A valoração judicial da conduta processual das partes no campo probatório

Abstract

This study aims to analyse the possibility of judicial evaluation of the parties conduct in a civil procedure, in the light of the Principles of Good Faith and Cooperation. The treatment of this subject is divided into four sections. In the first part of this study, the methodological premises are presented, beginning with the theoretical framework: the axiological formalism, that provides the basis for the cooperative process, arising from the principles of good faith and cooperation. In the second chapter, it states the duties, rights and burdens, arising from the cooperative process. In the third chapter, the main structure is presented: parties, object, and juridical nature of the evaluation of the parties conduct in the judicial procedure, as well as the research under the foreign law. In the following section, the scope is to examine the possibility of obtaining evidence of the parties conduct under the Brazilian Code of Civil Procedure, based on the principles of rational persuasion, good faith, cooperation, the admission of atypical means of evidence, the use of the rules of experience, as well as the specific legal provisions of evaluation the party s conduct by some means of evidence. Then, the study focuses on the necessity of inserting a general rule about the possibility of obtaining evidence from the parties conduct under the Brazilian Code of Civil Procedure. Afterwards it analyses the efficacy of the evidence arising from the parties conduct. Then, it distinguishes the evaluation of the parties conduct from that of similar institutions such as venire contra factum proprium, supressio, surrectio, tu quoque, self-contradiction (autocontradiciòn), estoppel. Finally, it sets out the control devices that aim to prevent arbitrary judicial decisions: the fair hearing and reasoned judgement.