Affidavit

The affidavit ( according to the old spelling, as it is, for example, still used in the Criminal Code: affidavit ) or affidavit (in short " E. V. " or " EV" ) under German law a specific insistence with which the one who makes such insurance, reiterating that a certain statement is true. The term also occurs in the form that the law provides that a person is obliged to insure something on oath.

The definition needs to be a generic one, because the affidavit not only found in her well-known application in the context of enforcement proceedings for the determination of the debtor's property, but outside of enforcement across different processes and process situations before courts or authorities.

In its essence, the affidavit a means of proof, with facts to be made and their accuracy is particularly insured. While usually the method of Strictly evidence applicable in judicial proceedings in which testimony of witnesses or parties usually at an oral hearing shall be made ​​and can be an additional confirmation in the form of the meeting worked in court oath is the assurance of an oath place in certain cases approved somewhat simplified proof by the less stringent rules of free proof. Here is a written formulation of the dispensed material facts is possible. In addition, the accuracy of the information on oath is held to insure. The exact wording of insurance is required for the individual use cases partial in the law.

Specific legal significance attained the affidavit by the fact that according to § 156 of the Criminal Code (StGB ) the submission of a false affidavit is a criminal offense.

Applications are once insuring the accuracy and completeness of asset information of the debtor under the civil enforcement pursuant to § 802c para 3 of Civil Procedure ( ZPO) or pursuant to § 284 para 3 Fiscal Code ( AO), and also the affidavit of the revenue of a management according to § 259 German Civil Code (BGB ) or the completeness of a directory on an aggregate of objects according to § 260 BGB. In the Civil Procedure Law ( § 294 ZPO ) is the affidavit of one of the possible evidence in cases where no strict proof is required, but the prima facie evidence is admitted. Even in administrative law finds the affidavit often apply when it comes to that as evidence someone is to an authority confirm the accuracy of a statement.

• 5.1 Legal basis

Criminal consequences

Pursuant to § 156 of the Criminal Code making a false affidavit ( Alternative 1 ) or reliance on such insurance (2nd alternative ) to a competent authority with up to three years' imprisonment or a fine will be punished.

The extent to which an affidavit is false, is determined by the scope and limits of the obligation to be truthful in relation to the proceeding and the rules of the procedure. A witness in court, for example, only report facts and accordingly also make only a deliberately false insurance if this false fact contains perceptions. Likewise, for example, in the preliminary injunction proceedings, § 936 in connection with § 920 para 2 CCP, in court only relevant facts, which affect the particular claim; false demanding neutral facts as the content of the affidavit are therefore irrelevant and not punishable.

In an affidavit, which refers to a property information of the debtor under § 802c paragraph 2 ZPO (in force from 1 January 2013, previously in accordance with § 807 ZPO), so are only facts on the issue of falsity of the insurance under penalty of perjury relevant, which are required by Code of Civil Procedure § 802c paragraph 2, ie in particular the entire current active assets of the debtor. Wrong information about debt or worthless objects as are irrelevant in the context of § 156 of the Criminal Code.

The responsibility of a public authority for the acceptance of an affidavit presupposes a special power of the Authority decrease in specific procedures and subject matter. In addition, the insurance must also be permitted; eg, no insurance be taken on oath of a defendant by the court. If a deliberately false insurance taken before a non-competent authority, there is no criminal liability under § 156 of the Criminal Code; but it could be other offenses are concerned, about procedural fraud.

Basically, it shall not be necessary that the responsibility for acceptance is expressly mentioned in the law. However applies in the context of official administrative procedure, ie the delivery of the affidavit before an administrative authority, however, for authorities § 27 Administrative Procedures Act or the corresponding country standard or § 23 SGB X.

In criminal proceedings, prosecutors and police ruled out as competent authority for lack of private formal evidentiary hearing as competent authorities of regularly; Criminal courts can not lose weight insurance under penalty of perjury in criminal proceedings the accused as well, but with witnesses, this is generally permitted.

In civil court proceedings (and thus before the administrative, labor and social courts ), the court must periodically the parties, witnesses and other participants remove the insurance under penalty of perjury, unless the law provides for a presumption, such as § 294 ZPO, or the court under the Free evidentiary proceedings requests it; However, as far as the formal method of proof is necessary ( for example in controversial statements about party claims ), acceptance is not permitted, so that eliminated a criminal offense. A voluntarily given (wrong ) insurance is no penalty in the absence of request by the court under certain circumstances.

The negligently false affidavit is punishable under § 161 paragraph 1 PC with up to 1 year imprisonment or a fine. Negligence may for example be in negligence in the delivery of the statement about the conscious sign of a substantively false affidavit without reading the contents or when inquiries are necessary for the voluntary surrender of insurance for the right content, but which are omitted.

Corrected the time testifying the deliberate false affidavit, the court may mitigate the sentence or completely dispense with punishment, § 158, paragraph 1 of the Criminal Code. However, in case the timely correction of a negligent false affidavit omitted pursuant to § 161 para 2 the punishment.

The correction does not necessarily based on free will, it is solely on the correction. You must be a substantial in all respects true and contain full description and include a distancing from the previous statement; revocation is not sufficient if not refuse to give evidence is otherwise. The adjustment may possibly even be made in special circumstances, by estoppel. It must, however, be addressed to the receiving it shall be addressed to the body or body to consider the affidavit (eg court ). In addition, the correction must be made ​​in good time, see § 158, paragraph 2 of the Criminal Code.

The attempt by the intentional or negligent false affidavit is not punishable. The attempt of incitement to a false affidavit, however, according to § 159 StGB.

When applying for a loan or use of installment payments, the lender often requires the disclosure of financial circumstances. However, it may not require an affidavit. However, if the financial circumstances against a lender misrepresented, you can for fraud pursuant to § 263 of the Criminal Code, make any 265b of the Penal Code punishable under §.

Affidavit as part of the enforcement

New concept of education by January 1, 2013 came into force reform

To succeed with the foreclosure, the creditor is often reliant on the debtor makes him information on assets, may be enforced in the. The law requires the debtor to and an additional confirmation of the correctness and completeness of the information, which creates inaccuracy or incompleteness in a criminal offense.

The terms used in the law have changed over time. Originally called the law affirming bankruptcy. The Law of 26 June 1970, the bankruptcy was abolished and instead spoke in § 915 ZPO old version of affidavit. Nevertheless, the term " bankruptcy " is used for a long time and the delivery of the affidavit was also known as " raise your hand " referred to in the vernacular.

Which came into force on 1 January 2013 amendment by the Law on the reform of the investigation into the foreclosure has changed the terms again.

The provision of the information and the requirement to insure the accuracy and completeness under penalty of perjury is now governed by § 802c Code of Civil Procedure, entitled " Information assets of the debtor ." For the sake of entry in the list of debtors after § 882c ZPO is no longer the delivery of the affidavit entered as such, but the presence of the 1 CCP referred to in § 882c Para leading to the registration of reasons in favor of asset information or the register and the term not mention the affidavit. Therefore, the duty of the debtor and their requirements now be treated under the new law in the article information assets of the debtor.

Furthermore, although the accuracy and completeness of information in asset information from the debtor under penalty of perjury to insure ( § 802c para 3 ZPO).

Transitional continue existing arrangements

Enforcement orders that are of inputs before January 1, 2013, continue to perform after the transitional provision in § 39 EGZPO accordance with the applicable until 31 December 2012. This applies to the administrative enforcement if the provision of information or detention has been ordered before 1 January 2013. In such cases, the registration will continue to be made in accordance with § 915 ZPO Schuldnerverzeichnis old version, so this according to § § 882B ff ZPO still persists for some time in addition to the newly designed debtor directory. Only for these transitional cases, the following procedural rules still apply:

Requirements

The creditor instructed the bailiff to the enforcement of a title. Power of the creditor proves that he can not fully attain his satisfaction by seizing, or has not performed an attachment to a complete satisfaction of the creditor, or the debtor has refused the search of his home or the bailiff despite the debtor notice not repeated in his encountered apartment, then a debtor's declaration (and this is an affidavit ) store. Power of the debtor proves that he can settle the existing obligation to pay within six months, the bailiff may make a payment agreement and the deadline to adjourn this period ( § 900 para 3, § 806b ZPO old version).

Since debtor does not voluntarily are often willing to make the affidavit, denied the charge at the request of the creditor against a debtor who has not appeared to Deadline without apology or otherwise unwarranted, by the District Court arrest warrant issued ( § 901 ZPO old version). With the arrest warrant permission is accompanied by the apartment of the debtor to enter forcibly and search them after the debtor. In practice, as are the vast majority of the debtor's insurance after submission of the warrant readily, so that the actual shipment is unnecessary in the detention center. The actual enforcement of custody is required in far less than one percent of the issued warrants. The bailiff may levy the reluctant debtor up to six months in a detention center to accommodate ( § 913 ZPO old version). If the debtor the affidavit from now, the adhesive should be immediately discontinued. The permissible appeal against the issue of a warrant immediate appeal pursuant to § 793 ZPO.

It shall provide a full list of assets over all of its assets by the debtor and take to insure the Protocol on oath that he had made the information contained therein to the best of my knowledge and belief correct and complete ( § 807 para 3 ZPO old version). Responsible for the decrease of the bailiff (§ 900 ZPO old version). The intentional or negligent delivery of incorrect affidavit is punishable.

Eligible applicants for the decrease in the affidavit, the judgment creditor. The acceptance by the bailiff at the district court in the district where the debtor is domiciled. The tax office is acc. § 284 AO itself entitled to take delivery of the affidavit. The same is true of other administrative authorities ( see, eg, § 16 VwVG BW).

Purpose and consequences

The obligation of a debtor will be entered in a register kept at the responsible local district court debtors' list. From this public directory is privately funded credit reporting agencies ( SCHUFA for example) teach. As a rule, by the creditworthiness of the registered person will at least need to be considered endangered.

Purpose of the procedure is to the creditors to provide an overview of the income and assets of the debtor, so that they can check whether ( and if so which ) enforcement measures have success.

Affidavit for accountability

Not in connection with a foreclosure is the affidavit pursuant to § 259 para 2 BGB. The debtor is obliged, because he has to put on a contractual or statutory basis accountability and when circumstances suggest the suspicion that he is of their obligation to report information about revenue, has not complied with the necessary care. It is here mostly for information on other conditions and not to provide information about their own financial circumstances.

Who is obliged to provide a certain piece of information ( accountability ), is to be stopped by the affidavit of the truth.

Substantiation

Furthermore, playing the affidavit a role in the substantiation ( § 294 para 1 CCP ), unless the law permits such. To this end, the submitting evidence can support as a means of substantiation to prove an actual assertion on an affidavit ( even his own ). The affidavit does not require any particular form.