Party reports
Party reports , even private opinions , refers to a report that about evidentiary purposes of a party was commissioned not by the trial court.
Germany
Civil litigation
The term private expert opinion does not mean that the unilaterally and extrajudicial (and thus “privately”) commissioned expert would be less competent. The possibly lower evidential value compared to a judicially commissioned expert can, however, result from the fact that the unilaterally appointed expert could be biased (so-called courtesy report ).
If a party submits an expert opinion that contradicts the findings of a court-appointed expert, special care is required from the judge. In this case - as in the case of contradicting reports from two court-appointed experts - he may not decide the dispute between the experts by giving preference to one of them without a plausible and logically comprehensible justification. It must investigate the contradictions and clarify the matter further. To this end, it can arrange for the expert to add a written supplement to his report. In particular, the oral hearing of the judicial expert in accordance with Section 411 (3) of the ZPO is recommended. If necessary, the court according to § 412 ZPO order a new expert opinion.
If there is a contradiction between the statements of different experts, the judge is obliged to clarify the contradiction even when it comes to private reports. If the court fails to clarify the contradictions, it acts in a procedural error and violates the principle of free assessment of evidence ( § 286 ZPO).
Social court proceedings
According to § 109 SGG , expert evidence can be provided by a specific doctor named by the plaintiff. The right to apply exists once in both factual instances. The expert appointed by the party is commissioned by the court. The costs to be advanced for the expert opinion are not included in the approval of legal aid ( Section 73a (3), Section 109 (1) sentence 2 SGG).
Austria
A private opinion does not replace a court opinion. However, a private expert opinion is capable of raising doubts about a court expert opinion or provides the basis for additional questions to the expert. If the quality of the expert opinion is questioned by the court, this can lead to a second expert being commissioned by the court to prepare an expert opinion.
Switzerland
According to the case law of the Federal Supreme Court, party reports are not in themselves suitable as evidence and in this respect do not fall under the concept of the document. Rather, they are regarded as mere party claims. However, this does not exclude that they are able to provide evidence together with circumstantial evidence - proven by evidence.
Web links
- The official expert and the private expert in the Zurich criminal case University of Zurich, no year
Individual evidence
- ↑ BGH, decision of May 18, 2009 - IV ZR 57/08 marginal no. 7th
- ↑ BGH, judgment of May 14, 2019 - VI ZR 393/18
- ↑ Expert opinion according to § 109 SGG: Caution, limited right to apply AK lawyer and law firm, May 25, 2018.
- ↑ Sönke Nippel: hearing of a specific doctor according to § 109 SGG September 10, 2013, changed on June 8, 2020.
- ↑ Katharina Braun: Quality of Court Reports April 29, 2012.
- ↑ in this sense also ECHR, decision of April 4, 2013 - Bsw30465 / 06 on the right to a fair trial
- ↑ Alexander Schmidt: ECHR evaluates private reports, shadow over appointment by the public prosecutor August 12, 2013.
- ↑ Federal Supreme Court, judgment of October 31, 2018 - 4A_9 / 2018 5.2.2.
- ↑ Roland Hürlimann: The burden of substantiation - curse or blessing? Rechtsanwaltspraxis / Pratique du Barreau 2019, pp. 209–211.
