A DISTRIBUIÇÃO DINÂMICA DO ÔNUS PREVISTA NO CÓDIGO DE PROCESSO CIVIL DE 2015 E SUA INCIDÊNCIA NO PROCESSO DO TRABALHO

Abstract

The central theme of this study is the analysis of the reflexes of art. 373, § 1 of CPC / 2015, which provides for the applicability of the dynamic distribution of the burden of proof in Brazilian civil proceedings, in the labor court. Regarding the burden of proof, CPC / 1973 adopted a static reference (article 333), giving the author the burden of proving the facts that constituted his right and the defendant to prove extinguishing facts, modifying and impeding the law; while the CLT merely argued that it was for the party making them to prove the allegations, taking into account the case-law of making certain adjustments in that area. The theory of the dynamic distribution of the burden of proof, developed in Argentina in the late twentieth century and expressly received by the CPC / 2015, admitting the possibility of the judge to modify in a justified manner the burden of proof when this measure proves adequate and necessary, walks in the sense of guaranteeing effectiveness to the jurisdictional action. Given the relevance of this issue, this study intends to examine the applicability of the dynamic load foreseen in the CPC / 2015 in the labor sector. In order to reach this scope, an analysis of the normative evolution regarding the burden of proof will be undertaken, examining the Brazilian legislation and the Brazilian and foreign doctrine. Special emphasis will be placed on the doctrine of Argentina because it is responsible for the first manifestations about the dynamic load of the test. Afterwards, possible contexts will be evaluated, demanding the flexibility of the burden of labor procedural relations.