Burden of proof in a civil case

• Grant number: 05/01716-3
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: September 01, 2005
• End date: February 28, 2007
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Nelson Nery Junior
• Grantee: José Américo Zampar Júnior
• Host Institution: Faculdade de História, Direito e Serviço Social. Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

All and any threat or injury the right generates in its bearer the subjective right to consider an action to get the repairing or the cession of the threat to its right. However, so that if it can reach such intention is necessary that this "forms" the certainty of the judge through the test. But to who it charges the test? In the Roman law the rule was to semper onus probare ei incumbit qui dict, what still it is followed by the one for the Code of Civil action, in its article 333. However, if the tests produced in judgment will be insufficient for the persuation of the judge, the right could not be declared, but also the judge will not be able to declare non liquet; it will have to be helped the rules of distribution of the responsibility of the test verifying its fulfilment or not. Great innovation in the probatory substance and its responsibility was adopted in the native order for the Code of Defense of the Consumer who introduced the rules of the inversion of the responsibility of the test in deals them that they involve consumeristas conflicts. It appears, finally, the quarrel on the distribution of the responsibility and its effectiveness, understanding some that in the consumption relations not only must the judge invert the responsibility of the test, but yes, in all the cases where if it verifies the impossibility of the concretion of the material right, thus fulfilling principles constitutional basic and carrying through the process its paper that is of the efetivação of the material right.