Límites a la iniciativa probatoria del juez para ordenar prueba de oficio frente al principio de la carga de la prueba.

Abstract

The ex officio evidence is currently one of the topics that has generated the most debate among the forum's proceduralists. Thus, one sector has raised the need to provide the judge with evidentiary powers to search for the truth of the disputed facts and another sector has vehemently exposed its criticisms and rejection of said powers for considering them authoritarian. The general objective of this research work is to define what should be the limits to the evidence initiative of the judge, when decreeing ex officio the taking of evidence against the burden of proof, in order to ensure in the process, the full validity of the fundamental rights and guarantees of the procedural parties. The methodology used was the legal theorist, with a historical, comparative and documentary approach, to analyze the doctrine and the historical antecedents of the process, the evidence, its object, its purpose, its principles, the ex officio evidence, its comparison with legislation of other States and examine the procedural currents for and against the ex officio test. The results show that the ex officio evidence is the tool that the judge has to approach the truth of the controversial facts in the process, in order to reach, through a decision based on true facts, the superior ideal of justice and social peace . In conclusion, the need to define the limits that must counteract an arbitrary and abusive exercise of the judge's evidentiary initiative was determined.