Proof of exploration
An investigation evidence is a request for evidence that aims to find out facts through the requested taking of evidence that enable a more precise presentation or the naming of further evidence . In addition, evidence is provided for unsubstantiated allegations or assumptions; that is, the claims that can supposedly be proven are kept very vague, indefinite, and general.
Civil law in Germany
Proof of investigation is generally inadmissible in German civil proceedings. The principle of negotiation applies (in contrast to the principle of official investigation, which applies, for example, in criminal proceedings ), whereby it is the task of the parties to introduce the facts into the legal dispute ("to present" - see also the party lecture ). The judge is fundamentally bound by this lecture and, even if the lecture sounds improbable, may not conduct his own investigations. He has to check on the basis of the submission alone whether the requirements of the legal provisions relevant to the case are met. For this purpose, the presentation must be concrete enough to allow conclusions to be drawn about the existence of these prerequisites ("factual features").
Example: The plaintiff claims the defendant owes him € 100. This was "so agreed". He provides evidence of this through the testimony of his wife.
The legal requirement for a claim by the plaintiff is a contractual arrangement between the parties. The assertion “so agreed” is too vague to be able to conclude that such a contractual arrangement exists. This is because it merely describes the constituent element “contract” in other words, instead of making clear how the contract is supposed to have come about. In this case one speaks of an unsubstantiated lecture. The plaintiff threatens to lose the litigation. Obviously, the evidence serves to first provide the plaintiff with the concrete factual material from which the alleged agreement arises through the questioning of the witness. However, it is up to the plaintiff to introduce this into the process and not up to the court to investigate (“investigate”) it by taking evidence. Therefore, the purpose of the taking of evidence must not be to open up to the parties the sources of knowledge on the basis of which they could present facts. A taking of evidence in this regard and thus also the investigation evidence are therefore inadmissible.
In the example mentioned, the plaintiff would have to describe in concrete terms when, where and under what specific circumstances the agreement was supposed to have been reached, for example: “I met the defendant on April 10, 2005 at my home. There we talked about our joint project XY. Among other things, we came to talk about the payment, because of which I had sent the letter attached to the complaint to the defendant a few days earlier. At our meeting, the defendant suggested that I pay me another € 100. Because I urgently need the money, I agreed to it. "
In this case, the evidence provided by the wife's testimony no longer serves to provide the plaintiff with specific factual material, but rather to make the correctness of the specifically alleged facts verifiable for the judge.
Another example: K has ordered goods from company V. V is suing K for payment of the purchase price. According to the rules of evidence in civil proceedings, K must prove that he has paid. He can not claim that proof of his payment is (also) to be provided by submitting the V's accounting documents because V is obliged to keep such data.
In many cases, especially when it comes to internal facts such as intentions or ideas of a person, the investigation evidence is difficult to distinguish from the admissible request for evidence. For example, if the plaintiff claims that the defendant fraudulently deceived them, they will often be unable to make more than one vague allegation. Naturally, he cannot know or say anything about the thoughts and ideas of the defendant.
Criteria for the - often difficult - demarcation between inadmissible research and admissible application for evidence can be the substantiation of the lecture on the one hand and the fact that the lecture is "out of thin air" on the other. In case of doubt, the evidencer must explain how he came to the assertion, for example, from which source the assertion originates. In this way, the court can gain clues as to whether the evidence serves to prove a genuine allegation or a prohibited investigation.
The judge must point out the inadmissible evidence to the plaintiff and, if the plaintiff does not improve his submission, justify in the judgment why he ignored the request for evidence.
Tax procedural law
Proof of exploration is also inadmissible. The request for evidence must describe the specific evidence subject and thus the facts about which evidence is to be raised. The plaintiff does not do that if he only requests a general gathering of evidence without specifying the subject of the evidence. As part of the judicial notification obligation, the plaintiff is then asked to make improvements.
