Processo como instituição de garantia contrajurisdicional de liberdade e os poderes instrutórios do Juiz: inconstitucionalidade da distribuição dinâmica do ônus da prova e da produção de prova de ofício

Abstract

This study aims to analyze the constitutionality of probative activity of the judge regulated in the Brazilian code of civil procedure (Law No. 13,105 of March 16, 2015), assuming that process is an institution of freedom guarantee against jurisdiction in opposition to the classic publicist concept that it would be a jurisdiction instrument. Therefore, this study intends (i) to situate the paradigm established by the Brazilian Federal Constitution of 1988, that inaugurated Democratic state in Brazil, (ii) to present the bases of procedural guaranteeism as a theory resulting from the study of due process of law, (iii) to outline the organizational structures of the civil procedure and its historical-ideological roots and, in the end, (iv) to analyze the aspects of the production of evidence, the burdens of proof and the instructive powers of the judge in this area. In this way, through bibliographic and documentary research, this work proposes to overcome the procedural doctrine hitherto dominant, to then question whether the dynamic distribution of the burden of proof and the possibility of taking evidence ex officio by the judge would be under the constitutional paradigm. Thence legislative amendments and judicial review of constitutionality are proposed because of the study.