Burden of proof
The burden of proof regulates procedural risks and obligations of proof . The objective or material burden of proof (burden of determination ) determines which party bears the risk that an allegation of evidence cannot be proven ( non liquet ). The subjective or formal burden of proof (better: burden of proof ) determines which party it is incumbent on at a certain stage of the process to offer evidence for their assertion.
Principles of the burden of proof
Normally, each party in the civil litigation bears the burden of proof for facts that are part of a legal norm that is favorable to them (so-called Rosenberg's formula , in short: What should be of use to me, I must also assert and prove.). Therefore, the distribution of the burden of proof is often justified in substantive civil law (especially in the BGB ), because this contains bases for claims , auxiliary norms , defenses and objections . The facts that the facts of a claim norm (for example, conclude a purchase contract to fill in), must regularly the party that derives a claim (in the example as to payment of the purchase price) from it, recite ( Beibringungsgrundsatz ) and - if the opponent denies - to prove. The opponent, on the other hand, must assert and prove that he is entitled to any counter rights or objections (e.g. fulfillment , BGB - he has already paid, etc.).
The objective burden of proof and the burden of proof often coincide in civil proceedings, ie they meet with the same party. The burden of proof can, however, be transferred to the opponent if the party burdened with evidence brings in evidence that can substantiate the conviction of the court. In this case it is up to the opponent to remove this conviction. The burden of proof controls the taking of evidence and the assessment of the evidence at the same time: The party burdened with evidence must first provide the main evidence . It is provided when the court has gained the degree of conviction required by law of the correctness of the allegation of evidence (usually full conviction, but sometimes also mere credibility ). Only then does the opponent have to provide counter- evidence - the burden of proof has thus changed. The counter-evidence is provided if the opponent prevents the court from attaining the required degree of conviction; for this purpose it is sufficient with the rule of evidence of full conviction if doubts are sown about the correctness of the evidence assertion. The main evidence is then shaken. If the main evidence fails from the start, the court will fail to take evidence of the counter-evidence because the burden of proof has never shifted to the opponent.
The basis of any evidence in civil proceedings is first of all the possibly mutual presentation of the alleged factual facts.
For criminal law , the maxim of Roman law has applied since antiquity : necessitas probandi incumbit ei qui agit ( Latin : the prosecutor has the burden of proof ). The historical Latin name for the burden of proof is Onus probandi .
Burden of proof for official investigations
In court proceedings to which the principle of official investigation applies, such as in administrative proceedings, the material burden of proof is of particular importance, since it is also decisive here, while the formal burden of proof is irrelevant due to the official investigation. The parties are, however, called upon to do their utmost to support the investigation of the facts in their own interest.
One speaks of a reversal of the burden of proof when it is not the claimant who has to prove the prerequisites for his claim, but rather the opponent has to prove their absence. A reversal of the burden of proof is mostly based on a legal presumption .
- Example: If a plaintiff sues for a purchase price, he must prove that he has agreed on the amount of the purchase price demanded of him if the defendant disputes such an agreement. However, if the plaintiff submits a written sales contract with corresponding content, the defendant must now prove that the purchase price stated there is incorrectly stated, provided he cannot refute the presumption of completeness and correctness.
- Literature on the subject of the burden of proof in the catalog of the German National Library
- The burden of presentation and proof for services rendered in the architect's fee process ( PDF ; 133 kB)
- omsels.info: online commentary on competition law, chapter burden of presentation and proof
- Klaus Reichold in: Zivilprozessordnung. With the Courts Constitution Act, the introductory laws and European law regulations (EuGVVO, EheVO, NotellungsVO, BefDG, AVAG). Comment. Co-founded by Heinz Thomas . Continued by Hans Putzo together with Klaus Reichold, Rainer Hüßtege. 25th, revised edition. Beck, Munich 2003, ISBN 3-406-50613-5 , § 322 Rn. 23.
- Transnationally recognized: Trans-Lex.org
- Rehberg, Markus: Success in the exam - using the example of the beginner's exercise in civil law, in: Bonner Rechtsjournal (BRJ) 2012, p. 182 (185)