Strengbeweis und Freiheit richterlicher Überzeugungsbildung

Strengbeweis und Freiheit richterlicher ÜberzeugungsbildungIn German civil procedure, certain sources of evidence may be used to prove a disputed fact. On this basis, the court then decides whether the fact can be considered true. There is a widely held belief that, in accordance with a doctrine of "strict evidence", these means of evidence are restricted to those specified in Titles 6 to 10, Section One, Book Two of the German Code of Civil Procedure (ZPO) in other words, that there is a "numerus clausus".

In German civil procedure, certain sources of evidence may be used to prove a disputed fact. On this basis, the court then decides whether the fact can be considered true. There is a widely held belief that, in accordance with a doctrine of "strict evidence", these means of evidence are restricted to those specified in Titles 6 to 10, Section One, Book Two of the German Code of Civil Procedure (ZPO) - in other words, that there is a "numerus clausus". Joshua Fisher's study refutes this assumption by interpreting the first sentence in paragraph one of the code's Section 286 and examining the purposes served by the formalities of the taking of evidence set out in Sections 284 para. 1 sentence 1, and 355 to 484 of the ZPO. In this way, the difficult interplay between these norms and the concept of free proof enshrined in Section 286 is resolved.