O DIREITO À PRODUÇÃO PROBATÓRIA E O CONTRADITÓRIO COMO DIREITO DE EFETIVA PARTICIPAÇÃO NO PROCESSO

Abstract

This paper aims to verify whether the production of evidence must take place in accordance with the circumstances of the case under analysis, insofar as a party can perform a certain proof, according to the evidentiary possibilities available to the respective parties and due to the characteristic of the facts, and whether this issue is connected with the right to the adversary system, seen as the right to effectively participate in the process, with the possibility of influencing the formation of j udicial decision. This paper is contextualized in a possible re-reading of the constitutional principle of the adversary, as well as in the fact that it is not possible to find, in doctrine, a treaty regarding article 369, of the Code of Civil Procedure, in which the approach proposed herein is taken into account. It is taken into account that the party (Art. 369 of the brazilian Code of Civil Procedure) has the right to use all means to influence the court conviction. The aforementioned legal provision states that it is the right of the parties to use existing means to influence the final outcome of the process. The right to proof is set by the legal text as a mechanism for the parties to influence the judicial act. This conception is the place where the contradictory (as the possibility of participation in the process) is connected with the development of the right to proof. As a result of the research carried out, it was seen that there are certain provisions in the legislation that require specific evidence, as in article 2-A, sole paragraph, of Law 8.560/1992, in article 579; in article 604, item III; as well as in article 753 of the Civil Procedure Code, examples were also seen from judgments of Brazilian Courts. Currently, there are more technological means to influence the delineation of factual issues submitted to court. The conclusion is that the wording used in article 369, of the Civil Procedure Code, linked to the fact of living in a society in which more evidence can be collected, seems to change the context for the tasks to be carried out in the probationary mister within the procedural context. As for the methodology, the work is descriptive in relation to the purposes. Regarding the means, the research was bibliographical, in the consultation of books and scientific articles, and exploratory, as it relied on the analysis of judgments from the Brazilian Courts to verify the applicability of the idea raised.