Negócios jurídicos processuais sobre presunções: uma convenção probatória

Abstract

This paper aims to address the pacts that alter the rules of evidence specifically the one concerning presumptions, measuring the possibility of their creation (presumption of conventional origin) as well as of derogation of already existing presumptions, while also studying the cases of use of the procedural covenants about presumptions. To that end, the research was divided into three chapters, initially discussing presumptions under a more generic approach, in order to establish a set of premises necessary for the analysis of the procedural covenants about presumptions. Thus, the legal nature of the presumptions was determined, an analysis of presumptions was made under an epistemological prism, and presumptions were classified according to its generating source and probative value. Later, in the second part of the paper, aspects relating to procedural contracts were analyzed: their concept; the fundamental norms applied to the institute; the limits that must be observed in order to negotiate the procedure; and the binding of the judge to what is negotiated by the parties. Moreover, the covenants that alter the rules of evidence have been thoroughly studied, which lead to the conclusion that they are to be included in the category of procedural contracts and that they are admissible in the Brazilian legal framework. At last, the final chapter aimed to discuss the procedural nature of presumptions, the aspects that constitute the procedural covenants about presumptions and to suggest criteria for the creation of conventional presumptions of negotiating origin. The possibility of derogation of already existing presumptions was also appraised. The methodology applied was one of an eminently qualitative nature, and the research was carried out through indirect investigation, through a bibliographic research, with an exploratory, descriptive, explanatory and propositive approach/bias. It has been concluded that the procedural covenant about presumptions has an obligational character and is included in the list of covenants that alter the rules of evidence.