State
That State or that Lecture one the whole of the statements represents, which it sets up during the process. One differentiates between right opinions and fact lecture. The lecture from facts is particularly in of importance. The civil court has actual circumstances not officially to clear up, but the fact lecture of the parties at the basis to put ( or teaching principle) and proof to raise concerning this if necessary (see more near for this ).
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The legal situation in the German civil proceedings
Those (ZPO) regulates the explanation and lecture obligations of the parties more near in § 138.
Truth obligation of the parties
This contains first in § 138 Abs. 1 the standardisation of the truth obligation of the party. (The parties have to make their declarations over actual circumstances completely and in accordance with the truth). As far as also a complete lecture is demanded here, this does not mean that the party would be obligated to speak everything which could belong to the thing. The obligation to the completeness is rather a Unterfall of the truth obligation and means that the explanation of the party may not become untrue by omissions. In all other respects incomplete or unsubstantiiertes stating is sanctioned only in as much, as it regularly the prospects of the party to obsiegen during the process will diminish.
Truth obligation of the attorney
The attorney is obligated to the truth in the civil proceedings. It may speak untrue facts in favor of its mandator neither nor conceal true facts, if this leads to an untrue circumstances representation. Denying of true facts is likewise forbidden to it. Its truth obligation results from its position as organ of the justice (§ 1 BRAO). It is obligated to participate in the implementation and maintenance of the justice what forbids untruths before court to it because of the danger of miscarriages of justice. If it speaks nevertheless untruths and loses the opposite side thereby the process, it clings to this on payment of damages. This is a case of the so-called third adhesion, because the lawyer clings to not his mandator, but a Nichtmandanten (third) here.
Explanation obligation
In § 138 Abs. 2 and 3 the explanation obligation of each party is then stated more near. Here Abs determines. 2, that each party over the facts maintained by the opponent to explain itself has. This explanation can go by with the fact in principle that opposing stating is entitled or is denied either.
Been entitled stating
If the opponent confesses a factual statement of the other party too, then lies to that extent in indisputable lecture forwards. Important it is here that the court is bound to the indisputable party stating. It may not raise a proof over questions, which do not stand between the parties of a civil process in controversy. Even if the court for other reasons of the incorrectness of indisputable stating is convinced, it must nevertheless align its legal appreciation at the indisputable statement on a case of the parties.
The regulations over the indisputable lecture are a direct consequence its that there is straight no office obligation to explanation in the civil proceedings. The opposite applies approximately in : Here comes the court to § 244 Abs. 2 StPO a comprehensive obligation for circumstances clearing-up too. The court would be therefore prevented from it, a confession of the unchecked its condemnation to reason, because circumstances between defense and is indisputable.
Denied stating
If a party denies a stating of the others, then it is to be examined first whether one of the parties for respective stating Proof offered, thus designated, by which the denied (or: contentious) stating will is. Here all also from other rules of procedure admitted evidence comes, like that in consideration. For a fact substantial for the decision if a proof was offered, then the court this proof must raise. If it judges a stating for proven after accomplished proof collection, and must do the court knows this stating its also to reason if the opposite side holds to its denying. If the proof succeeds not, or is missing it from the front in here at a proof offer, then the court must ask, which of the parties for the contentious circumstance it would be and the fact that a clearing-up was not possible, to the disadvantage evenly this party rate.
Missing explanation
§ 138 Abs. the consequence determines itself 3, from an offence against the obligation to the complete explanation in accordance with § 138 Abs. 2 results in: In this case opposing stating is as to be treated been entitled stating. One speaks here of that Confession fiction.
Ignorance
In the context of stating a party circumstances can be maintained, which would like to grant the opposite side neither, nor substantiated to deny can. An example would be stating one as arising landlord, that for the reason of its Action for eviction implements, other tenants over the deplored ones would have weighted, because this does not keep the house regulation. The deplored one cannot know whether other tenants weighted opposite the landlord. In the context of its truth obligation (s.o.) he can explain himself thus if necessary about it, whether he kept the house regulation, to the behavior of the other tenants however nothing to say. In this case it can itself over stating concerning the plaintiff with ignorance explain. The explanation with ignorance generally becomes as Deny with ignorance designated, although it does not concern here strictly taken denying. However the legal consequences of the explanation with ignorance are the same, as those of denying: circumstances, over which a party permissible-proves with ignorance explained, are not indisputable stating, so that either proof are raised or according to the rules of the burden of proof be decided must.
For the explanation with ignorance § 138 Abs intend. 4, that a party only over such facts with ignorance explain may, which concern neither their own actions still the subject of their own perception were. In the example already mentioned thus the tenant arising during the process as a defendant may explain itself over the expressions other tenants with ignorance. He must grant its own behavior however either or with a concrete statement (it is incorrect that the deplored one was noisy at night, on the contrary it starting from 22 o'clock always avoided to hear louder than with household-noise level radio or to trouble otherwise its renting tenants by noise) deny.
Substantiated stating
The question, as concretely or stating substantiates be must, is in individual cases again and again denied. Generally it applies that the lecture of a party does not have to describe it to reason which are appropriate life circumstances in all details, but that it is sufficient, if the circumstances are mentioned, from those itself the legal conditions devoted, which are appropriate for the erstrebten legal consequence to reason.
Literature
Dr. Franc lime tree mountain: Truth obligation and third adhesion of the attorney in the civil proceeding, German lawyer publishing house, Bonn 2002, ISBN 3-8240-5214-8
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