O direito fundamental à prova e o instituto da preclusão: uma análise jurisprudencial sobre a prova como questão de ordem pública e a busca da verdade no Superior Tribunal de Justiça.

Abstract

The present article intends to propose a study about the right to evidence as a fundamental right, intending to find out the extent to which this right is restricted by the system of estoppel, considering the evidence as a public policy issue and the search for true in the Brasilian Civil Procedure. For this, will be performed a jurisprudential analysis of judgments pronounced by the Superior Court of Justice to gauge how this conflict is solved by the Brazilian jurisprudence, analyzing, mainly, the existence of estoppel in evidentiary matters for the judge. Were selected manually judgments from STJ that were about the theme and made a detailed analysis of the found results. It was possible to conclude that STJ, as a rule, apply the majority understanding established in this article, that shows the relativization of the system of estoppel when it goes against the right to evidence.