A distribuição do ônus da prova no CPC/2015 e os princípios constitucionais processuais e da cooperação na busca da igualdade substancial

Abstract

Called the dynamic distribution of the burden of proof, the flexibilization of the evidentiary burden provided for in the first paragraph of article 373, of CPC/2015, is applicable subsidiarily to the general and abstract rule set forth in the caput, in cases in which litigants find themselves in a situation of disparity ability to produce evidence. The objective of this study is to to examine how the impartiality of the judgment, and other constitutional principles of procedure, as well as cooperation of the parties in application of the recent legislative forecast of flexibility of the evidentiary burden, contribute to reducing procedural inequalities. Therefore, the reasoning from central guidelines, such as the concepts of burden of proof, of dynamic theory of distribution of the burden of proof, going through the comparative adopted by the 1973 Code with the model of the current civil process diploma and writing of the legal device in which the dynamic theory was applied. After, certain constitutional principles and the principle of cooperation and it’s relevance to the new rule of procedural law are studied . Once this analysis is done, it will be discussed about the moment of distribution of the burden of proof and how the impartiality of judgment and the cooperation of the parties to the proceedings can be decisive to achieve greater equality. From this, it is concluded that the distribution of the burden of proof is an important mechanism for the fair solution of litigation, since it seeks to enforce constitutional principles and guarantees, and the impartial and effective performance of the magistrate in redistribution must be allied to the cooperation of the parties to achieve substantial equality.