PROCEDURAL NOTIONS OF THE INTERPRETATION OF EVIDENCE: THE PROBLEMATICS OF THE MAGISTRATE'S OFFICE ACTION AND THE ANALYSIS COMPARED TO PORTUGUESE LAW

Abstract

This article explores the issue of the magistrate's official role in the production of evidence, with a comparative focus between the Brazilian and Portuguese civil proceedings. The objective is to investigate the limits of the judge's instructional power, discussing the tension between judicial activism and the preservation of the procedural principles of impartiality and adversarial proceedings. The research uses a comparative analysis methodology between the legislation and doctrines of both countries, examining judicial decisions and procedural rules that guide the conduct of the evidentiary phase. In the Brazilian context, the Civil Procedure Code imposes restrictions on ex officio action, requiring motivation based on public order, while in Portuguese law the judge has greater discretion. The study aims to demonstrate that, despite normative differences, there is a common effort to balance the magistrate's power with the parties' right to produce evidence, observing the duty to provide reasons. The analysis suggests the need for judicial self-restraint and proposes a critical reflection on the role of the judge in facing evidence, arguing that ex officio intervention must always be guided by respect for constitutional and procedural guarantees.