The burden of proof in civil proceedings: an evolution from the formal equality of the parties to their material equality

Abstract

The purpose of this paper is to analyze how the continental-type civil process has evolved, in light of the principle of equality; from formal to material equality. These developments are reflected in a series of legislative reforms in most countries that have a continental tradition, which seek to equalize the position of the parties in the process. The latest corrective measures include those that seek to alter the classic and liberal rule of onus probandi, which is understood, in many cases, to be detrimental to the situation of the weak plaintiff or the person who does not have sources of proof. It therefore studies the so-called dynamic burden of proof; the presumptions in favor of the plaintiffs and a measure that seeks to alter the rules on the burden of proof, but also to reduce the degree of certainty that the evidence provides to the judge in order to establish the facts constituting the claim, as is the case in some hypotheses of anti-discrimination law and the labor process.