Default and rational persuasion of the judge

Abstract

It checks the borders of the presumption of facts contained in the initial petition when lacks seasonable contestation with the observance of legal formalities. Seen as an objective fact, the default will occur when the defendant stays inert at the processual moment offered to him to adduce his reasons to resist the request of the prosecutor, what doesn’t necessary implies in its procedure. However, the default not always unleashes its effects, that are classified as material or processual, consisting in the presumption of the veracity of the facts pleaded by the prosecutor in his initial petition and the lack of need of notification the default for the processual acts that follows. The presumption in default is relative, it means that, its effects circumscribing verisimilar facts and consistent with the other evidences that lie in the lawsuit, what goes to the need of the material direction and not only the formal side by the judge as a way to find the fair composition of the litigation, there so attending the social finalities of the process effectively inserted in the Democratic State of Law. Coming to the conclusion that shall exteriorized in the explaining of the decision the coherence of fatidic bases and juridical ones, containing all the prominent points of the suit, therefore attending the principle of the rational persuasion, resulting in a full jurisdictional tutelage, under the penalty of nullity of the law suit due to the lack of motivation of the sentence.