Proof (law)

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A proof is the (positive) result of the finding of facts oriented evidence. It is an important means of judicial conviction in establishing the (“legally relevant ”) facts on which a court decision is based. Colloquially, the individual evidence is also briefly referred to as evidence.

Further sources of the ascertainment of the facts are in particular the declarations and submissions of the persons involved in the proceedings.

Evidence, prohibition of evidence

The basis of all evidence proceedings is that the underlying assertion or the fact to be ascertained requires evidence and that there is no prohibition of evidence to prevent it .

In judicial proceedings that are subject to the disposition maxim , in which the persons involved in the proceedings decide which facts are to be submitted to the court for decision and to what extent, all party allegations that are unilaterally raised are in principle not admitted according to the rules of the relevant procedural rules apply and are relevant to the decision to be made. In civil proceedings, the formal judicial confession according to § 288 ZPO has a special role in the oral hearing because it can only be revoked to a very limited extent.

In proceedings that are subject to the principle of investigation , such as criminal proceedings, the court determines the scope of the taking of evidence. Here, too, contradicting claims by the persons involved in the proceedings often lead to the need for evidence of claims. In criminal proceedings, for example, a party involved in the proceedings (defendant, defense attorney, public prosecutor) can use the right to apply for evidence under Section 244 of the Code of Criminal Procedure to force evidence of the correctness of an assertion.

No (counter) evidence is accessible to irrefutable legal presumptions ( Section 292, sentence 1, last half-sentence of the ZPO). However, the law only provides for this in Section 1566 (1) and (2) BGB . However, these are not assumptions in the strict sense, but fictions.

Obvious facts or judicial facts do not require any evidence . The latter are facts that the court gained knowledge of during its official activity, for example about the fact whether a decision in another matter has become final. Standard facts only require proof insofar as they are unknown to the court ( Section 293 ZPO). The court can, for example, judge a public opinion based on its own expertise when it comes to general necessities and the judge belongs to the relevant public.

An application for evidence may be rejected if a substantial allegation, which is to be proven in order to exonerate the accused, can be treated as if the alleged fact were true (alleged truth ). The legal concept of Section 244 (3) sentence 2 last alt. The Code of Criminal Procedure also applies to civil, administrative, social and financial court proceedings .

Evidence may not be taken or must be disregarded if the collection or exploitation of the evidence is contrary to a prohibition of evidence. Prohibitions are initially prohibitions on gathering evidence . These can consist of the fact that a certain fact is beyond the judgment of the court, for example in the case of an erased criminal record, or in the fact that legal provisions are violated in the process of obtaining the evidence, such as an unauthorized search or a confession obtained through torture. Prohibitions on the use of evidence , on the other hand, rule out that any knowledge obtained in such a way or that has become inadmissible after such acquisition can be used as the basis for a court decision. Prohibitions on the utilization of evidence always lead to a ban on collecting this evidence. The extent to which prohibitions on the collection of evidence lead to the nonetheless obtained evidence being used in the decision is a question of the individual case and is often the subject of controversy in case law and legal specialist literature.

Evidence Process

The evidence procedure usually takes place in a two- to three-act process involving different parties:

  • In proceedings that are subject to the disposition maxim, the proceedings begin with the commencement of evidence , with which one party names evidence for their assertion or the opponent for their inaccuracy . The evidence must be based on a fact that requires evidence. Furthermore, there may be no prohibition of evidence. In proceedings that are subject to the principle of investigation, the taking of evidence corresponds to the suggestion of evidence or the request for evidence, with which the parties involved in the proceedings can influence the scope of the taking of evidence.
  • The evidence is made by the court, usually in the strict proof method by which the after respective Procedure admissible evidence is collected in the levels required by this Procedure form. In principle, those involved in the proceedings have the right to be present. If the taking of evidence consists of the questioning of a person , they have the right to ask questions in accordance with the respective procedural rules, as well as the right to be heard about the result of the taking of evidence. If, on the other hand, the free evidence procedure is permissible to answer the question of evidence (never in the case of facts that directly form the basis of the court decision), the court can also use any suitable source of information, excluding the other parties involved, e.g. B. also use a phone call to come to a conviction. The implementation and the result of this procedure must be made known to the other parties involved.
  • On the basis of the evaluation of the evidence , the court, in the case of collegiate courts in secret deliberation, is convinced of the correctness of the evidence based on the result of the taking of evidence. In German case law, the principle of free assessment of evidence applies , i.e. In other words, with a few exceptions, there are no legal requirements as to how evidence is to be assessed. If the court has not been able to convince itself on the basis of the taking of evidence, the court decides, according to the burden of proof , to whose disadvantage the inexplicability of the question of evidence leads.

Evidence under German law

A German court can use its own perception (judicial inspection, certificate), third-party perception (witness) or third-party expertise (expert) to determine the facts of the matter.

Civil procedural law

Before a civil court are in strict evidentiary proceedings , only the following under German law evidence into consideration:

The official information is a substitute and can replace the hearing of witnesses or expert reports.

Criminal procedural law

In the main hearing in criminal proceedings , only the following evidence can be considered as strict evidence :

The strict proof is prescribed there for the establishment of the facts concerning the question of guilt and punishment .

Evaluation of evidence and standard of evidence

Proof is provided when the evidencing party convinces the judge of the correctness of the disputed factual assertion. The standard evidence is the judge's full personal conviction . Only a predominant probability would in principle not be sufficient for this. Since the introduction of the free judicial assessment of evidence (see Section 286 of the Code of Civil Procedure or Section 261 of the Code of Criminal Procedure), certain rules of evidence (e.g. the medieval “The mouth of two witnesses will always reveal the truth” ) no longer apply . The only decisive factor (in the words of the Federal Court of Justice ) is whether the judge is personally convinced of the truth of the allegation of fact, d. H. how credible or plausible he classifies evidence. For this purpose, the judge must relate all arguments for and against a factual assertion to the required standard of evidence. In doing so, he remains bound to the laws of thought logic and to probability based on experience . As a measure of proof, however, scientifically certain proof must not be required, but the judge must be satisfied with a degree of certainty that is useful in practical life, which does not exclude final (theoretical) doubts, but commands them to remain silent in practice. The current criminal law does not have its own rules of evidence, which limit the free judicial assessment of evidence, and civil law only in a few exceptional cases (e.g. the formal evidential value of the documentary evidence according to §§ 415 ff. ZPO, protocol according to § 165 ZPO, delivery).

Often, full evidence to convince the court cannot be produced, leading to a dismissal of the lawsuit. In certain exceptional cases, in which a dismissal of the action does not seem appropriate, the required level of evidence is reduced (e.g. in the area of ​​medical liability for fault and causality). Here, the so-called sufficient prima facie evidence ( Prima facie -Beweis ). The prerequisite for this is a typical course of events that occurs again and again and also probably existed. In this case it is sufficient that the observer is forced to imagine a certain course of events on the basis of a set of experience .

An even further reduced standard of proof applies e.g. B. the injunction . It is sufficient to substantiate this . In this case, only the predominant probability of the assertion is to be provided as a standard of proof.

Circumstantial evidence

When circumstantial evidence, the judge in the first step (ie about who wins no conviction of the main fact perpetration of the accused), but only by circumstantial evidence as auxiliary facts of evidence (such as the years of enmity of Angeklagtem and sacrifice, the threat of fact, the temporal and local conditions ). The main fact is then inferred from these auxiliary facts. The clues (also: evidence of evidence) thus only convey indications of the perpetrator, act, motive and possible evidence for the determination of the true facts . The conviction of the court can also be based on circumstantial evidence. It is then a circumstantial process . If several independent pieces of evidence suggest that an otherwise unprovable fact is present, this is referred to as a row of indicators . The interaction consists in the fact that both indicator 1 and indicator 2 both allow the conclusion to the main fact. The chain of circumstantial evidence is to be distinguished from this, which is present if several circumstantial evidence (building on each other) indicate a fact that is relevant to evidence.

Immediacy in the evidence process

The immediacy of the evidence procedure is essential for German procedural law. The trial court has to draw its conviction from the oral hearing. Evidence that was not collected by the trial court itself can only be introduced into the process in exceptional cases. As a rule, the taking of evidence cannot be transferred to a court other than the judging court. In criminal proceedings, the evidence collected by the police / tax authorities and the public prosecutor's office cannot be easily introduced into the process. So z. B. a police interrogation protocol in the main proceedings cannot simply be read out as documentary evidence. In civil proceedings, on the other hand, due to the disposition maxim applicable there, it is quite possible, for example, instead of the questioning of a witness, to have the files of criminal proceedings, which already contain the testimony of the evidence on the subject of the evidence, consulted by the court and thus on the subject of the finding of evidence by the To make court. The protocol can then be used as so-called documentary evidence like other evidence. However, the content of the minutes (completeness and correctness of content) is to be re-determined by the court in the context of the assessment of the evidence on its own responsibility and without being bound by any statements contained in the minutes.

Cross-border gathering of evidence


The gathering of evidence about requested judges in other member states of the European Union (with the exception of Denmark) is governed by the EU Evidence Regulation ( EG-BewVO ) issued within the framework of judicial cooperation in civil matters .

After that, the following possibilities of taking evidence are given:

  • Classic taking of evidence by the foreign court requested in the context of administrative assistance (Art. 10 ff. EG-BewVO);
  • Execution of the taking of evidence by the trial court abroad (Art. 17 EG-BewVO);
  • Collection of evidence by means of video conference (Art. 10 Para. 4 EG-BewVO);
  • Taking of evidence by the requested foreign court in the presence of the national judge (Art. 12 EG-BewVO).

The regulation itself does not regulate the priority of any of the methods described.

Effects on German Evidence Law

It is controversial whether the German procedural and constitutional law, despite the principle of "freedom" to choose among the procedural variants of Regulation (EC) 1206/01, still makes the primary requirement of the German criminal court judge to choose one of the variants in which he can get an impression of the witness heard abroad in order to enforce the principle of direct evidence (according to § 343 ZPO).


The term evidence refers to the situation of a defendant with regard to the provability of an accused criminal offense, e.g. For example, if the evidence is overwhelming, an acquittal is hardly possible.

Evidence is gathered by the law enforcement agency (especially the public prosecutor and the police) during the preliminary investigation and presented to the court.

Proof in the criminalistic sense

To prove means to present a fact to the judging court by means of facts that are convincing and reproducible as often as required in such a way that a reasonable doubt about the facts assumed by the criminal prosecution authorities in the preliminary assessment of the crime is not possible.

Forms of Evidence

Direct evidence

If a fact to be proven results directly from another fact, one speaks of a direct proof.

Indirect evidence

If a fact that is relevant to the decision results only indirectly from another fact, one speaks of an indirect proof. The indirect proof is also referred to as circumstantial evidence or evidence of signs or auxiliary fact.

Types of Evidence

Proof of identity

In the case of personal evidence, the evidence is the person (e.g. expert, witness, accused). It depends on the human perception, the reproducibility of the evidence-relevant perceptual content, as well as the truthfulness of the statement.

Material evidence

Under physical evidence to all counts on material evidence or based on objects arguments (eg. As judge any inspection or certificate).

Common law

In the US litigation obtaining evidence in a preliminary judicial investigation (carried Discovery ), the assessment of evidence, however, to the hearing by the judge or the jury ( jury ).


  • to the administrative process:
    • Hans-Peter Vierhaus: “Law of Evidence in Administrative Processes”, Munich 2011, Verlag CH Beck, ISBN 978-3-406-62025-6
  • to civil proceedings / labor court proceedings:
    • all comments and manuals on the Code of Civil Procedure (Germany) (ZPO) and the Labor Court Act (ArbGG)
    • Holger Jäckel: The law of evidence of the ZPO - A practical handbook for judges and lawyers . 1st edition. Kohlhammer, Stuttgart 2009, ISBN 978-3-17-020793-6 .
    • Egon Schneider / Lotte Thiel: Law of Evidence in Civil Procedure. Basics and sources of error , 1st edition, Münster 2008, ZAP-Verlag, ISBN 978-3-89655-377-5 (also available as an e-book)
    • Rüdiger Zuck: Constitutional framework conditions for evidence based on civil procedure -
      • Basics , NJW 2010, 3350
      • Witness evidence , NJW 2010, 3494
      • Expert evidence , NJW 2010, 3622
      • Approval , NJW 2010, 3674
    • Volkert Vorwerk: Taking of evidence abroad: New ways for the German trial. The EC Evidence Regulation and the principle of direct evidence. , Anwaltsblatt , issue 05/2011, 369 (PDF file; 3.99 MB)

Web links

Individual evidence

  1. Hans-Joachim Musielak / Wolfgang Voit : Civil Procedure Code , 12th edition 2015, § 284, Rn. 3.
  2. Michael Selk: BGH: A controversial fact must not only superficially be assumed to be true! May 13, 2018
  3. VGH Munich, decision of January 25, 2016 - 10 ZB 14.1486
  4. BSG, judgment of 8 September 2010 - B 11 AL 4/09 R no. 18th
  5. BFH, decision of December 16, 2016, XB 41/16 para. 16
  6. quoted for example in Johann Wolfgang von Goethe : Faust I , verse 3013 f.
  7. Holger Jäckel: The law of evidence of the ZPO , Verlag Kohlhammer, p. 144.
  8. a b c Regulation (EG) 1206/01 of May 28, 2001 of the Council on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (OJ EC of June 27, 2001, No. L 174 P. 1).
  9. Volkert Vorwerk: Taking of evidence abroad: New ways for the German trial. The EC Evidence Regulation and the principle of direct evidence. ( Memento of December 16, 2011 in the Internet Archive ), Anwaltsblatt , issue 05/2011, p. 369 (PDF file; 3.99 MB).
  10. ^ Rolf Ackermann, Horst Clages, Holger Roll: Handbuch der Kriminalistik , Boorberg, 3rd edition, p. 48.