Insurance under oath

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The now widely considered affidavit (in short "E. V." or "EV") known affidavit , the traditional spelling affidavit is

Colloquially, the EV was often used synonymously with the process in German enforcement law , which was originally called the oath of disclosure and since January 1, 2013 asset information and in which it plays an important role.

An affirmation in lieu of an oath must be made before a legitimized authority. Other assurances or declarations designated as affidavits - as in the political arena to the media - have no particular legal relevance.

Essence of affirmation on oath

The affirmation in lieu of an oath is a means of providing evidence, whereby factual statements are made and their accuracy is specially assured. A written formulation of the factual information to be submitted is possible. In addition, the correctness of the information must be affirmed in lieu of an oath. The wording of the insurance is partly prescribed by law for the individual applications.

The affirmation on oath was first defined in the legal norms of the German Reich founded in 1881 and standardized as a method of procedure. Since 1872, the criminal liability of false insurance has been regulated in a manner similar to perjury in §156 to §161 of the StGB, which is still valid today almost unchanged. Loss of civil rights , however, ceased to be part of the penalty in 1970.

Areas of application

In civil procedure law , the affirmation on oath is instead of evidence in cases in which prima facie evidence is permitted ( Section 294 ZPO). The affirmation of an oath is also often used in administrative law when it comes to confirming the correctness of a statement to an authority.

In legal correspondence, the term affidavit is also used for an EV .

Formerly referred to as the oath of disclosure and is still often called in colloquial terms today, it is now called the assurance of the correctness and completeness of a debtor's financial statement in the context of foreclosure under civil law according to Section 802c (3) of the Code of Civil Procedure (ZPO) or according to Section 284 (3 ) of the Tax Code ( AO)

Since, in contrast to the '' 'oath' '', it can also be given out of court, unsolicited and in writing without the swearing-in ceremony, the affidavit is an often used means of giving a statement in the public opinion-forming process more persuasive power. There are cases of affidavits that have become famous, such as the Barschel affair in 1987 or the Christoph Daum scandal in 2000.

Possible applications of an affidavit are also:

  • the affirmation by oath instead of the income of an administration according to § 259 of the German Civil Code (BGB) or of the completeness of a list of an epitome of objects according to § 260 BGB
  • the affirmation on oath instead of postal voting, in which one assures that the voting slip has been filled out personally.

Competent authority for the acceptance of the insurance

The authority of an authority for the acceptance of an affidavit in lieu of an oath presupposes a special authorization of the authority for acceptance. For the submission of the affidavit before an administrative authority, § 27 VwVfG or the corresponding country standard or § 23 SGB ​​X applies .

In criminal proceedings, the public prosecutor and the police are regularly eliminated as the competent authority; In criminal proceedings, criminal courts can not take an oath from a suspect , but can take a witness from a witness.

In civil court proceedings , the court may accept the affirmation of parties, witnesses and other parties in lieu of an oath, provided that the law provides for substantiation, for example in the case of Section 294 of the German Code of Civil Procedure (ZPO), or the court so requests within the framework of the free evidence procedure However, if the formal evidence process is necessary (e.g. in the case of controversial statements on party allegations), the acceptance is not permitted.

Criminal consequences of wrong insurance

Particular legal significance is the affidavit in that after § 156 criminal code (CC) delivering a false affidavit a criminal statement offense represents. Accordingly, giving a false affirmation on oath (1st alternative) or invoking such an affirmation (2nd alternative) vis-à-vis a competent authority is punishable by up to three years imprisonment or a fine . In the case of an affidavit in lieu of an oath, which refers to a financial report of the debtor according to § 802c para. 2 ZPO, only facts are relevant that are required according to § 802c para. 2 ZPO, i.e. in particular the debtor's entire current assets. Incorrect information about debts or worthless objects, for example, is irrelevant under criminal law. A voluntarily given (false) insurance is possibly unpunished if the court does not request it. If a deliberately false insurance is taken before the competent authority, the criminal liability according to § 156 StGB does not apply; however, other criminal offenses could be considered, such as fraudulent proceedings .

The negligent false affidavit in lieu of an oath is punishable by up to 1 year imprisonment or a fine in accordance with Section 161 (1) StGB. Negligence can be, for example, negligence in submitting the declaration, for example when deliberately signing a false affidavit without reading the contents or when inquiries are necessary for the voluntary submission of the insurance for the correct contents, but these are omitted.

If the person making the statement corrects the intentional false affidavit in good time, the court can mitigate the punishment or waive the punishment entirely, Section 158 (1) StGB. If a negligent false affidavit is corrected in good time, however, the penalty is waived in accordance with Section 161 (2) StGB.

The correction does not necessarily have to be based on free will, it depends solely on the correction. It must contain a truthful and complete description in all essential points and a distance from the earlier statement; a revocation is not sufficient if there is no other right to refuse to testify. Correction can, if necessary, even be carried out in special circumstances through coherent behavior. However, it must be addressed to the receiving office or to the office that checks the affidavit (e.g. court). In addition, the correction must also have been made in good time (Section 158 (2) StGB).

The attempt of willful or negligent false affirmation in lieu of oath is not punishable. Attempting to incite a false affirmation in lieu of an oath is, however, punishable under Section 159 of the Criminal Code.

Asset information in the context of foreclosure

Insurance on oath instead of accountability

Anyone who is obliged to provide certain information (accountability) should be urged to adhere to the truth instead of the truth by an oath ( Section 259 (2) BGB). The debtor is obliged to do so if circumstances suggest that he has not fulfilled his obligation with the necessary care. It is mostly about information about other circumstances and not about information about one's own financial circumstances.

Proof of evidence by means of an oath

Furthermore, the affirmation in lieu of an oath plays a role in establishing credibility ( Section 294 (1) ZPO), insofar as the law permits such. To this end, the evidencing party can also rely on an affirmation in lieu of an oath (even his own) as a means of substantiation to prove an actual allegation. The affirmation on oath does not require any special form.

Declaration of independence for dissertations

In the federal states of Baden-Württemberg ( Section 38 HSchulGBW), Bavaria ( Section 64 BayHSchG), North Rhine-Westphalia (Section 63 HG NRW) and Saarland ( Section 69 HSchulGSL), the colleges and universities are allowed to take an oath instead of the independence of the provided Request and approve dissertation.

Legal bases

Norms of German law, which contain regulations about the insurance in lieu of oath:

See also

Web links

Wiktionary: Insurance in lieu of oath  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Section 156 of the Criminal Code. False affidavit. Retrieved June 30, 2020 .
  2. ↑ Section 161 of the Criminal Code. Negligent wrongdoing; negligent false affirmation in lieu of oath. Retrieved June 30, 2020 .
  3. ↑ § 261 BGB. Change of affidavit; Costs. Retrieved June 30, 2020 .
  4. ↑ Uwe Barschel (May 13, 1944 - October 11, 1987). Retrieved June 29, 2020 .
  5. ↑ The chronicle of the Daum / Hoeneß affair . In: FAZ . October 12, 2000, ISSN  0174-4909 ( faz.net [accessed June 29, 2020]).