The Exceptional Character Of The Court Order To Shifting Of The Burden Of The Proof Under The Bill To Establish The New Code Of Civil Procedure

Differently from the current provision for the burden of the proof in the Code of Civil Procedure in effect in Brazil (Law no. 5 869, of January 11, 1973), that is, a static burden of the proof (art. 333, I and II), established in a rigid manner, the Bill to establish the New Code of Civil Procedure under discussion in the Brazilian Congress intends to adopt a new procedure technique intended to make the burden of the proof more dynamic.

Under the technique currently in force, the plaintiff is required to produce evidence of the facts constituting its own rights, whereas it is incumbent on the defendant to show any facts preventing, modifying or extinguishing its own right.

The current legal provision, considered excessively inflexible by many, has been criticized over the years by most of the legal doctrine, and many claim for an updating of the technique and acceptance of a flexibilization of the burden of proof. As it seems, such claim is intended to expedite the procedures, reach better conditions in the search of the actual truth and, further, reduce the duration of lawsuits, which are quite time-consuming in Brazil.

According to the latest text of the Bill to establish the New Code of Civil Procedure - still under discussion by the Brazilian Congress - the cases submitted to the Judiciary, to the discretion of the judge in charge of the case, or by means of an agreement between the parties involved in the cases at stake, may be eventually conducted with the change in the burden of the proof. In this regard, the Bill to establish the New Code of Civil Procedure provides as follows:

"Art. 380. The responsibility for the burden of the proof is incumbent on:

I - the plaintiff, in regard to the fact constituting its right;

II - the defendant, in regard to the existence of any fact preventing, modifying or extinguishing its right.

Par.1. Where provided for by the law, or in view of the circumstances of the case, when such circumstances make it impossible or excessively difficult for one of the parties to meet the obligation set forth in the lead paragraph above, or when it is much easier for one of the parties to obtain the evidence of the contrary fact, the Judge may allocate the burden of the proof otherwise, provided that based upon a well-grounded decision. In this case, the judge may give the party the opportunity to discharge the obligation placed upon it.

Par. 2. The decision provided for in Par. 1 hereof cannot generate a situation...