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Opinión Jurídica

versão impressa ISSN 1692-2530versão On-line ISSN 2248-4078


HERRERA DIAZ, Juan Camilo  e  PEREZ RESTREPO, Juliana. Burden of Proof and Probationary Initiative in Popular Claims and its Constitutional Determination. Opin. jurid. [online]. 2021, vol.20, n.42, pp.93-113.  Epub 19-Maio-2021. ISSN 1692-2530.

The objective of the article is to reflect upon the dynamic burden of proof and the probationary initiative of the judge in the framework of the popular action as a figure through which, eventually, the protection of the collective rights might be achieved. The methodology employed was based on the documentary and jurisprudential review. One of the achievements of the article was the prevalence of collective rights over the probationary rituality. Thus, it determines that even though the claimant must provide the burden of proof, it is also true that the judge must consider the goals of the constitutional public actions towards the real protection of the rights, which will eventually imply the deployment of its officious faculties in the matter. The main conclusion refers to the fact that the claiming party has the burden of proof in the popular claims towards demonstrating the affirmed facts, but emphasizes the fact that, in the concrete case, the burden of proof might be distributed for different reasons. Likewise, the judge finds her or himself to advance its officious duty for exceptionally decreeing and performing proofs for procuring effective judicial protection without filling proof deficiencies due to a lack of diligence by the parties.

Palavras-chave : popular action; burden of proof; dynamic burden of proof; error of fact; right to proof; collective rights; proof of office.

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