Secondary burden of proof

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The secondary burden of presentation is a term from German civil procedural law .

If a party to a civil process has to prove factual circumstances that belong to the area of ​​the opposing party that is beyond their view, it will face considerable problems with evidence, since requests for evidence and investigation are not permitted in civil proceedings. Substantive legal information claims exist only in certain areas. A reversal of the burden of proof is alien to the system in such cases; the civil court jurisprudence rejects a procedural duty to provide information on the part of the litigant who is not burdened with evidence . According to civil court case law, the principle that no litigant is obliged to provide the opponent with the information required to win the case must be adhered to. According to that case is merely to consider in each individual case is expected of whether, exceptionally, the opposing party who knows the essential facts as opposed to standing outside the relevant course of events exposition obliged under its Declaration load according to § 138 II ZPO, the proof requirement, a process accepted contemporary discourse by to enable more detailed information about the relevant relationships belonging to his area of ​​perception. If otherwise fundamentally protected positions of a party to the litigation are thwarted, such a gradation of the burden of proof is even constitutionally required. This does not change the burden of proof, but is intended to prevent a decision by the civil court based on the burden of proof principles. In order to avoid inadmissible research , the undisputed submission or the submission to be proven by the party subject to evidence must provide tangible evidence for his assertion. If the opponent then replied in a substantiated manner, the claimant bears the full burden of proof.

The secondary burden of proof can also result in an obligation to investigate. However, there is no obligation to name witnesses or to give their address for summons, because this is already a matter of providing evidence and possibly preventing evidence . From this point of view, there is also no obligation to submit certificates and other documents. If a litigant is allowed to contest an opposing factual assertion with ignorance according to § 138 ZPO , their secondary burden of proof does not apply.

example

A film rental company is filing a claim for damages because of a film that has been placed on an illegal swap exchange by the defendant's connection . The film distributor satisfies its (primary) burden of presentation in that the plaintiff film distributor shows that the upload was made from the defendant's connection. However, if the defendant meets his secondary burden of proof by showing that another person who had access to the connection could have placed the film in the illegal swap exchange, the plaintiff film distributor must now again provide full evidence that the defendant is at fault at the copyright infringement . The defendant connection owner does not have to determine himself who the actual perpetrator was.

A vehicle owner has a secondary burden of proof if a private operator of a free parking space claims him for an "increased parking fee". The owner must explain who was considered to be the driver of the vehicle at the respective point in time in order to effectively challenge his or her driver status.

literature

  • Wolfgang Kuntz, The case law of the BGH on the secondary burden of presentation and on the burden of proof in file sharing cases, in: Juris, The Monthly Journal 2017, 229
  • Rolf Stürner : The duty of the parties to the civil process to provide information. Mohr, Tübingen 1976, ISBN 3-16-639152-5 .

Individual evidence

  1. ^ Zöller (legal commentary ) , commentary on the ZPO, 31st edition 2016, Rn. 8c before § 284 ZPO
  2. ^ Zöller (legal commentary), commentary on the ZPO, 31st edition 2016, Rn. 36 before § 284 ZPO
  3. ^ Decision of the BGH NJW 1990, 3151
  4. ^ Zöller (legal commentary), commentary on the ZPO, 31st edition 2016, Rn. 34 before § 284 ZPO
  5. ^ Zöller (legal commentary), commentary on the ZPO, 31st edition 2016, Rn. 8b to § 138 ZPO
  6. ↑ BVerfG , NJW 2000, 1483
  7. ^ Zöller (legal commentary), commentary on the ZPO, 31st edition 2016, Rn. 34 before § 284 ZPO
  8. ↑ BGH NJW 2012, 3774
  9. ^ Zöller (legal commentary), commentary on the ZPO, 31st edition 2016, Rn. 34 before § 284 ZPO
  10. ↑ a b BGH NJW 2014, 2360
  11. ↑ BGH NJW 2008, 982
  12. ↑ BGH NJW 2007, 2989
  13. ^ Dölling, NJW 2013, 3126
  14. ↑ BGH, judgment of October 6, 2016 - I ZR 154/15
  15. ↑ BGH, judgment of December 18, 2019 - XII ZR 13/19