Detalhes bibliográficos
| Ano de defesa: |
2020 |
| Autor(a) principal: |
Farqui, Thomaz Corrêa
 |
| Orientador(a): |
Miranda, Gilson Delgado |
| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
|
| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
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| Departamento: |
Faculdade de Direito
|
| País: |
Brasil
|
| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://tede2.pucsp.br/handle/handle/22969
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Resumo: |
Proofs represents a constantly mutating institute, because it is borrowed from everyday life by the process. They are essential for the human coexistence and for the formation of judicial convincing according to the phenomenal reality that involves the litigation. Thus, they characterize, as a rule, necessary background of a fair judicial protection. For these reasons, the right to evidence is not only a right of action constitutive element, but it was elevated to a fundamental right by the 1988 Constitution. However, it is possible that the right at issue conflicts with other fundamental rights or constitutional legal objects. In such cases, taking into account that absolute rights do not exist, it is necessary to outline safe and least objective paths to reach a solution that does not emanate from pure judicial discretion. The choice made throughout the study was for the Robert Alexy’s principles theory. Therefore, the proof restrictions analysis, once they are a result of fundamental rights collision, took place by the sequential application of the subprinciples of proportionality. However, the aforesaid analysis final result cannot be reached without the concomitant consideration of the substantive law which the instruments of evidence serve. In the case of diffuse rights, one must keep in mind it is about rights of a public nature, endowed with presumed social relevance. Because of this, there is an abstract tendency of the diffuse rights that, however, will only be confirmed in the light of concrete circumstances during the weighting process. Therefore, the present study aims, despite the mishaps caused by the lack of specific doctrinal and jurisprudential material, to expose the paths that would serve as a safe course to whether or not to admit the proof restrictions in public civil actions for the diffuse rights protection, with specific treatment of unlawful evidence. This was made by a didactic division of the theme into five chapters, being the first two for understanding the concept of evidence, and the last three for comprehending the solution mechanism for the fundamental rights authentic collisions, the right to evidence (and its restrictions) and, lastly, the diffuse rights and the proof restrictions specifically in public civil actions for the protection of those rights, in that order |
