state is known to exist imbalance of forces , by a structural and organizational magnitude of the organs of state , the two that have the procedural prerogatives . Thinking on the constitutional model of a fair trial in a garantista perspective, is analyzed in this work, the treatment of the parties to those disputes , focusing on the dynamic distribution of the burden of proof . It is known that most of the Brazilian jurists argue for a greater role of the judiciary in the investigation of the facts in light of effectiveness ( judicial activism ) , while others prefer to cherish the procedural autonomy of the parties to the preservation of impartiality and compliance with other guarantees arising from garantista process. Discusses the possibility of the judge reversed the onus of proof , considering the difficulty of proving a disadvantage of the facts underlying his right . This bias, we analyze the relationship between burden of proof and its " offered non standard " , examining the desirability of reducing the legal standard of proof in the name of effective judicial protection . Similarly, there is evidence in the procedure , the limits of the Judge, and the freedom of the parties under the auspices of the principle of cooperation. This paper , finally , shifts attention to the need to apply a procedural law in order to ensure an effective judicial acts Public Administration guaranteeing the fundamental right to fair and equitable distribution of the burden of proof in cases of nature pension .