In procedural law, presenting evidence is crucial for shaping the judge’s belief.
The author is responsible for proving their right, while the defendant must demonstrate facts that impede, modify, or extinguish that right, according to the general rule.
The Consumer Protection Code (CDC) introduced a significant exception by allowing the burden of proof to be shifted in favor of the consumer due to their vulnerability in dealings with suppliers.
To comprehend how this thesis is applied in legal practice, refer to the complete text.
What is stated in the CPC regarding the burden of proof?
In the legal context, the idea of proof is a tool for verifying a claimed fact.
We can use this evidence to persuade the Judge about the accuracy of the facts claimed by both the Author and the Defendant.
José Frederico Marques’ teaching has been confirmed in this regard.
The judge can be educated about the facts through evidence, and the parties aim to convince the magistrate with the evidence.
Article 373 of the Civil Procedure Code (CPC) stipulates the following:
Article 373 of the Civil Procedure Code states that the responsibility of proving a claim rests on:
I – to the writer, concerning the fundamental aspect of his entitlement.
II – to the defendant, regarding the presence of a circumstance that hinders, alters, or terminates the author’s right.
In certain situations outlined in the law or due to specific circumstances of the case making it impossible or excessively difficult to fulfill the burden of proof as originally established, the judge has the discretion to allocate the burden of proof differently. This decision must be accompanied by a justified explanation, and the party should be given the chance to demonstrate their innocence regarding the assigned burden.
The decision mentioned in Paragraph 1 of this Article should not lead to a situation where the party finds it impossible or excessively challenging to remove the charge.
The burden of proof can be distributed differently by mutual agreement of the parties.
I – land on the inaccessible side of the gathering.
To complicate a specific aspect of practicing law excessively.
The agreement related to section 3 can be signed before or during the procedure.
CDC is facing a reversal of the burden of proof.
In conflicts between consumers and suppliers, the usual practice is to follow the guidelines set in the Civil Procedure Code.
The Consumer Code was created to provide more protection for consumers, especially considering their vulnerability and limited access to justice, and it introduced some exceptions to those outlined in the CPC.
For instance, the shift in burden of proof outlined in Article 6, VIII of the Consumer Code.
Basic consumer rights are outlined in Article 6 of the CDC.
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The support for the protection of their rights, such as shifting the burden of proof in their favor during civil proceedings, may be granted by the judge when the claim is plausible or when the individual lacks sufficient resources, in accordance with standard legal practices.
The lawmaker aimed to simplify consumer protection.
Art. 38 of the CDC states that sponsors are responsible for proving the truthfulness and accuracy of information or advertising communication.
Under what circumstances can the judge shift the burden of proof?
The onus reversal is not limited to specific cases.
The consumer holds the procedural advantage.
Article 373, II of the CPC states that the defendant is responsible for proving the presence of a factor that is hindering, altering, or nullifying the copyright, requiring a defense of indirect merit.
In a civil case, inversion may occur to help protect consumer rights, based on the judge’s assessment, the consumer’s demand, or satisfaction.
How is this reversal shown in practical terms?
In practice, an example to be shown is that doctors’ civil liability is subjective and depends on proof of fault.
In this scenario, the burden of proof can be shifted, despite it being the doctor’s subjective responsibility, by demonstrating that the professional followed the appropriate technical guidelines carefully.
Consumers often have a disadvantage in disputes against doctors or medical institutions due to their lack of knowledge and access to the treatment procedures.
Doctors or medical facilities, however, can provide evidence of the judgment.
Requirements for shifting the burden of proof
The primary conditions for shifting the burden of proof are:
The author must show the Judge that his claims are true.
The hypossibility stems from a tactical disadvantage of the consumer in the procedural relationship, such as in interactions with a doctor or medical institution.
When is the burden of proof reversed?
The main points have been explained, and there is a detailed procedural debate about when the burden of proof should shift.
Some courts believe that the right moment is during the sanator order, as evidenced in the following words:
The reversal of the burden of proof occurs during the judge’s reasoned decision in the context of a sanator order, where the defendant is required to present documents in summary cognition. A decision to reverse the burden of proof was revoked, and a resource was proven through a monocratic decision.
The provision of the burden of proof should be assessed at the beginning of the legal process, or at the latest during the procedural preparation phase. It is invalid to make a judgment without considering the request for burden of proof reversal made at the outset.
The Superior Court (STJ) has established that the burden of proof should be reversed before the case investigation, preferably during the sanitation phase, as it is a procedural rule.
The legislator included a provision in the consumer code that allows for shifting the burden of proof under certain conditions, supplementing the rules of the Civil Procedure Code.
The shift in burden of proof should not be mistaken for a consumer’s entitlement but rather as a method to help their defense.
The significance of shifting the burden of proof
The shift of the burden of proof is a significant procedural tool for consumers.
This approach aims to maintain equilibrium in the interaction of forces during the process, safeguarding consumers from the challenges of providing evidence.
It is important to note that this reversal is not guaranteed and depends on certain factors.
Studying the reversal of the burden of proof is crucial for lawyers defending consumer rights and suppliers anticipating legal disputes.
Sources:
The Fourth Panel of the Superior Court of Justice has shifted the burden of proof in the judgment of the right of defense.
Frequently Asked Questions
What is the shift in the burden of proof regarding the CDC?
The reversal of the burden of proof, as outlined in Article 6, section VIII, of the CDC, enables the judge to shift the onus onto the supplier to demonstrate the lack of damage or validity of the consumer’s claim when the consumer is deemed to have less power or when the claim is plausible.
How can one request a shift in the burden of proof?
The consumer might need to reverse the burden of proof when filing the initial claim, proving that they fulfill the necessary conditions for the claim or hyposufficiency. The judge will then decide, based on a logical explanation, whether the reversal is appropriate.
What is the error of shifting the burden of proof?
The reversal of the burden of proof is not automatically guaranteed to the consumer but is a decision that the judge can make based on legal criteria.
Who is responsible for providing evidence?
The author typically needs to demonstrate the facts supporting his claim, while the defendant must address facts that can prevent, change, or nullify the claim. In cases of reversal, the burden of proof may shift to the supplier if the Consumer Defense Code conditions are fulfilled.
When is the burden of proof reversed?
What is the definition of “reproach”?
The consumer’s initial evidence suggests a strong likelihood that their claims are true, justifying the reversal of the burden of proof.
What is the standard practice for shifting the burden of proof in a trial?
The Judge will make his decision considering the likelihood and insufficiency criteria, making sure that the reversal does not overly hinder the supplier’s right to defend themselves.