Presumption (law)

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A legal presumption regulates the distribution of the burden of proof in jurisprudence .

With the application of the law, the existence of a certain fact is not determined by means of a presumption by means of the taking of evidence , but its existence is assumed to be given by virtue of legal provision (presumed). If the presumption is irrefutable or if proof to the contrary is not successful, the judge must base his decision on it ( Section 292 ZPO).

In addition to civil litigation , this rule applies accordingly in labor court proceedings ( Section 46 (2) sentence 1 ArbGG), in administrative jurisdiction ( Section 173 VwGO) and in social justice ( Section 202 SGG).

Legal presumption

Presumption of fact and law

A legal presumption can relate to facts ( praesumtio facti ) or to legal presumptions derived from a fact ( praesumtio iuris ).

If a pledge is in the possession of the pledger or the owner, it is assumed that the pledge was returned to him by the pledgee ( Section 1253 (2) sentence 1 BGB). From the fact of possession of the pledge, the fact of the return is inferred or the return is assumed.

Legal presumptions include, for example, Section 1006 (1) sentence 1 BGB: “In favor of the owner of a movable thing (fact) it is assumed that he is the owner of the thing (legal presumption).” Or Section 891 (1) BGB: “Is in the land register for someone registers a right (fact), it is assumed that he is entitled to the right (legal presumption). "

Refutable and irrefutable presumption

Presumptions can be refutable ( praesumtio iuris tantum ) or irrefutable ( praesumtio iuris et de iure ). As a rule, they are rebuttable, unless the irrefutability is legally ordered ( § 292 sentence 1 ZPO).

A rebuttable legal presumption reverses the burden of proof . Who is designated as the author of a work, is acc. § 10 UrhG is regarded as the author of the work until proven to the contrary (i.e. rebuttable ). Another example is Section 477 of the German Civil Code (BGB) if a purchase item shows a material defect within six months of delivery . In favor of the buyer, the defect is presumed upon delivery. If necessary, the seller must provide full evidence that the defect was not present when the item was handed over to the buyer.

Because a rebuttable presumption of law leads to a reversal of the burden of proof and not just a reversal of the burden of proof, proof to the contrary is necessary in order to refute it . Evidence must therefore be presented which fully convince the court of the contrary .

If, on the other hand, a presumption is irrefutable, proof to the contrary is inadmissible. A gathering of evidence and the associated difficulties in providing evidence are precisely to be avoided.

An example of an irrefutable presumption is in the divorce law § 1566 Abs. 2 BGB: "It is irrefutably presumed that the marriage has failed if the spouses have been separated for three years." So it does not matter whether in the specific case Marriage may not have failed despite the long separation . Rather, it is precisely the purpose of the law that the court does not have to make such assumptions.

Demarcation

Actual guess

Actual presumptions ( spurious presumptions , praesumtiones facti ) do not fall under Section 292 of the ZPO. They were developed by jurisprudence and are usually attributed to prima facie evidence or treated according to the rules on free judicial evidence assessment ( § 286 ZPO). Both methods have in common that they start from certain empirical laws, empirical principles and simple empirical principles.

An actual presumption (actually better presumption about facts ) exists when a court, based on its own or expert experience of proven facts ( circumstantial evidence ) , can infer unproven facts by way of induction . For example, from the fact that the temperature was well above zero at a certain point in time, based on general experience of the properties of water, it can be concluded that a certain person could not have slipped on black ice at this point in time. In this case it is said that there is an actual presumption that there was no black ice at the place in question . If an infringement of the law is committed via an internet connection, an actual presumption that the connection owner was responsible is not justified if at the time of the infringement other people (also) could use this connection.

If the existence of an actual presumption is affirmed, this leads to a reversal of the burden of proof . It is up to the opponent to destroy the convictions of the court by submitting further evidence. However, it can only be about shaking one's conviction (i.e. sowing doubts in court), but not proving the opposite (justifying full conviction of the opposite).

fiction

The legal fiction must be distinguished from the presumption . Fiction takes for granted a state of affairs which in reality does not exist. This makes it possible to derive legal consequences that would otherwise not exist .

Example: Only those who live at the time of the inheritance can become an inheritance. Anyone who was not yet alive at the time of the inheritance but was already conceived ( nasciturus ) is considered to be born before the inheritance and can therefore, as an exception, still be an heir ( § 1923 BGB; § 22 in conjunction with § 536 öABGB or flABGB ) .

In contrast to the assumption, the fiction is not refutable. As a result, the fiction resembles the irrefutable assumption. The difference is that an irrefutably presumed fact can also be present in reality, while fiction dictates that facts that do not actually exist are to be regarded as present.

Rules of interpretation

Interpretation rules such as § 154 Paragraph 1 BGB, § 329 BGB or § 2304 BGB stipulate the meaning of a declaration of intent in a certain direction "in case of doubt" if no conflicting intent can be determined by taking evidence. If another will is determined, the rule of interpretation is not refuted, but inapplicable.

See also

literature

  • Leo Rosenberg , Karl-Heinz Schwab , Peter Gottwald : civil procedure law , 15th edition Munich 1993, 660 ff.
  • Hanns Prütting : Present problems of the burden of proof. An investigation of modern theories of the burden of proof and their application, especially in labor law , Munich 1983, 23 ff.
  • Heribert M. Anzinger: Prima facie evidence and actual presumption in income tax law. Baden-Baden, 2006. ISBN 978-3-8329-2298-6
  • Christian Wohlfahrt: The presumption of direct effect of Union law. A plea for abandoning the criteria of sufficient precision and unconditionality. Contributions to foreign public law and international law, Springer-Verlag Berlin Heidelberg, 2016. ISBN 978-3-662-48980-2
  • Kathrin Klett: Judicial examination obligation and facilitation of evidence , AJP 11/2001, 1293 ff.
  • Peter Liver, Arthur Meier-Hayoz , Hans Merz, Peter Jäggi , Hans Huber, Hans-Peter Friedrich, Max Kummer: Bern Commentary on the Civil Code , Introduction, Art. 1 - 10 ZGB, Bern 1962, N 317 f., 362, 368 to Art. 8 ZGB
  • Isaak Meier: The standard of evidence - a current problem in Swiss civil procedural law , BJM 2/1989, 57 ff., 65
  • Oscar Vogel, Karl Spühler: Outline of Civil Procedure Law and International Civil Procedure Law in Switzerland , 7th edition, Bern 2001, 10 N 50

Web links

Wiktionary: Assumption  - explanations of meanings, word origins, synonyms, translations
Wikiquote: Guess  - Quotes

Individual evidence

  1. ↑ OLG Munich, decision of December 21, 2015 - 34 Wx 245/15
  2. ↑ BGH, decision of February 4, 2016 - AnwZ (Brfg) 59/15
  3. ↑ Arno Lampmann: BGH: Presumption of authorship according to § 10 UrhG also applies on the Internet February 11, 2015 to BGH, judgment of September 18, 2014, Az. I ZR 76/13
  4. ↑ Peter Trettin: Refutation of the presumption of § 476 BGB by the motor vehicle seller to OLG Koblenz, judgment of February 24, 2011 - 2 U 261/10
  5. ↑ Christiandeckebrock: ECJ on the reversal of the burden of proof in the purchase of consumer goods: de facto durability guarantee . Legal Tribune Online , June 5, 2015
  6. ↑ BGH November 17, 2010 - VIII ZR 112/10, NJW 2011, 598 (actual presumption for the correctness of the values ​​for a calibrated measuring device); BGH July 8, 2010 - III ZR 249/09, NJW 2010, 3292, 3294 (actual presumption for causality between incorrect advice and investment decision); BGH March 22, 2010 - II ZR 203/08 (actual presumption of the causality of incorrect prospectus presentations for the investment decision); BVerwG October 27, 1998 - C 38/97, BVerwGE 107, 304, 310f. = ZIP 1999, 202, 204 (actual assumption for land use); BAG June 19, 1973 - 1 AZR 521/72, BAGE 25, 226, 233 = AP No. 47 to Art. 9 GG industrial action (actual presumption for the pursuit of legal goals during the strike); Saarbrücken Higher Regional Court June 4, 1993 - U 109/92, NJW 1993, 3077, 3078 (rebuttable presumption of causality)
  7. ↑ Hainmüller: The prima facie evidence and the act of negligence in today's compensation process. 1966, p. 26ff.
  8. ↑ Dänzer: The actual conjecture . 1914
  9. ↑ File sharing decision BGH: No actual presumption of perpetrator, if access by third parties is possible . June 3, 2014 on BGH, judgment of January 8, 2014 - I ZR 169/12
  10. ^ Carl Creifelds: Legal dictionary . 21st edition 2014. ISBN 978-3-406-63871-8