Poderes instrutórios do juiz e o possível conflito com o princípio da imparcialidade: importância do ativismo judicial para a garantia da ordem jurídica justa

Abstract

This work aims to study the implications of judicial activism in the process, by applying his powers investigation, set mostly in art. 130, CPC, on the principle of impartiality, prime duty of the judges in our country. To do so, first approached the introductory aspects of the study of evidence, through the issue of burden of evidence, considered by some as an obstacle to the participation of the judge in the production of evidence. Next, we analyze the regulatory systems function instructory the judge, which are the inquisitive and the device, both having significant importance in Brazilian civil procedure. As revealed in the work, the two models are applied at different times in order paternal and is not in any way exclusive. Finally, we have the critical portion promoted by the doctrine that believes in breaking the impartiality of the judge in this case actively participate in the conduction process. It is quite evident that the greater participation of judges, as a characteristic doctrine advocated by modern civil procedure, is fundamental to achieving the scope of the state fair pacification of conflicts of interest in society. There is therefore, as we shall see, any conflict with the duty of impartiality, provided they comply with the constitutional and legal principles governing the judicial function.