Approval
The party hearing ( §§ 445 ff. ZPO ) is a formal evidence in German civil proceedings . It differs from the hearing of a party ( §§ 118, 141 Abs. 1 S. 1 ZPO), which merely supplements incomplete submissions and takes place without a decision to take evidence.
Their evidential value is assessed differently. Some consider the party hearing to be the weakest evidence because of the parties' typically existing self-interest in the outcome of the process. Others do not qualify it as evidence of lesser value.
The ZPO only allows them under strict restrictions. It regulates the party adoption
- at the request of the opponent ( Section 445 of the German Code of Civil Procedure), which, however, does not provide any counter- evidence
- upon own application ( § 447 ZPO), which is only permitted with the consent of the opponent ;
- ex officio ( Section 448 ZPO), which assumes a certain probability for the fact to be proven by the party hearing ( evidence )
- and to estimate the amount of damage ( Section 287 (1) sentence 3 HS. 1 ZPO).
Political party
A party within the meaning of these provisions is the litigant or defendant in proceedings or the legal representative or the representative body of the incapacitated party. The parents of a minor party as legal representatives or the authorized representative of a partnership or corporation can therefore (only) be heard as a party, while the minor or otherwise incapable of litigation can be heard as a witness.
Right of application
The right to apply for a party hearing initially belongs to the person who is obliged to provide evidence of the fact to be proven. He can then request that the opposing party or his own party be questioned. His opponent only has the option to request his own interrogation, whereby the requirements of § 447 ZPO apply here too , i.e. the consent of the opposing party must be available.
Subsidiarity
The party hearing is only permitted when all other evidence has been exhausted.
Questioning the enemy
The party subject to the burden of proof, who cannot fulfill its burden of proof by using other evidence, can apply for the interrogation of the opponent as a party ( Section 445 (1) ZPO). If these prerequisites are met, i.e. the exhaustion of the other evidence, a decision to take evidence is issued, ordering the interrogation of the opposing party ( Section 450 ZPO). The opponent is not required to consent.
Questioning the party obliged to provide evidence
The party obliged to provide evidence can also request its own hearing; Here, however, a decision to take evidence is only issued if the opponent agrees. The purpose of the regulation is obvious: those who raise themselves as evidence regularly gain significant procedural advantages that the opponent can only compensate with difficulty, so that it depends on their consent to this procedure.
Ex officio questioning
Ex officio questioning of a party is regulated in § 448 ZPO. It is ordered by the court regardless of the burden of proof and can relate to one or both parties. It also assumes that all available evidence has been exhausted (lack of evidence). In addition, there must be an "initial probability" ( evidence ) for the correctness of the fact to be proven . The ex officio questioning of a party may be required, provided this is required by the principle of equality of arms .
Refusal to be questioned
Even if the court orders the party to be heard, the party to be heard is not required to give evidence. Your refusal to be questioned can, however, be taken into account when assessing the evidence.
literature
- all comments on the Code of Civil Procedure (Germany)
- Eva-Maria Brus: The party adoption in the light of equality of arms following from the EU constitution . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4420-8 .
- Rüdiger Zuck: Constitutional framework conditions of the civil procedural evidence procedure - taking of parties. In: NJW . 52/2010, p. 3764.
Individual evidence
- ↑ BGH, judgment of July 8, 2010 - III ZR 249/09 margin no. 15 ff.
- ↑ BGH MDR 2006, 285
