Findings (expert)

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The expert reports a finding in his report . The findings result from the surveys (findings and descriptions) from the previous findings. Based on the findings, the expert can only provide binding technical information on the factual question that the court or an authority has put to him.

Linguistic derivation

The word finding in terms of " perception " or " finding " was around the 17th century " are " (judge recognized) derived, in turn, in Old High German " bifindan " "(mhd .: bevinden find" meaning " "," experience "," get to know ") has the origin.

Assessment

The expert (SV) is an organ of the court or authority in Germany, and an assistant to the court or authority in Liechtenstein and Austria.

The expert opinion is " evidence " in official or judicial proceedings (see, for example, § 402 German ZPO ; §§ 351 ff. Austrian ZPO ; §§ 371 ff FlZPO ). The expert draws legally relevant conclusions from the findings and justifies them (expert report).

The expert is appointed by the court and the authorities in order to provide a (mostly written) opinion in the subject area in which he has special expertise in order to facilitate the decision-making of the court or authority. To this end, the expert collects, examines, researches and explains facts . Like all other evidence, the expert's report is also subject to free judicial / official evidence assessment . Are the basis for the assessment of the report as evidence

of the report. The freedom to assess evidence means an important corrective, since the judge (the authority) can and may assess the results of the expert opinion evidence according to his or her free conviction - without being bound by rules of evidence. An expert opinion is intended to supplement the technical and specialist knowledge of the court or the authority so that a correct, appropriate and binding decision recognized by the parties can be made in an individual case.

The expert communicates principles of experience and establishes facts on the basis of the questions put to him. The expert does not necessarily have to be certified by the court ; instead, any person with the relevant specialist knowledge can in principle be appointed by the court as an expert. The expert's report is of considerable practical importance in the procedure. Therefore, cooperation with the expert with the parties is essential and should receive special attention.

Finding

The essential part of the expert opinion is the findings (findings, conclusions).

The establishment of evidence-relevant facts is the recording of the findings. The activity itself is also referred to as " diagnosis ".

In the findings, the expert determines in abbreviated form how a situation is present based on the principles of experience and the established facts or the expert sees it with his specialist knowledge. The assessment of how subsumption under the applicable laws is to be made, however, is the sole responsibility of the court or authority ( legal question ).

The finding is therefore an inseparable part of every report and has a very special position within the report due to its legally relevant determination.

Summary and overview

The expert always provides findings and reports . He establishes facts that are relevant to the evidence (recording of findings), summarizes them (findings) and draws legally relevant conclusions from the findings and justifies them (report).

An expert opinion is

  • completely, if it answers all the questions asked by the court (if these were admissible - legal questions),
  • Comprehensible if the opinion can be understood by the court and can examine and assess the thought processes of the expert, which led from the finding to the expert opinion, and
  • conclusive if, after checking for completeness and traceability, it still appears convincing and free of contradictions (if different opinions are admissibly represented on a scientific dispute, the expert must explain why he is based on one argument and not the other).

The report of an expert is subject to the free assessment of evidence by the court or the authority.

literature

See also

Individual evidence

  1. ↑ for Austria and Liechtenstein:
    • Fasching, Hans W., Commentary on the Laws of Civil Procedure , III, 467 f., 486, 495; Manz publishing house
    • Sperl Hans, Textbook of Civil Law , 445;
    • Rechberger / Simotta , Outline of Austrian Civil Procedure Law , margin no. 634; Manz Verlag et al .;
    Legal opinions differ in this regard, but it is particularly recognized that the expert in Austria and Liechtenstein is not an “organ” of the court.
  2. ↑ This is of considerable importance with regard to the state's liability for the work of the expert. With regard to the expert as a non-official expert in Austria ( official expert ), he may also act as a body of the authority.
  3. ↑ The practice of some lawyers to send a secretary or a substitute ( trainee ) who has not dealt with the case or are unprepared for the expert report can therefore represent a significant deficiency and give rise to liability on the part of the lawyer.

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