The juris et de jure principle denotes an absolute or irrebuttable presumption, a legal institute through which the law establishes an incontestable truth, prohibiting the production of evidence to the contrary. Its application transcends various branches of Law, notably Civil Procedure, Civil Law, and Tax Law, operating as a mechanism for stabilizing legal relations and ensuring procedural economy.
Concept and Foundation
The Latin term juris et de jure designates a presumption that does not admit evidence to the contrary (praesumptio juris et de jure), differing from the juris tantum presumption, which is relative and subject to rebuttal. The legal nature of this institute is that of an imperative rule with full efficacy, which binds the magistrate to a predetermined legal result, regardless of the underlying factual truth. By elevating a certain fact or condition to the status of absolute truth, the legislator prioritizes legal certainty and speed over the search for the real truth, when the latter proves detrimental to the stability of the system.
Historical Origin and Evolution
The institute finds deep roots in Roman Law, consolidating itself as one of the pillars of classical evidentiary technique. Under the aegis of fictio iuris, Roman jurists developed the distinction between presumptions that admitted counter-evidence and those that, due to their political or social relevance, became definitive. In the Brazilian legal system, the institute was adopted by the 1916 Civil Code and maintained, with adaptations, in the 2002 Civil Code and the 2015 Code of Civil Procedure, reflecting the need to confer finality to legal situations consolidated by the passage of time or by legal imposition.
Legal Provision and Practical Application
The absolute presumption finds resonance in several provisions of the positive legal system:
- Civil Code, Art. 1,597: Establishes the absolute presumption of paternity for children born during the marriage, provided legal requirements are met, conferring stability to the family unit.
- Code of Civil Procedure, Art. 374, IV: Waives the proof of facts in favor of which there is a legal presumption of existence or veracity, which includes absolute presumptions.
- Tax Law: The application of absolute presumptions is the subject of intense debate, especially regarding the setting of tax bases, where the Supreme Federal Court (STF) has tempered such presumptions to avoid confiscation and violation of the contributory capacity.
Jurisprudence and Consolidated Understanding
The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) have restricted the application of the juris et de jure presumption in matters involving fundamental rights. In the scope of Family Law, jurisprudence has evolved to allow, in exceptional situations, the setting aside of the presumption of paternity through genetic testing (DNA), prioritizing the principle of human dignity and the search for biological truth over the rigid legal presumption (see precedents on the prevalence of socio-affective and biological paternity).
However, in procedural matters, consumptive preclusion and limitation periods function as absolute presumptions of the loss of the right of action, according to the understanding consolidated in Súmula 150 of the STF: "Execution prescribes within the same period as the limitation of the action."
Doctrinal Divergences and Related Principles
Modern doctrine, influenced by post-positivism, questions the constitutionality of absolute presumptions that hinder access to justice or the adversarial system. The principle of proportionality is invoked as a limiting factor: a juris et de jure presumption is only legitimate if the pursued end (legal certainty) is superior to the sacrificed individual right. Guaranteeist currents maintain that absolute presumption must be interpreted restrictively, lest the process be transformed into an exercise of empty formalism.
Contemporary Relevance
In the current scenario, the institute remains indispensable for the viability of the judiciary system. Without absolute presumptions, the reasonable duration of the process (Art. 5, LXXVIII, CF/88) would be unattainable, as each fact would require exhaustive evidentiary proceedings. The contemporary challenge lies in balancing the need for stability in legal relations—guaranteed by the institute—with the effective protection of fundamental rights, preventing the absolute presumption from becoming an instrument of material injustice.
Legal and Jurisprudential References
- Brazil. Constitution of the Federative Republic of Brazil of 1988.
- Brazil. Law No. 10,406, of January 10, 2002 (Civil Code).
- Brazil. Law No. 13,105, of March 16, 2015 (Code of Civil Procedure).
- Supreme Federal Court. Súmula No. 150. "Execution prescribes within the same period as the limitation of the action."
- Supreme Federal Court. RE 898060 (Theme 622) - General Repercussion on the prevalence of socio-affective paternity, discussing the limits of the presumption of paternity.
