mention
The submission or presentation of a litigant party ( party presentation ) represents the entirety of the allegations that a party makes in a civil process. A distinction is made between legal opinions and factual assertions. According to § 291 ZPO, facts known to the court do not require any proof § 291 . The presentation of facts is particularly important in civil litigation . The civil court does not have to clarify the actual facts ex officio , but rather use the factual presentation of the parties as a basis ( negotiating principle or principle of presentation) and, if necessary, to collect evidence (cf. for more details on this relation technique ).
The legal situation in German civil proceedings
The Code of Civil Procedure (ZPO) regulates the declaration and presentation obligations of the parties in more detail in Section 138 .
The parties' obligation to truth
Section 138 (1) of the ZPO standardizes the party's duty of truth.
The parties have to make their statements about factual circumstances completely and truthfully. Insofar as a complete presentation is required here, this does not mean that the party is obliged to present everything that could belong to the matter. Rather, the duty of completeness is a sub-case of the duty of truth and means that the party's declaration must not become untrue through omissions. Incidentally, incomplete or unsubstantiated submissions are only sanctioned to the extent that no evidence is required and does not have to be taken into account in the judgment, such as an assertion in the dark .
Duty of truth of the lawyer
The lawyer is committed to the truth in civil proceedings. He may neither present untrue facts for the benefit of his client nor withhold true facts if this leads to a false presentation of the facts. He is also prohibited from denying true facts. His duty of truth arises from his position as an organ of the administration of justice (§ 1 BRAO). According to this, he is obliged to participate in the implementation and maintenance of the administration of justice, which prohibits him from untruths in court because of the risk of wrongful judgments. If he nonetheless presents untruths and the other side loses the process as a result, he is liable for damages. This is a case of so-called third-party liability, because the lawyer is not liable to his client, but to a non-client (third party).
Declaration obligation
In Section 138 (2) and (3), each party's obligation to make a declaration is set out in more detail. Paragraph 2 stipulates that each party must explain the facts alleged by the opponent. This declaration can basically mean that the opposing submission is either admitted or disputed.
Admitted submission
If the opponent admits a factual assertion by the other party, this is an undisputed submission . It is important here that the court is bound by the undisputed submissions of the parties. It must not collect evidence on issues that are not in dispute between the parties to civil proceedings. Even if the court is convinced of the incorrectness of the undisputed submission for other reasons, it still has to base its legal assessment on this undisputed factual submission by the parties.
The regulations on the undisputed presentation are a direct consequence of the fact that there is no official duty to inform in civil proceedings. The opposite is true, for example, in criminal proceedings : here, according to Section 244 (2) of the Code of Criminal Procedure , the court has a comprehensive duty to clarify the facts. The court would therefore be prevented from using a confession by the accused as a basis for his conviction without review.
Contested submission
If one party disputes the submission of the other, it must first be checked whether one of the parties has offered evidence for the respective submission , i.e. has named evidence by which the disputed (or: disputed) submission is to be proven. All evidence known from other procedural rules, such as witness evidence , evidence through expert reports , judicial inspection or documents, come into consideration here. If evidence has been offered for a fact relevant to the decision, the court must collect this evidence . Considers it after completing the evidence for the argument proved can and must the court that argument his judgment even lay a basis, if the other side maintains its denial. The evidence does not succeed, or missing it from the outset on a offer of evidence, so the court must ask which of the parties to the disputed circumstance burden of proof would be and evaluate the fact that a clarification was not possible to the detriment of this same party.
Missing explanation
Section 138 (3) determines the consequence that arises from a violation of the obligation to provide a full declaration in accordance with Section 138 (2): In this case, the opposing submission is to be treated like the admitted submission. One speaks here of the fictional confession . It should be noted, however, that an express dispute is not mandatory here. From an overall view of the other submissions of the party, which also takes into account previous submissions, an implied contestation can rather result, so that despite the lack of an explicit explanation, the opposing submission is not treated as an admitted submission. Furthermore, the mere lack of denial is not enough for the assumption of a fictitious confession. Rather, according to the case law of the Federal Constitutional Court, an implicit will to confess must be given.
Do not know
In the context of a party's submission, circumstances can be asserted which the other side neither wishes to admit nor can substantiate deny. An example would be the submission of a landlord appearing as the plaintiff , who argues in support of his eviction action that other tenants have complained about the defendant because he does not comply with the house rules. The defendant cannot know whether other tenants have complained to the landlord. As part of his obligation to be truthful (see above), he can at best explain whether he has complied with the house rules, but cannot say anything about the behavior of the other tenants. In this case, he can hear the applicant's argument with ignorance explain. The explanation with ignorance is generally referred to as denying with ignorance , although strictly speaking this is not a denial , but an indication of uncertainty . However, the legal consequences of a declaration with ignorance are the same as those of a dispute: the facts about which a party has legitimately declared ignorance is not an undisputed submission, so that either evidence must be obtained or a decision must be made according to the rules of the burden of proof.
For the declaration of ignorance, Section 138 (4) ZPO stipulates that a party may only legitimately declare ignorance of facts that neither relate to their own actions nor have been the subject of their own perception. In the example already mentioned, the tenant appearing as the defendant in the process may explain that he or she is ignorant of the statements made by the other tenants. However, he must either admit his own behavior or with a concrete assertion ( it is incorrect that the defendant made noises at night, on the contrary, from 10 p.m. he always avoided listening to the radio louder than room volume or otherwise bothering his fellow tenants with noise ) deny. If, on the other hand, a party inadmissibly disputes with ignorance, the submission is thus formally disputed and is also presented as such in the judgment , but the respective fact in the proceedings is based on the inadmissibility in the decision-making process as undisputed, as it is insofar according to the regulation of § 138 Abs. 3 ZPO is regarded as allowed.
Substantiated submission
The concept of substantiated submissions abstractly formulates the question of how exactly and how detailed a party must structure its factual presentation in the individual case. In principle, the burden of substantiation depends on the presentation that is being contested. Flat-rate submissions, for example, can also be contested by the opponent. If, on the other hand, one side provides specific information, a blanket denial is no longer sufficient; rather, such a dispute counts as non-dispute with the consequence of Section 138 III ZPO. Rather, the other party must also make a specific presentation, measured against the standard of the presentation to be contested. If it does not adequately comply with this, the court nevertheless presents these facts as actually disputed in the facts of the judgment (cf. § 314 sentence 2 ZPO), whereas their disputes are only assessed as legally irrelevant in the reasons for the decision based on § 138 ZPO .
literature
- Frank Lindenberg: Duty of truth and third party liability of lawyers in civil proceedings. Deutscher Anwaltverlag, Bonn 2002, ISBN 3-8240-5214-8
- Ingeborg Rakete-Dombek, Denying as chicane , Anwaltsblatt 2017, 986
