O ônus da prova e a teoria das cargas probatórias dinâmicas: uma análise à luz do art. 373, § 1° do Código de Processo Civil de 2015

Abstract

The problem of the procedural burden of proof has aroused doctrinal debates for a long time, especially the isonomy criterion and the fundamental guarantee of the fair and adequate provision of tutelage under material law. At the beginning of the 19th century, the english jurist philosopher Jeremias Bentham already defended that the procedural risks resulting from the evidential instruction should be shared in an isonomic way, making the burden of proof fall on the one who had better information about the litigious facts, regardless of the interests subjective causes of the cause. Studies that were taken up by the doctrine of Jorge Walter Peyrano in Argentina of the 1970s, whose influences in the Brazilian civil process can be seen in some microsystems, such as in the Consumer Protection Code and in the Paternity Investigation Law, just gaining emphasis with the general clause of art. 373, §1º of the Code of Civil Procedure of 2015. In the face of everyday tax situations, when the impossibility or greater ease of presenting evidence by the tax authorities or by the taxpayers is demonstrated, the dynamization of the probative load appears as a hypothesis to guarantee greater effectiveness of tax administrative processes, with the proviso that the federative autonomy of self-regulation of its activities must be preserved.