The instructory power of the judge in the brazilian civil process

possible limitations to the performance of office in the production of the proof

Abstract

This paper aims to analyze whether there is a limitation on the judge's instructional power in Brazilian civil procedure. The Civil Procedure Code of 2015 provides for broad instructional powers to the judge, without, however, presenting express limitations. Thus, it is appropriate, through a qualitative bibliographical analysis, to identify, even if through systematic interpretation of the current procedural legislation, and through doctrinal positions, the possible causes limiting this ex officio power. In fact, this study analyzes whether the judge compromises his impartiality when he determines evidence ex officio; whether the nature of the right in question limits the judge's ex officio power and, finally, whether legal procedural agreements and the rules on the burden of proof have the ability to restrict the judge's ex officio power to produce evidence. Therefore, we conclude that there is a limitation on the judge's power to instruct, since, even if supported by a broad power to instruct, the judge must observe the procedures and concrete circumstances in order to determine the judge's ex officio action, so as not to compromise the activity performed.