A essencialidade dos factos e o princípio da preclusão no novo processo civil

Abstract

This work analyses the concept of legal fact, with reference to the doctrine and
legislation in force in Portuguese civil procedural law, introducing brief notes of
comparative law. This study is based on the guiding procedural principles, highlighting allegations, as well as the traditional existing distinction in the Portuguese civil procedure, including relevant facts, complementary or materializing facts, and instrumental facts.
It is, therefore, the purpose of this investigation to reflect, in detail, about the
concept of legal fact, by reference to the rules that guide the action of the judge in his/her decision-making, seeking to, then, unveil what constitutes each category of facts and establish the rules and the procedural effects of the distinction, taking into account the legislative developments and the current legal requirements.
Considering the abovementioned differentiation, the three types of facts present
in the Portuguese civil procedure were examined. Thus, with regard to the relevant facts, where the exact definition can only be found in the potentially applicable legal rule to the case at hand, the law lays down a clear burden of allegation borne by the parties and the existence of preclusion when they are not raised in their due procedural moment.
Instrumental facts can, nevertheless, in principle, be available to the judge without prior allegation. Complementary or materializing facts, therefore, becomes the category that contains the most tenuous borders of distinction. This may be a result, in part, due to the fact that a portion of the Portuguese doctrine itself considers them as relevant facts. In addition, the evolution of our legislation has, by increasing the powers of the judge, blurred the burden of allegation and eliminated the preclusion that would fall on the parties. The increased empowerment of a judge in all jurisdictions requires an evaluation
of the limits of the burden of allegation and preclusion. This will finally impose a decline of the latter to ensure effective judicial protection and the necessary prevalence of a decision on the substance of the case to resolve the dispute fairly and definitively.

Date of Award	7 Apr 2017
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Armindo Ribeiro Mendes (Supervisor)