(PT) O acórdão do Tribunal de Justiça negou provimento ao agravo interno interposto em face da decisão monocrática que não conheceu o agravo de instrumento.
The Third Panel of the Superior Court of Justice decided last week on Special Appeal no. 1.729.110 / EC, involving the inversion of the burden of proof in consumer relations, understanding that it is appropriate to interpose an interlocutory appeal against an interlocutory decision on the aforementioned theme, with the understanding that this type of appeal must be admitted not only in situations where there is a decision about the dynamic distribution of the burden of proof, but also in the cases in which it is deferred or not other attributions of the burden of proof other than the general rule, provided that it operates at the discretion of the magistrate and by legal authorization.
Understand the case: it was the origin of an action to repair material and moral damages of a consumer in the face of a dealer and vehicle assembler, due to a defect in the car. The interlocutory decision reversed the burden of proof, with the justification of financial and technical under-sufficiency of the plaintiff, so that the companies could prove the non-existence of the defect or, if any, when it arose and who caused it.
The judgment of the Court of Justice dismissed the interlocutory appeal filed in view of the monocratic decision that did not meet the interlocutory appeal, reaffirming that the reversal of the burden of proof by the CDC would not be separately appellable by such appeal, due to the lack according to the provisions of art. 1015, CPC / 15 and taking into account the principle of taxation. In the Special Appeal, in addition to violations of the provisions of federal law, it was argued that the interlocutory appeal, in this situation, would be appropriate because the concept of dynamic distribution of the burden of proof would also include the inversion provided for in the CDC.
In this context, the STJ decided that the dynamic distribution (incident based on the peculiarities of the case) and the inversion of the burden (attribution by the magistrate) are exceptions to the general rule of art. 373, I and II, of CPC / 15, created to overcome difficulties of an economic or technical nature and seek the greatest possible justice in the decision on the merits, characterizing, therefore, as rules of instruction that must be implemented before the sentence so that there is no surprise for the party that receives the burden in the course of the process, as well as it is possible to discharge the burden received.
Thus, it was stated that “the immediate challenge of the interlocutory decision regarding any of the exceptions mentioned in art. 373, §1º, of CPC / 15, because only then will there be an opportunity for the party that receives the burden of proof in the course of his process to disentangle himself, either through the possibility of proving, or even to demonstrate that he cannot or should not prove, as, for example, in the hypotheses of reverse diabolic proof or double diabolic proof ”, which demonstrates the importance of the precedent for situations in consumer law, in which the proof proves to be difficult or impossible to perform due to peculiarities associated with the specific case.
By: Wilson Sales Belchior – Partner at Rocha, Marinho E Sales Advogados
Source: ClickJus
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