Expert

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An expert ( english expert ) or appraiser is a natural person or authority with a special expertise and an expertise in a particular field .

Definitions

The expert has the task of making findings in the context of his area of ​​expertise and, in a second step, communicating these to outsiders.

If a court or an authority does not have sufficient specialist or specialist knowledge in a certain subject area , the court or the authority can transfer the factual question to an expert to answer it by way of an order . Specifically, the term expert is used for experts or advisors to courts or decision-making bodies . The principle of negotiation stipulates that the actual process material on which the subsequent decision of the court is based must be provided by the parties . The parties ( plaintiff / defendant , accused / accused ) themselves contribute to this process material through their statement of claim / indictment and make use of witnesses and experts. It is between the party reports and the agent appointed by the court for court cases to distinguish.

The expert evidence , pursuant to § 355 para. 1 ZPO before the trial court to take place. It is special evidence , so which expert the court selects is of crucial importance. The opinion is subject to the free assessment of evidence by the court. The restriction to publicly appointed and sworn experts is not a fixed principle of procedural and procedural law.

Experts contribute to the determination of the facts in an administrative procedure by drawing conclusions on the existence or non-existence of circumstances from facts already on record or to be obtained by them on the basis of their special specialist knowledge, which in turn enable or facilitate the authority to draw conclusions on the facts relevant to the decision . The expert first creates a finding , that is the summary of the known facts and / or facts to be determined by him and based on this his expert opinion, that is the professional judgment of which facts can be deduced from the finding.

EuroExpert, the European Organization for Expert Associations , defines the term expert as follows:

“The expert is an independent person of integrity who has special expertise and experience in one or more specific areas. On the basis of an order, the expert makes generally valid statements about facts presented to him or recorded by him. He also has the ability to present the assessment of this fact in a comprehensible manner in word and in writing ”.

The prerequisite for the activity as an expert is professional competence , one speaks of the "special expertise". As a rule, this knowledge is acquired through a university degree suitable for the subject area, as well as through several years of professional experience or further qualification in the corresponding field. For craft-related expert activities, the qualification as a master craftsman and corresponding professional experience in connection with extensive professional and legal training may be sufficient.

The professional title “Expert” is not protected in Germany , Liechtenstein and Austria . Everyone can call themselves an “expert”. The misleading use of the term can be qualified as unfair competition . This is to be assumed if corresponding specialist training and several years of subject-related professional experience cannot be proven, but this is advertised. In family courts (Germany), appraisers are called in on questions of custody, to determine residence or to deal with questions of conduct. More and more often they are also called upon by the court for questions of violence or sexual abuse.

In particular when formulating the assignment to the expert, the parties can already exert a significant influence on the further procedure and the costs of the assessment. As a rule, the costs for the work of the expert are borne by the party who applied for the expert evidence or who is burdened with evidence. According to Section 365 (2) ÖZPO, this also has to pay an advance on costs.

Legal position

Germany

There are a large number of experts in Germany, which are listed below in descending order of importance:

Publicly appointed and sworn experts (Ö.buv experts)

Persons as experts in the fields of economy , including the mining industry , the deep-sea and coastal fisheries as well as agriculture and forestry , including the garden and viticulture are working or wanting to work, as are § 36 para. 1 GewO at the request of certain To order subject areas publicly, if they demonstrate special expertise and there are no concerns about their suitability.

The Chambers of Crafts are to § 91 para. 1 no. 8 HwO for the appointment and swearing expert to give advisory opinions on goods , services and prices of craftsmen responsible. This public appointment is an administrative act . The courts should preferably use publicly appointed and sworn experts ( Section 404 (2) ZPO).

Certified experts

These are the experts appointed by their associations such as the automobile clubs. There is also in the EU Member States , the European standard EN 45000, according to which experts in addition to their qualifications can be certified and then to EN 45013 for example in the German Accreditation Body (DAkkS) accredited are.

Officially recognized experts

These are recognized by state authorities . For example, anyone who performs the duties of an officially recognized expert for motor vehicle traffic must be recognized by a technical inspection agency for motor vehicle traffic ( Section 10 paragraph 1 KfSachvG) in accordance with Section 1 Paragraph 1 of the Motor Vehicle Expert Act (KfSachvG).

Recognized experts

These are the employees appointed by an institution or corporation under public law as experts within their area of ​​approval .

Authorities as experts

These are, for example, the Federal Institute for Materials Research and Testing , Physikalisch-Technische Bundesanstalt , Federal Health Office , Federal Environmental Agency or German Patent and Trademark Office .

Free experts

These are the self-appointed experts who have not been appointed by outside organizations.

Austria

Overview

There is in Austria

Order

The expert is appointed ex officio by the court after hearing the parties ( § 351 ÖZPO ). The appointment as an expert must be followed by the person who is publicly appointed to provide expert opinions of the required type or who publicly exercises science, art or trade, the knowledge of which is a prerequisite for the required assessment, or who publicly employs them to exercise them or is authorized ( Section 353 (1) ÖZPO).

Expert ID (Austria) in credit card format with electronic certificate

In Austria the experts are usually selected by the court from the list of sworn and court-certified experts . The expert must identify himself to the court with his expert ID, which is made available to every expert certified and sworn in court in Austria.

If the parties cannot agree on an expert expert out of court, the court can undertake a so-called ad hoc swearing in the respective proceedings. This practice has been practiced in Austria for several years.

According to EU law, German experts can also act as experts in Austria (private reports).

Oath

Generally sworn and court-certified court experts give the expert oath when they are included in the list of court experts and court interpreters kept by the courts. In contrast to other experts, they no longer have to be sworn in for their respective activities in court.

Recertification

The experts entered in the list of the Ministry of Justice as court experts have to be recertified every five years. In doing so, they have to provide evidence of the procedures in which they were appointed by the court as an expert and evidence of further training activities (so-called: education pass ). This evidence must be submitted in due time to the President of the responsible regional court for recertification.

Bias

As witnesses, experts are subject to the rules on bias, as are court officials (§§ 19 ff JN). You must inform the court immediately of any potential bias (Section 2.3 of the professional code of conduct ).

Electronic right-hand traffic

Experts in Austria have been obliged to participate in electronic legal transactions (ERV) and to join an electronic delivery service since July 1, 2019 . Exceptions are only possible if there is no possibility of connecting to the Internet.

Switzerland

The position of experts in Switzerland differs depending on the applicable procedural law. However, some principles are regularly applied:

  • The experts are to be allowed to inspect the files and to be given the right to witness the taking of evidence and to ask questions to witnesses and accused to clarify the facts (for example Art. 82 para. 2 of the Swiss MStP).
  • The experts are subject to a duty of confidentiality (for example in accordance with Art. 320 of the Swiss Criminal Code).
  • The court determines the deadline (for example Art. 91 MStP).
  • The experts are entitled to compensation (for example Art. 93 MStP).

Liechtenstein

In Liechtenstein, official reports are mostly prepared and submitted by employees of the state authorities. There is no precise procedural regulation for this (although Art. 59 ff. State Administrative Care Act and other provisions contain general regulations for the authority on the questioning of experts and on fees, etc., but no regulations for the expert himself).

Some other (quite general) organizational regulations can be found in Sections 71 et seq. Of the Liechtenstein Code of Criminal Procedure (StPO) with regard to the use of experts in criminal proceedings as well as in other individual provisions of the StPO (e.g. on the right of the accused to ask questions).

Areas of law

The Code of Civil Procedure (ZPO) and the Code of Criminal Procedure (StPO) deal in great detail with the legal concept of the expert . In civil and criminal proceedings , the expert must be independent (not subject to influence), free from instructions (no obligations that falsify his findings and his assessment) and impartial (if his expert opinion is not tendentious , i.e. written deliberately in favor of a certain non-specialist interest).

Code of Civil Procedure

The principle of orality requires that the expert evidence must also be provided orally ( Section 128 (1) ZPO). In accordance with Section 402 of the German Code of Civil Procedure (ZPO), the provisions on witness evidence apply accordingly to evidence provided by experts , unless other provisions are to be observed. The selection of the experts to be called in and the determination of their number is carried out by the trial court in accordance with Section 404 (1) ZPO . It can limit itself to the appointment of a single expert; it can appoint others in place of the experts appointed first. The court has to direct the work of the expert and can give him instructions for the type and scope of his work ( § 404a Abs. 1 ZPO). Insofar as the specificity of the case requires, the court should hear the expert in accordance with Section 404a Paragraphs 2 to 4 of the Code of Civil Procedure before drafting the question of evidence, instruct him in his task and explain the assignment to him on request. In streitigem facts the court determines which facts should submit to the experts of the assessment is based. If necessary, the court shall determine by means of an evidential order to what extent the expert is authorized to clarify the question of evidence , to what extent he may contact the parties and when he must allow them to participate in his investigations. An expert, according to § 406 ZPO for the same reasons that the refusal of a judge to authorize rejected ( bias ). Further obligations arise for the expert from § 407a ZPO. The evidentiary privilege of a witness applies according to § 408 para. 1 ZPO for experts (expertise right to refuse). The swearing-in of the expert according to § 410 ZPO includes that the expert has prepared the expert opinion impartially and to the best of his knowledge and belief.

Code of Criminal Procedure

In the Code of Criminal Procedure, the provisions on witnesses also apply to experts ( Section 72 of the Code of Criminal Procedure), the selection is incumbent on the judge ( Section 73 (1) of the Code of Criminal Procedure). Further provisions parallel to the ZPO are the refusal of the expert ( Section 74 StPO), the right to refuse an expert ( Section 76 StPO), the judge to direct the activity ( Section 78 StPO) or the swearing-in ( Section 79 StPO). The expert may witness or accused to prepare his report hearing ( § 80 Code of Criminal Procedure).

AO and FGO

A rigid regulation that only allows the reports of publicly appointed and sworn experts is alien to procedural and procedural law: For example, Section 92 AO regulates the evidence for the administrative procedure and only names the experts as a group. Section 96 of the AO regulates the involvement of experts in more detail, with only one point differentiating between the publicly appointed and the other experts: Only the publicly appointed experts have to comply with an expert opinion ( Section 96 (3) AO). According to § 82 FGO , insofar as § § 83 to § 89 FGO do not contain any deviating regulation, the provisions of the ZPO apply mutatis mutandis to the tax court proceedings. These include § 404 ZPO, which regulates the selection of judicial experts. According to Section 404 (2) ZPO, publicly appointed experts are to be given priority. However, it is purely a regulatory requirement that does not exclude the appointment of other experts within the framework of the judging panel's selection process.

Education, age limit and remuneration

education

According to the general definition, any expert who is able to provide "proof of special expertise" may name himself. This is a rather unspecific description. In simplified terms, one can assume that there are two possible but not legally mandatory criteria that can be used for logical and practical derivation. If you have the appropriate qualifications (relevant studies or relevant craft training, usually with a master craftsman's license), further training as an expert is possible within the framework of qualifying seminars (Germany, Austria) or distance learning (Germany). The classic areas of expert appraisal include the areas of "valuation of structural damage", "property valuation", "vehicle damage" ( vehicle inspector ), "vehicle valuation", "company valuation".

Experts can have in-depth training and sufficient professional experience in their area of ​​expertise. Example: For example, master tilers, long-time journeyman, architects or engineers who are particularly familiar with this trade can work as SVs to assess tile work. This naturally applies in the same way to other trades or specialist areas.

Experts must be able to produce expert opinions and later to defend them orally. This means that they not only have to assess things factually and technically correct, but above all that they are able to translate technical facts into everyday language in such a way that the relationships can be understood by every layperson (e.g. lawyers, politicians, administrative employees , Journalists) can be understood and understood. An appraisal that does not meet this requirement is worthless and therefore does not have to be paid for because it does not do justice to the overall order. It happens that expert reports are purely technical treatises at a high level, which, however, cannot and may not be used as decision-making aids due to their lack of comprehensibility. Technical and methodological basic training for experts should counteract this, as offered by special training institutions. The necessary prerequisites also include linguistic fluency in the oral discussion.

Age limit

The Federal Administrative Court has ruled that a general age limit represents an inadmissible disadvantage based on age according to the General Equal Treatment Act (AGG) and is therefore ineffective. A Chamber of Commerce and Industry (IHK) may therefore not generally set a maximum age limit in its statutes for all publicly appointed and sworn experts. In the specific case, it was about the maximum age limit of 68 years, which was provided in the Expert Ordinance (SVO).

compensation

The remuneration of court experts is based on the Judicial Remuneration and Compensation Act (JVEG). Otherwise the remuneration is freely negotiable. If there is no express agreement, the remuneration is to be determined according to a possibly existing estimate, the usual remuneration according to § 315 BGB (reasonable discretion) or the additional contract interpretation. Unless an exemption from sales tax is explicitly defined by law, the service provided is regularly subject to sales tax. The basis is § 4 No. 14 UStG . The EU regulation in Article 13 (1) (c) of the 6th Directive 77/388 / EEC on the harmonization of sales tax, which is valid as a superordinate law , is activity-related, i.e. it only exempts certain individual services and thus sets the limits of tax-free activity significantly narrower. The tax offices also decide differently across the country which of the numerous types of reports are subject to VAT and which are VAT-exempt.

Expert groups

Experts certified according to DIN EN ISO / IEC 17024

According to EN ISO / IEC 17024, people can be certified by an accredited institution (= conformity assessment bodies ) entrusted by the DAkkS . This is a system of public lending to an organization under private law with the performance of sovereign tasks.

The standard regulates the requirements for the bodies that certify experts. In Germany, until December 31, 2009, the German Accreditation Council (DAR) was the highest level of certification bodies in the certification system. The DAR had its office at the Federal Institute for Materials Research and Testing (BAM) in Berlin and was transferred to the newly created German Accreditation Body (DAkkS). The German Accreditation Service (DAkkS) was founded by the Federal Republic of Germany, represented by the Federal Ministry of Economics (BMWi), as a corporation (GMBH). The previous members of the European Corporation for Accreditation (EA), DGA and DKD have been integrated into this society. The accreditations of DACH, DAP, TGA / DATECH and DKD were valid until February 28, 2013 and were approved by the DAkkS acc. Regulation No. 765/2008 harmonized, adjusted if necessary and subsequently monitored further. New applications submitted from 2010 to the end of 2013 were not processed in these new sectors or recorded as covered by the public-law system.

A high level of transparency has been created through the accreditation process of the certification company. The constant quality of the multi-stage test procedure for personal certification is stipulated by ordinances No. 765/2008, 764/2008 and 768/2008. The certification company accredited by DAkkS is regularly monitored for compliance with the contents of the accreditation contract (examination procedure). Such a control function does not exist in this form in the appointing bodies. In the case of "accredited personal certification", the qualifications and suitability of the examiners, the activities of the examination board and the certification committee as well as the certification process for personal qualifications with the examination and the examination reports are continuously monitored. The certification process is largely shaped by a certification program. The certification program regulates u. a. the requirements for the admission of an applicant, contains guidelines on how the applicant's competence can be assessed and specifies the examination procedure, its content and the composition of the examination board. At some accredited personal certification bodies, the auditors are monitored during the audit. In the examination, the applicant presents his professional and personal qualifications. The examination is divided into an expert assessment, a written part and an oral part.

The DAkkS was checked in full for the first time in 2014 and then every five years by the "European Accreditation". With this procedure, the legislature has been given the opportunity to provide certified experts for expert activities in addition to Öbuv experts. This option has already been used in the Investment Act, for example.

In a contribution from the Institute for Experts e. V. states lawyer Peter Bleutge that the legislature can demand accreditation by the DAkkS. "In the past, the legislature provided for publicly appointed and sworn experts as well as certified experts (...) for expert activities ..." "With the DAkkS, a state-entrusted body has now been created that the legislature can fall back on in the future and for can ensure fair competition. "

The certified expert is subject to regular checks with regard to his personal suitability and professional qualifications. The examination procedure comprises a written, an oral, a practical part as well as a review of the expert opinion, with the passing of which the expert proves his or her special expertise. For certification, an expert must prove his experience in the specialist area or certification area. The knowledge of an expert to obtain certification or the swearing-in is intensively checked by the appointing body or the notified certification body. Work samples are checked regularly (expert assessments).

In order to permanently guarantee the high quality of the service in the expert field, the validity period of the certificate or the order is usually limited to a maximum of five years. After that, the certified expert has to prove his level of knowledge again.

The obligations of the certified expert result from the monitoring contract between the expert and the accredited personal certification body. The content of the monitoring contract essentially coincides with the content of the expert regulations of the appointing bodies. An exception for the certified expert versus the öbuv expert is the obligation to provide an expert opinion. An expert certified according to DIN EN ISO / IEC 17024 is not obliged to accept judicial orders.

According to the ZPO (in particular Section 404 (2) ZPO), experts other than publicly appointed experts should only be called in before a court if special circumstances require this. This is a ZPO regulation that arose when DIN EN ISO / IEC 17024 did not yet exist. There has so far not been an adjustment to the code of civil procedure in the context of the various developments in the expert system. An amendment to Section 404 (2) ZPO is not considered necessary by the legislature because deviating from this requirement (regulatory regulation) has no consequences and the courts are not inadmissibly restricted in their free choice of experts.

Whether the certification of experts should replace the public appointment and swearing-in of experts in Germany for reasons of EU law (non-permissible restriction of professional practice for EU-active and EU-approved experts) was discussed intensively in German specialist circles. The expert groups were essentially the IHK, HWK and expert associations with their majority Ö.buv members. With the amendment of § 36 GewO and the introduction of § 36a GewO at the end of 2009, the German legislator has spoken out in favor of maintaining public appointments and the regulations on public appointments to the European legal requirements of the Services Directive (2006/123 / EC) and the Professional Recognition Directive (2005/36 / EG) adapted.

Personnel certification in experts being done for example in the fields of property valuation , the Bauschadensermittlung and evaluation, in the concrete repair (technical expert planners - SKP) in fire protection , building energy optimization , experts according to the Water Act and in the motor vehicle sector ( automotive expert ). In addition, extensive personal certifications in the industrial sector for non-destructive tests ( DGZfP e.V. , SectorCert) take place. These are mostly multi-level qualification and competence certificates in the areas of acoustic emission testing, digital radiometry, eddy current testing, radiographic testing, radiometry, infrared thermography, ultrasonic testing, penetrant testing, etc. but personal certification has also increasingly found its way into medicine.

The Hechingen Regional Court has determined: "... such a certification, if it is carried out in accordance with the DIN EN ISO / IEC 17024 standard, is a certificate of competence comparable to the public order and equated with it."

The Association of German Engineers (VDI) has revised the leaflet "VDI-MT 5900 Sheet 1 Experts for Motor Vehicles and Road Traffic - Basics". The draft of this leaflet provides for the equalization of Ö.buv experts and the "accredited certification". The deadline for objections to the draft ended on December 31, 2018. The revision of the remaining sheets is to follow.

In contrast to the IHK and HWK, there is currently no standardized central query system for the certified experts. Publication is usually carried out by the respective certification body or by some chambers of engineers via list entries. At the Bavarian Chamber of Engineers, an entry is made in the service lists upon request .

State recognized expert (Germany)

State-recognized experts (this term is protected by law) have to fulfill sovereign tasks and a. trained for technical supervision. They are under the supervision of the state. It is controversial that only the state-approved experts as well as the publicly appointed and sworn experts (see below) are entitled to use a round stamp . The OLG Hamm and the LG Nürnberg-Fürth decided that Ö.buv experts do not have a round stamp monopoly. The OLG Cologne states, however, that the use of a round stamp by a free expert violates § 3 UWG if it gives the impression that it is a publicly appointed and sworn expert. The wording of the stamp to be used is specified precisely by the recognition institution.

State-recognized experts (saSV) are experts in certain specialist areas, who have usually proven through an extensive examination that they have, in addition to many years of professional experience, special expertise in their specialist areas. Depending on the specialist area, you are entitled to prepare legally required evidence, to carry out tests and to issue certificates.

State-recognized experts work under private law and take on tasks that were previously only covered by the authorities. In doing so, they help relieve the authorities.

But the use of the saSV also has decisive advantages for the client. He can switch on the saSV at an early drafting stage and no longer has to wait for the commissioning of the building supervisory authority, as was sometimes necessary in the past.

The early activation of the saSV not only has an acceleration effect, but also leads to a desired coordination or optimization of the planning under all relevant technical and financial aspects.

The saSV carries out its work independently. He runs his office independently and on his own account. The saSV carries out its activities independently. For example, he has no commercial or delivery interests related to his activity.

Experts in the following areas are recognized in Germany:

  • State-approved experts for earthworks and foundation engineering
  • State-approved experts for potentially dangerous animals
  • State-approved experts for testing fire protection
  • State-approved experts for testing stability in the fields of solid construction, metal construction and timber construction
  • State-approved experts for sound and heat insulation
  • in Bavaria: private experts in water management recognized by the Bavarian State Office for the Environment (PSW)

Publicly appointed and sworn experts (Germany)

In contrast to the "young" accreditation of certification bodies for personal certification, the system of the öbuv has existed since 1870 with roots right up to the Middle Ages. In contrast to the general designation "expert", the designation "publicly appointed and sworn expert" (abbreviation: ö. Buv) is legally protected according to § 132a StGB . The misuse of this title is punishable.

Publicly appointed and sworn experts are only available in Germany. With the amendment of § 36 GewO and the introduction of § 36a GewO, the legal regulations for public appointments have been adapted to the European legal requirements of the Services Directive (2006/123 / EC) and the Professional Recognition Directive (2005/36 / EC).

The basic duties of a publicly appointed and sworn expert are objectivity , impartiality and freedom of instruction . He has to take an oath thereon. A violation of these obligations constitutes a criminal offense.

The basic obligations of an Ö.buv expert to provide an expert report result from the expert code and apply not only to courts, but also to private clients. In the case of private orders, there is no obligation to accept. However, court orders cannot be rejected by the SV.

The legal basis for the public appointment and swearing-in of experts can be found in § 91 HwO or in § 36 GewO.

The order can be placed by a chamber of industry and commerce , a chamber of crafts , a chamber of agriculture , a chamber of architects or engineers, or the regional council of a country.

An applicant for the public appointment and swearing-in usually has to go through a review process with the ordering institutions, in which the personal and professional suitability for the preparation of reports as well as the above-average expertise and skills in the respective subject area are checked.

Only applicants who have been able to demonstrate their professional qualifications and personal suitability to the examination board in the review process will be publicly appointed. The applicant must for the examination procedure u. a. accept the following wording.

In the rules of procedure and procedure for the expert committee of the Saxon chambers of industry and commerce for the assessment of the special expertise of experts in the field of "damage to buildings" it says in § 6 paragraph 3 "subject of the review":

“The professional appointment requirements for the subject area decided by the German Industry and Commerce Day describe the content of the subject area, but do not bind the technical committee. Rather, he is free to judge whether the proof of special expertise has been provided. "

Public appointments can be made in a wide variety of specialist areas, such as B. Evaluation of structural damage, traffic engineering, sports field construction , company valuation, property valuation , EDP u. a. respectively. As an " appraiser for property valuation " a. a member of the expert committee i. S. d. Section 192 of the Building Code (BauGB).

The so-called order stenor provides information about the ordering authority and the specialist or area of ​​activity. An order stencil reads, for example, “publicly appointed and sworn expert for the road construction trade”. In addition, the monitoring authority is indicated, for example "Chamber of Crafts Dortmund".

By naming both the ordering authority and the area of ​​activity, it is easier for a person seeking advice to find a local expert from the respective subject, whose qualification has been proven by the examination procedure of the ordering authority.

For example, “machines and systems in the brewery and beverage industry” or “planning and execution errors in building construction” could be specified as the area of ​​activity.

An ö.buv can only be examined and issued upon request in those departments for which the appointing bodies actually hold examination commission (s). There can be no appointment (s) for departments in which there is no examination committee (s). Thus there are many areas such. B. in medicine, technology and in the economy, for which the appointing bodies can not provide Ö.buv experts. There are no regulations on the composition of the personnel or the qualifications of the examination committees of the appointing bodies. There are also no binding specifications for the implementation and content of the tests for the individual appointing bodies (see above). There is also no control body to monitor the examination commission. In the event of a dispute, the only way for the applicant is to file a formal complaint with the appointing body. The appointing bodies among themselves do not have a uniform procedure for checking special expertise. The Higher Administrative Court of Lüneburg decided on July 31, 2009:

“… As far as the proof of special expertise is concerned, there should be no rigid, schematic handling, in particular the appointing bodies must not require that every applicant must undergo a written and oral exam. Rather, an applicant can also provide his special expertise through other evidence such as submitting his own reports ... "

- OVG Lüneburg, decision of July 31, 2009, Az .: 7 LA 79/09

There is an essential difference here between the appointment procedure and the rigid and standardized procedure of personal certification according to DIN EN ISO / IEC 17024. Because of the lack of control of the appointing bodies and the composition of the examination committees, a "public certification" is being discussed for improving transparency and qualification . With the DAkkS, such a system of public-law lending to companies organized under private law has already been created (cf. experts certified according to DIN EN ISO / IEC 17024).

Publicly appointed and sworn experts are usually appointed for five years. Before reappointment, the ordering corporation will check whether all appointment requirements are still met. Particular attention is paid to whether the experts have fulfilled their obligation to provide ongoing training in the respective area of ​​assignment.

The Association of German Engineers (VDI) is currently revising the leaflet "VDI-MT 5900 Sheet 1 Experts for Motor Vehicles and Road Traffic - Basics". This leaflet provides for the equality of öbuv SV and the "accredited certification". Expected date of publication September 2018. The revision of the remaining sheets should follow.

All of the 80 IHKs based in Germany, publicly appointed and sworn experts, are listed in an official nationwide list of experts. This contains information on experts officially appointed and sworn in by chambers of industry and commerce, and by chambers of architects, engineers and agriculture. Since January 1, 2008, some of the government experts of the State of Bavaria have also been in the nationwide list of experts. The Bavarian IHKs have been responsible for these experts since then.

The chambers of crafts also operate a nationwide database of experts. In this database, publicly appointed and sworn experts for a special trade branch, for example road builders, tilers, opticians, bakers, hairdressers, etc. can be specifically searched for.

Medical expert (Germany)

For medical experts (including dental and psychological) the license to practice medicine is usually a prerequisite. The license to practice medicine is an official (state) authorization to practice certain health professions and corresponds to a public appointment (see e.g. § 109 ). With regard to Section 404 , the OLG Hamm decided that medical experts must generally be knowledgeable in the relevant specialist area. You will u. a. as a court expert for medical questions on questions of the state of health, illnesses, treatment errors and physical harm to patients. With the medical assessment, they support the decisions of social and private insurance carriers about their obligation to pay benefits.

Psychological experts must be qualified psychologists and should have many years of clinical and / or therapeutic experience.

Free and generally recognized, otherwise qualified experts

People with appropriate personal and professional requirements as well as with specialist knowledge and expertise as well as professional experience can work as experts; the job title is not protected.

The free and generally recognized, qualified expert should have a corresponding reputation in the form of a completed qualification as a master craftsman (for craft- related expert activities) or a university education as an engineer , a higher technical college education as a state-certified technician (for technical expert questions) or a university education as a business economist (for economic issues such as company and property valuation). Many years of practical experience, continued reference to practice, constant engagement with the technical and economic development in the respective professional field and knowledge of the latest state of science and the associated rules (standards) are the basic requirements for freelance expert work. This includes advanced technical, economic and legal knowledge as well as the personal ability to objectively and impartially, objective analysis and documentation of facts, combined with the ability to express oneself in a generally understandable and convincing manner in order to fulfill a corresponding expert assignment. Since the Ordinance on Industrial Safety and Health came into force , the common term “expert” has been replaced by “qualified person”. People who have previously checked as experts can continue to carry out the corresponding checks.

In Germany, independent experts can, under certain conditions, join one of the expert professional associations.

Independent experts are rarely commissioned in court proceedings (Germany); In judicial proceedings, publicly appointed and sworn experts are usually given preference in accordance with Section 404 (2) ZPO or Section 73 (2) StPO. However, in special subject areas or if no publicly appointed and sworn expert can be found, unauthorized experts can also be used. Experts certified according to DIN EN ISO / IEC 17024 are increasingly being used. The court is free to make its decision.

People with the appropriate professional training have the opportunity to obtain further qualifications as experts.

Expert associations

A relevant association of experts in Germany includes the Federal Association of Publicly Appointed, Sworn and Qualified Experts (BVS), the Federal Association of Publicly Appointed, Sworn and Qualified Art Experts (BVK), and the Federal Association of German Experts and Specialists (BDSF).

In Austria there is only one recognized association of experts, the main association of generally sworn and court-certified experts .

There is no recognized association of experts in Liechtenstein . If necessary, experts are appointed by the court.

See also

literature

  • Walter Bayerlein, Practical Handbook Expert Law 5th Edition, CH Beck Verlag ISBN 978-3-406-66417-5 .
  • Frank Bloehs: Accreditation law, The general rules for accreditation and the accreditation procedure , 1st edition. Verlag CH Beck, 2015, ISBN 978-3-406-65049-9 .
  • Raoul Kirmes: Private IT forensics and private investigations, two sides of the same coin? An analysis of the terms, roles and legal fields of activity for private IT forensics, at the same time laying the foundation for a professional law in private IT forensics. Josef Eul Verlag, Lohmar 2012, ISBN 978-3-8441-0204-8 .
  • Lothar Neimke, Andree Sachmerda: The expert and his clients . Fraunhofer IRB Verlag, Stuttgart 2014, ISBN 978-3-8167-8953-6 .
  • Mark Seibel, Michael Staudt: Handbook for the building expert . Fraunhofer IRB Verlag, Stuttgart 2014, ISBN 978-3-8167-8937-6 .
  • Rolf Stober: The publicly appointed expert between professional ties and deregulation. Heymanns Verlag, 1991, ISBN 3-452-22039-7 .
  • Jürgen Ulrich: The judicial expert: A manual for practice. 12th edition. 2007, ISBN 978-3-452-25717-8 .

Web links

Wiktionary: Expert  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Deutscher Ärzte-Verlag GmbH, editorial office of the Deutsches Ärzteblatt: DÄ Print: Errors in the psychiatric assessment. Retrieved June 7, 2017 .
  2. ^ Adolf Baumbach / Wolfgang Lauterbach / Jan Albers / Peter Hartmann, Civil Procedure Code - Commentary , 2004, § 128 ZPO Rn. 22nd
  3. ↑ ZEV 2019, issue 9, p. 521
  4. ↑ Kurt Ringhofer, Verwaltungsverfahren , Volume 1, 1987, p. 444.
  5. ↑ EuroExpert European Organization for Expert Associations, September 2006.
  6. ^ Antonius Opilio : Passepartout for jurists. Edition Europa Verlag, 2007, ISBN 978-3-901924-24-8 , p. 225 f. (on-line)
  7. ↑ BGH NJW 1984, 2365 , 2366.
  8. ↑ Harald Volze, Expert Questions, 2010, p. 26 .
  9. ↑ Harald Volze, Expert Questions, 2010, p. 25.
  10. ↑ List of sworn experts .
  11. ^ Oath of experts , website: Main association of sworn and judicially certified experts .
  12. ↑ Published by the main association of sworn and court-certified experts.
  13. ↑ Law of April 21, 1922 on general state administrative maintenance (the administrative authorities and their auxiliary bodies, the procedure in administrative matters , the administrative compulsory and administrative criminal proceedings ), LGBl 24/1922
  14. ↑ Criminal Procedure Code of October 18, 1988, LGBl 62/1988 ( StPO )
  15. ↑ BVerwG, judgment of February 1, 2012, Az. 8 C 24.11, full text .
  16. ↑ BGH April 4, 2006 - X ZR 122/05.
  17. ↑ Medical text online, doctor and sales tax (PDF; 336 kB) p. 2–5, medical reports subject to sales tax and exempt from sales tax.
  18. ↑ ifs information 03/2010, 2010, p. 10.
  19. ^ LG Hechingen, decision July 19, 2017, Az .: 1 OH 19/15.
  20. ↑ OLG Hamm, judgment of March 11, 1986, GewA 86, 332.
  21. ^ LG Nürnberg-Fürth, judgment of June 22, 2001, Az .: 4 HKO 1230/01.
  22. ↑ OLG Cologne, judgment of September 18, 1998, Az .: 6 U 25/98.
  23. ↑ Private experts in water management on the homepage of the Bavarian LfU.
  24. ↑ nationwide list of experts
  25. ↑ Expert database of the craft. Retrieved on January 4, 2020 (official directory of the chambers of crafts for the nationwide search of publicly appointed and sworn experts.).
  26. ↑ Klaus Oehler: The dental expert. Deutscher Zahnaerzte Verlag, 2004, ISBN 3-934280-60-9 , p. 55.
  27. ^ Frank Schneider, Helmut Frister, Dirk Olzen : Assessment of mental disorders. Springer, 2006, ISBN 3-540-20621-3 , p. 9.
  28. ↑ OLG Hamm, judgment of March 13, 2006, Az .: 3 U 239/05.
  29. ↑ The medical expert in the doctor's liability process ( Memento of the original from August 28, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2Template: Webachiv / IABot / www.rpmed.de
  30. ^ Federal Association of Art Experts BVK .