Standards probatórios no direito processual brasileiro

Abstract

The brazilian law of evidence, despite using the free evaluation of proof as the basis of the judicial analysis of proof, doesn´t indicate the model of evidence law that will be used by the judge. The best one is the rational model of evidence law, which has as one of its most important features the fact that the fact hypothesis is proved if there´s evidence to corroborate, being less important if the judge is convinced. The standard of proof is defined as the grade of corroboration demanded by the law so that an hypothesis can be considered proved. It has the function of guiding the participants of the judicial process, guide the evaluation of proof by the judge and distribute the risks of errors in the facts decisions. For the standard of proof to be useful in the first two functions, it must be defined in an objective concept, so that the parties may control it. The distribution of errors should be defined by the legislative power defining witch situations deserve better protection against factual mistakes, however, when there´s a lack of action, the Judicial Power must act to avoid a situation of complete omission. The work of the Judicial Power must be based in the norms of each particular country, verifying if the situations where there is some especial protections of any of the parties in the substantive law, the consequences of the decisions and the potential of stabilization. There is also the analysis of comparative law, verifying how other countries are dealing with standards of proof. Were studied England and USA in the common law and Italy, Chile and Colombia in the civil law. Based on the experience of those countries it´s proposed a new way to conceptualize the standards of proof by using three different models: i) probability of proof; ii) high probability of proof; iii) very high probability of proof. Using those models it´s possible to study how to distribute the standards of proof in Brazil. For the criminal law two standard will be used, based on the maximum abstract sanction of the crime, divided in the high probability of proof and very high probability of proof. In most of the civil causes, it will be used the standard of probability of proof. However, in some situations there is the necessity to chance the distribution of factual errors, demanding the high probability of proof, for example, in the procedures that can lead to non-criminal sanctions, the termination of electoral mandates, the compulsory incarceration of those who are mentally ill and some cases in the environmental law when the company is denied the license to the activity that was demanded. After that, there is the proposition of different standards of proof that are able to deal with the provisory decisions in the criminal and civil law.