Evidence in Civil Law - Germany

Front matter

AO LOCALIS

Evidence in Civil Law - Germany

Authors: Christian Wolf Nicola Zeibig

Foreword

The law of evidence is one of the most important cornerstones of the civil procedure law of each country. In a very simple sense it is a cornerstone, because in most civil actions the parties do not only dispute over questions of law but also over the contested facts of the case. Even more in a normal civil process the questions of law will be much less contested and in doubt, than the questions of fact. One would not go too far saying that nearly in each process the law of evidence plays an important role.

In a more sophisticated sense, the law of evidence is a very important cornerstone of the civil procedure law for two reasons. The first reason is the interference between the substantive law and the law of evidence. Substantive law answers normally what must be proofed and the law of evidence answers the question how this can be done. Substantive law and the law of taking evidence influence each other. To give one example: Is it sufficient that a certain cause possibly created the alleged damage or must the judge be totally confident that the certain cause and nothing else has created the damage? If only the plausibility is sufficient, tort law can protect other legal values (for example the environment) as if certainty is necessary.

The second reason is the attitude of the society towards the state and the individual. Maybe more than in other fields of the civil procedure law, the law of evidence gives us an answer to the question whether we see the civil procedure more as an instrument to protect individual rights or to enforce the law. Do we strengthen the capacity of the individual to protect his or her right or do we bank on the judge and the state? Is the civil procedure law more written through the glasses of the parties or through the glasses of the state and in the interest of the judges?

Europe has a western society with common roots, we share the same problems in the law of taking evidence. But not only in small details we may have differences regarding the attitude and solutions of the same problems. The project of taking evidence in Europe is a single opportunity to learn from each other and to narrow our views and understanding. We are very grateful to be given the unique opportunity to be a part of this project. Our special thanks go to Vesna Rijavec and Bettina Nunner-Krautgasser for inviting us to contribute to this project. Furthermore we would like to thank Katja Drnovšek for her tremendous support.

Christian Wolf and Nicola Zeibig

Evidence in Civil Law — Germany

C. Wolf & N. Zeibig LOCALIS Contents 1 od: 12 A evista tetas EE recente vests evaias wus ttiits castes seeanio evans cites ean 1 1 Fundamental Principles of Civil Procedure ....0.... eee eeeeeeeeeeeeeeeeeeeeeees 1 1.1 Preliminary Remark: The General Understanding of Procedural 1.2 Principle of Free Disposition of the Parties and Officiality Principles siias rsen a Gata eis a wu disease nia S 13 1.4 Hearing of Both Parties Principle (audiatur et alter pars) — Contradictory Principle... eee cese cee nen nnennennnennnnnnnnnnnnnnnennneennennn nen 15 1.5 Principle of Orality — Right to Oral Stage of Procedure and Principle of Written Form... cece cee csecseeeeeeeeeeeeeeeeeeseeseenseenseesaeenaes 16 1.7 Principle of Public Hearing... ee ee cee cese esse cneeceeeeeeeeeseeeeeeeeeeeeeens 18 1.8 Principle of Pre-trial Discovery... ee ee cece esecneecneeeeeeeeeeeseeeeeeneeenens 18 1.9 Other General Principles... eee eeceeeesecee esse cess ceeceeeeeeeeeeeeeeeeeeeanees 19 2 General Principles of Evidence Taking .00.... eee eceeeeeseeseceseeeseenseenaee 20 2.2 Relevance of Material Truth 0. eee eeee ese cseeceeceeeseeseeseeeeeerenseens 22 3 Evidence in General... nennen 24 3.3 Minimum Standard of Proof 3.4 “Means Of Proof osoensis he E e 3.5 Rules of Evidence for Rights Arising out of a Cheque or Bill of Exchange epeei orsavel en e ETSE EEEE al sn 28 3.6 Evidentiary Value of Various Types of Evidence in One Proceeding niere eo E E aR REEE ke 29 3.7 Parties’ Duty to Produce and Deliver Evidence... 29 3.9 Evidentiary Value of Judicial and Administrative Decisions as VION Osetia cos cces Gs sa dhdiee inchs geuretiesd e EE E E E EE 31 4.1 Doctrine Behind the Burden of Proof Rules under German Civil Procedufe: essen sas fens ova cet E E EREA 31

4.4 Regulations Regarding the Duty to Contest Specified Facts and VIG CIC ase isa cosee snes scasanccaccuapeuses E E EAA 33 ii | Contents

References E E ETE A E EES eine ees ee 55

>= Evidence in Civil Law — Germany I LEX a C. Wolf & N. Zeibig LOCALIS