Independent evidence procedure
The independent evidence procedure (formerly: evidence preservation procedure) is a judicial procedure in German civil proceedings that can precede the actual civil proceedings, the main proceedings, by means of a corresponding application, in order to guarantee evidence preservation in cases with a certain urgency if there is a legal interest in this , or for the purpose of preventing further contentious legal proceedings on the basis of the results obtained. The reason for this is the sometimes long duration of the proceedings , which gives cause for concern about the loss of evidence .
A separate procedure is necessary for this, as an expert unilaterally engaged by a party does not guarantee independence like a court-appointed expert. Private reports are therefore not admitted as evidence in court, but only as a qualified party presentation . Eliminating the controversial situation after such a private assessment can therefore prevent evidence .
Meaning of the independent evidence process
The independent evidence procedure serves to accelerate the process , as it enables evidence to be gathered relatively quickly . Furthermore - since it can also be carried out without a pending legal dispute - it may also facilitate the out-of-court settlement of the parties and thus also serve the process economy .
In independent evidence proceedings, it can only be about factual statements . Decisions with legal evaluation cannot be made. However, higher court case law allows the determination of a “ technical causation rate ” if this can be the basis for settlement negotiations.
The independent evidence procedure in civil disputes under construction law is of particular importance ; But it also occurs in other civil litigation and can even be used in administrative disputes. In the meantime, it is also considered certain that independent evidence proceedings are permissible in the doctor's liability process.
The independent evidence procedure as an exception to the principle of the immediacy of the taking of evidence
In principle, the judging court should make its own and immediate impression of the disputed facts to be proven (principle of the immediacy of the taking of evidence). The ZPO makes an exception to this through the independent evidence procedure § 485 ZPO. This breach of the principle of the immediacy of the taking of evidence is limited to exceptions according to Section 485 of the German Code of Civil Procedure (ZPO) if the applicant has a legitimate interest and this is presented to the court in the application. The purpose of Section 485, Paragraph 1 of the German Code of Civil Procedure is to prevent the threat of loss of evidence or to make the evidence more difficult. On December 17, 1990, the legislature expanded the possibilities to apply for an independent evidence procedure with Section 485 (2) ZPO by expanding the legal interest. It has been worded more generally and is presumed by law if it serves to avoid litigation.
Legal foundations in civil proceedings
The independent evidence procedure is regulated in § § 485 to § 494a ZPO .
Requirements of the independent evidence procedure according to § 485 ZPO
A distinction must be made between three types of requirements for the implementation of the independent evidence procedure:
- The implementation of evidence proceedings with the consent of the opponent ( Section 485, Paragraph 1, 1st Hs. ZPO).
- When the gathering of evidence is jeopardized by loss of evidence . ( § 485 Abs. 1 2nd Hs. ZPO) (loss of evidence is a sub-case of legal interest)
- The implementation of evidence proceedings in accordance with Section 485 (2) ZPO if there is a legal interest in establishing the facts mentioned in Section 485 (2) ZPO. The legal interest according to § 485 Abs. 2 ZPO is presumed by law if it can serve to avoid litigation. The evidence process is limited to the written assessment by an expert as follows,
- According to Section 485, Paragraph 2, Clause 1, No. 1 of the German Code of Civil Procedure: condition or value of a thing or the condition of a person.
- According to § 485 Paragraph 2 Clause 1 No. 2 ZPO: The cause of personal injury or property damage or a material defect .
- According to Section 485, Paragraph 2, Clause 1, No. 3 of the German Code of Civil Procedure (ZPO): The cost of eliminating personal injury or property damage or a material defect.
General requirements for admissible evidence proceedings
The factual and local jurisdiction is basically based on the jurisdiction in the main proceedings ( Section 486 (1) and (2) ZPO). The decisive factor here is whether the court has jurisdiction after the party ’s presentation. Only if the taking of evidence would no longer be possible as a result of a particular danger , the district court in whose district there is a person to be questioned or assessed or a thing to be inspected or assessed is located ( Section 486 para 3 ZPO).
Insofar as independent evidence proceedings were carried out before an incompetent court, the applicant can no longer object to this in the main proceedings ( Section 486 (2) sentence 2 ZPO). Corresponding notices of lack of jurisdiction must therefore still be raised in the independent evidence procedure. However, the respondent can also complain about the lack of jurisdiction in the main proceedings, which means that after a referral to the competent court, the result of the independent evidence procedure would no longer be used as evidence.
Next, is already provided that an assessment was carried out, according to § 485 3 Code of Civil Procedure, Section re-evaluation as part of an independent evidentiary proceedings only if the requirements of. § 412 ZPO possible; Section 412 of the German Code of Civil Procedure only allows a new assessment if the expert was successfully rejected due to concerns about bias or if the report provided is inadequate. It is irrelevant here whether this arrangement of the assessment was made in an earlier or not yet completed process, in an earlier evidence procedure or in the same evidence procedure. For this reason, a counter-motion on the same evidence is inadmissible.
Admissibility of the consensual evidence procedure
A consensual evidence procedure is always permissible. It can also be requested by name if a legal dispute is already pending or pending , but also without this being the case.
It should be noted that the once given consent to carry out the evidence procedure cannot be withdrawn during the procedure. It is therefore not possible to measure such an amicable procedure against the higher admissibility requirements of the other types of independent evidence procedure.
Admissibility of evidence proceedings due to concerns about loss of evidence
There must be a risk that the evidence will be lost or that it will be difficult to use. This is often the case with construction defects, the detection of which becomes more difficult as construction progresses, or when a witness goes abroad for a longer period of time or is seriously ill at an old age. An application based on Section 485, Paragraph 1, 2nd Hs. ZPO may in individual cases be illegal and therefore inadmissible if the unchanged maintenance of the current state is possible and reasonable.
For the admissibility of the independent evidence procedure, it is unimportant whether the evidence issue is relevant or whether there is a chance of success for the main proceedings .
Admissibility of evidence proceedings in accordance with Section 485 (2) ZPO
An evidence preservation procedure according to § 485 Abs. 2 ZPO requires the existence of a legal interest . The term is to be understood rather broadly. A legal interest exists when evidence proceedings are suitable to avoid a legal dispute between the parties. It is sufficient for this that, after the presentation of the facts, the request for evidence is suitable to establish the establishment of claims between the parties. It is therefore sufficient if a legal relationship is asserted between the parties. The impending statute of limitations can then justify the legal interest. However, there is no legal interest if claims between the parties cannot exist after the presentation of the facts. It is also not applicable if a legal dispute between the parties cannot be avoided or a court decision or settlement has already been made. Contrary to an opinion that was sometimes held in the past, such an interest does not automatically disappear in medical liability proceedings, even if the independent evidence procedure may occur less often there.
After personal injury, it is generally permissible to determine the lost profit in accordance with Section 485 (2) sentence 1 no. 3 ZPO. The applicant must present sufficient connecting facts for the coveted determination by the expert. In particular, the court is fundamentally prohibited from carrying out a conclusiveness or relevance check as part of the independent evidence procedure. Accordingly, a legal interest can only be denied in completely unambiguous cases in which it is evident that the alleged claim cannot exist under any circumstances. ... According to these principles, the application to carry out independent evidence proceedings to determine the profit lost by the applicant is generally permissible because the applicant has a legal interest in determining the cost of repairing personal injury suffered by him ( Section 485 (2) sentence 1 No. 3 ZPO). The determination of the profit that the applicant may have lost by means of a written assessment can help avoid a legal dispute. It is also a matter of determining the cost of eliminating personal injury. This is because personal injuries also include disadvantages that can be traced back to the damage to health, i.e. result from the damage caused to the person. If compensation is to be paid due to the injury to a person, the injured party can demand reimbursement of the necessary production costs in accordance with Section 249 of the German Civil Code , i.e. H. in particular the costs for necessary medical treatment as well as health and care costs. In addition, the damage to be compensated in accordance with § 252 , § 842 BGB also includes lost profit.
Carrying out the taking of evidence
The taking of evidence is based on the general regulations.
Consequences of carrying out independent evidence proceedings
First of all, the implementation of an independent evidence procedure leads to the suspension of the statute of limitations according to Section 204 (1) No. 7 BGB.
Furthermore, after an independent evidence procedure has been carried out, both parties to the proceedings can refer to the result of the evidence preservation procedure as if the evidence had been taken in the main trial itself ( Section 493 ZPO). A new assessment can only be carried out within the framework of § 412 ZPO or if the other party objects and did not appear through no fault of their own ( § 493 (2) ZPO).
Dispute resolution in independent evidence proceedings
The third party announcement is also permissible in independent evidence proceedings, although Section 72 (2) ZPO speaks of a legal dispute . With regard to the result of the independent evidence procedure, the intervention effect of Section 68 ZPO also applies.
Independent evidence procedure in the administrative process
According to § 98 VwGO , §§ 484–494 ZPO are also applicable in administrative court proceedings . Independent evidence proceedings can therefore also be carried out before the administrative courts. The principles set out for civil proceedings apply accordingly. It is therefore possible, for example, to carry out an independent evidence procedure before the administrative courts in objection proceedings .
And damage, in the context of official liability of general jurisdiction assigned to it. Since the administrative process cannot deal with property damage, personal injury or material defects, the independent evidence procedure is limited here to cases in which it is carried out by mutual agreement or the loss of evidence is to be feared.
Preservation of evidence in criminal proceedings
Section 285, Paragraph 1, Sentence 2 of the Code of Criminal Procedure provides for the possibility ofopening a procedure to preserveevidence even in the absence of the accused . However, a main hearing does not take place ( Section 285 (1) sentence 1 StPO). The procedure is based on Section 286 to Section 294 of the Code of Criminal Procedure ( Section 285 (2) of the Code of Criminal Procedure).
The prerequisite here is less that possible evidence cannot possibly be used in a long process, but rather that the accused will probably not be available for a main hearing in good time - for example because he is permanently abroad.
Legal situation in Austria
In §§ 384 bis 389 of the Austrian Code of Civil Procedure similar rules to preserve evidence as provided in German procedural law. In Austria, too, it is a prerequisite that evidence is no longer available or only under difficult conditions at the time the evidence is taken during the civil proceedings, or that the current state of an item is to be determined. The party providing the evidence is authorized to carry out this. The trial court is generally responsible and in urgent cases or if a legal dispute is not yet pending, the locally competent district court .
literature
- Jürgen Ulrich: Independent evidence procedure with experts. 2004, ISBN 3-8041-3742-3 .
- Andreas Fink: The independent evidence procedure in construction matters. German Anwalt-Verl., Bonn 2005, ISBN 3-8240-0710-X .
Web links
- Preservation of evidence procedure (general)
- Civil construction process
- Rental process
- Preservation of evidence proceedings, tenant lexicon
Individual evidence
- ↑ OLG Nuremberg MedR 2009, 115.
- ↑ openJur eV: Higher Regional Court Nuremberg, decision of March 7, 2011 - Az. 12 W 456/11. Retrieved February 16, 2017 .
- ↑ on the dispute: OLG Schleswig, decision of June 12, 2009 . Az. 16 65/05; OLG Dresden, decision of March 18, 2013 - 4 W 243/13 -.
- ^ BGH, ruling of September 16, 2004 , Az. III ZB 33/04, full text = NJW 2004, 3488.
- ^ BGH, decision of October 20, 2009 , Az. VI ZB 53/08, full text.
- ^ Heinz Barta et al .: Civil Law - Outline and Introduction to Legal Thought, V.5., Civil Law-online
