A PROPOSAL FOR RATIONAL ASSESSMENT OF THE FACTS IN THE CIVIL PROCESS BASED ON JUDICIAL PRESUMPTION

Abstract

This paper analyzes the Chilean civil procedural proof system and its inability to be denoted as purely based on legal or fixed valuation, approaching more towards intuitive conviction than sound critique. This means that in making decisions, the judge adopts a propositional attitude of involuntary and irrational belief about the facts, implying an apparent disregard for the duty to rationally motivate them. In response, the use of judicial presumption is proposed, not as another source of evidence, but as a rational construction that connects evidence through links and allows inferring unknown facts without abandoning legal tariffs. This involves a motivation of the quaestio facti on two levels, regarding those proofs that suffer from legal tariffs and then as a rational linkage of all the evidence. Thus, the judgment on the facts becomes a motivated one, moving from the judge's attitude of belief to one of acceptance and enabling an intersubjective analysis of the reasoning.