Fatos que Dependem ou Não de Prova

109
773

CEBRASPE (2009):

QUESTÃO ERRADA: Acerca do objeto da prova, assinale a opção correta: Os fatos são objeto de prova, e nunca o direito, pois o juiz é obrigado a conhecê-lo.

ERRADA: Via de regra, somente os fatos podem ser objeto de prova. No entanto, quando a parte alegar direito municipal, estadual ou estrangeiro, deverá provar−lhes o teor e a vigência, pois o Juiz não é obrigado a conhecê−los. No entanto, como a competência para legislar sobre Direito Penal e Processual Penal é privativa da União, esta norma pouco se aplica ao Direito Processual Penal, tendo maior aplicação no Direito Civil;

Fonte: Prof. Renan Araujo – Estratégia Concursos

São fatos que independem de prova:

a) Fatos notórios ou verdade sabida.

b) fatos que contêm presunção legal absoluta (juris et de jure).

c) fatos impossíveis.

d) fatos axiomáticos ou intuitivos.

e) fatos irrelevantes ou impertinentes ou inúteis.

Ademais, em regra, o objeto da prova são os fatos que as partes pretendem demonstrar. De forma excepcional, é necessário provar o direito quando versarem sobre normas de caráter internacional, consuetudinário, estadual ou municipal.

Fonte: Leonardo Barreto Moreira Alves. 2016, página 212/213.

CEBRASPE (2023):

QUESTÃO ERRADA: Independem de prova os fatos incontroversos apresentados por uma das partes e não refutados ou impugnados pela parte contrária.

 De acordo com Renato Brasileiro, os fatos incontroversos e não contestados também devem ser objeto de prova, não se pode confundir o processo penal com o processo civil. Obs: De acordo com o art. 397,II e III do CPC, não dependem de prova os fatos afirmados por uma parte e confessados pela parte contrária ou admitidos, no processo, como incontroversos. Além disso, se o réu não contestar serão verdadeiros os fatos afirmados pelo autor. Já no processo penal, por força do princípio da presunção da inocência, mesmo que o acusado confesse a prática do delito, subsiste o ônus da acusação de comprovar a imputação. Além disso o juiz deverá confrontá-la com as demais provas (art. 197) Mesmo que seja decretada a revelia, não há de falar em confissão ficta ou presumida (art. 367).

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Fatos que independem de prova: fatos notórios, axiomáticos ou intuitivos, inúteis ou irrelevantes, presunções legais e presunções absolutas.

Fatos que devem ser objeto de prova: imputação constante na peça acusatória, costumes, regulamentos e portarias – salvo se funcionar como norma penal em branco, direito estrangeiro, estadual e municipal – referente a localidade diversa do exercício jurisdicional, e fatos não contestados ou incontroversos.

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