The dynamic burden of proof. Analysis from the Paraguayan civil legal field

Abstract

During the process, the parties have to prove the facts that they allege. This essay carries out a theoretical analysis of the burden of proof and Paraguayan civil procedural regulations to understand in which situations the judge can transfer the burden of proof to the party that did not provide it. The Civil Procedure Code and its article 249 represent the starting point to determine the legitimate subjects who are to constitute the evidentiary material in court. However, it does not limit the possibility that the judge, based on the concept of dynamic burden of proof, can determine which of the parties is in a position to produce the proposed evidence. This decision should be taken according to the rules of fairness and evidentiary loyalty. As a whole, in the Paraguayan civil procedure rule, there are certain procedures before which the judge can transfer the burden of proof for its reproduction to the party that did not provide it in the process.