Abstract

DIAZ-RESTREPO, Juan Carlos. The dynamic burden of proof as a modality of evidentiary burden applied in the colombian legal system-infrigement of constitutional equallity. Entramado [online]. 2016, vol.12, n.1, pp.202-221. ISSN 1900-3803.  https://doi.org/10.18041/entramado.2016v12n1.23123.

The dynamic burden of proof is on probation judgment rule, in force in the Colombian legal system, which is to allocate the burden of proving to the party is in a better position to make it matter. Its implementation brings important new practical consequences, which analyzed in the light of constitutional reasoning, undermine the constitutional supremacy on equality. This rule favors one of the procedural ends and is enshrined as a measure of differentiation established under the mandate of fair differential treatment included in the Constitution, therefore should be credited for their valid origin, compliance with the requirements of the Constitutional Court, such as: the existence of an objective and reasonable justification, a relationship of proportionality between justification and rationality facts and the aim pursued. However the rule does not meet the requirement of being founded on a rationale that is objective and therefore constitutes a differentiation that contrary to materialize real equality, ends up causing their violation. For that reason the regulation of the standard to ensure that your application will only be given when there is objective and reasonable justification is proposed, that is, before the verification of a real imbalance, which has sufficient authority to make urgent distribution of loads, the imminence of involvement of the right of defense.

Keywords : Burden of proof; the dynamic burden; due process; material equality; vulnerability.

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