Presumption

In the law, a presumption supported the evidence on experiences allow ( actual presumption ), shift the burden of proof by law ( rebuttable legal presumption ) or a requirement of proof entirely eliminate ( irrebuttable legal presumption ).

• 2.1 Rebuttable presumption
• 2.2 irrefutable presumption

Actual presumption

An actual conjecture ( actually better guess as to facts ) is when a court based on their own experience or experts of proven facts ( evidence ) can not close on proven facts. For example, from the evidence that the temperature was at a certain point well above the zero point, are closed due to the general experience of the properties of water that a particular person can not be slipped on ice at this time. They say this case that there is a presumption of fact that there was no ice at the place in question.

Note: The following presentation follows the so-called Beweismaßtheorie, which differs based on the required standard of proof between prima facie and actual guess. The Beweismaßtheorie has been found in the literature lately more and more precipitation. However, there is also different schools of thought, in particular, the distinction is not clear partially pulled even in the case law. For the different theories to this distinction the article compare to the prima facie evidence.

Actual guess as a case of indirect evidence

A real guess is part of any indirect evidence that leads to the full satisfaction of the court. An indirect proof is present when a court is not as described immediately, but only based on circumstantial evidence and experience ( in legal terminology experience sets) can convince a fact. Because indirect evidence are the rule rather than the exception, are actual guesses - even if they are often not explicitly designated as such - in legal reality often.

The evidence takes place when indirect evidence using a inductive inference, which can never provide absolute safety even from the perspective of logic, but only leads to a hypothesis about the to be proved facts (see the section problem of induction in the article for induction circuit).

Evidence and standard of proof

Whether it can be considered from an actual presumption or not, is a matter of judicial evidence. A real guess is as I said before, when evidence and experience set together are able to explain the facts to be proved the full satisfaction of the court. Whether this full conviction exists, the court will decide itself ( this is the principle of free movement of judicial evidence, which is the common European legal systems ).

Partly also it is considered that only in the consideration of an actual conjecture a reduction in the standard of proof lies ( mere Credible Make instead of the full conviction ). This would exclude from the application of an actual presumption in all those cases where the standard of proof to the full satisfaction of the court is required, that is, in very many cases in the civil process. Wealth indicator and experience set however to convince the court as part of the free judicial evaluation of evidence of a fact in full ( this is mainly for very safe history records as the initially described example of the freezing point of water is the case ), it is against their consideration also no objection if the full standard of proof is required. The fact alone in any case that a court will not accept a mere hypothesis as to the facts, there is no reduction in the standard of proof.

Accepted by the court evidence and experience rates than for the evidence sufficient, although it is not fully convinced of the facts to be proved and the law actually requires full conviction, there is a reduction in the standard of proof and thus a prima facie case.

Refutation of an actual presumption

If the existence of an actual guess is yes, then this leads to a reversal of the burden of proof: It is on the opposing party to destroy the satisfaction of the court again by presenting further evidence. It can, however, just to be a shaking of the conviction (ie, to the sowing of doubt the Court ), but not the evidence to the contrary ( to the Justify full conviction to the contrary ).

Statutory presumption

The statutory presumption ( iuris praesumtio ) orders by operation of law, that under certain circumstances ( assumption -based) is expected from the presence of other conditions and these are the legal assessment shall be based. Is inferred from the assumption based on facts, one speaks of fact conjecture, it is concluded that the existence or non-existence of a right of legal presumptions.

Rebuttable presumption

Guesses are normally rebuttable, as § 292 S. clarifies 1 CCP: " If the law for the existence of a fact is a guess, so the proof of the contrary is admissible, unless the law prescribes another. " Shifts a rebuttable legal presumption so (unlike the actual presumption so ) the burden of proof. It does not matter here whether the presumption is referred to as such, or whether instead a feature is formulated as a defense, and thus the Defendant the burden of proof (eg, "Liability of suspected fault " as defined in § 831 paragraph 1 sentence 2 BGB ).

An important legal presumption contains about § 1006 para 1 sentence 1 BGB: " For the benefit of the owner of movable property is believed that he was the owner of the thing. " For real estate properties to presumption in § 891 para 1 BGB is included: " Is the basic book for someone entered a law, it shall be presumed that he is entitled the right " This provides legal certainty.; in both cases build on the so aroused warrant on even the rules on the acquisition in good faith by the non-owner. In the process would have to guess, if it were the owner, optionally refuted. Some of the owners may just be a thief or the land registry incorrectly. Anyone who claims it, but bears the burden of proof.

Because a rebuttable presumption in law from the outset leads to a reversal of the burden of proof and not as the actual presumption merely a reversal of the burden of proof is required for their refutation of the evidence to the contrary. There are thus present evidence that satisfies the court full of the presence of the opposite.

Irrebuttable presumption

Is a guess, however, expressly designated by law as irrebuttable or irrefutable ( praesumtio juris et de jure ), so it does not matter whether the suspected situation actually exists: It is those investigations and the associated difficulties of proof should be precisely avoided. As a result, the irrebuttable presumption is thus similar to the fiction. The difference is that an irrefutably presumed fact may also be in reality, while the fiction directs that in reality non-existent conditions are to be regarded as being present.

An example of an irrebuttable presumption is in divorce law § 1566 para 2 BGB: "It is an irrefutable presumption that the marriage has broken down if the spouses have lived apart for three years. " So it does not matter whether in a specific case the marriage is perhaps not failed despite the long living apart. Rather, it is the very purpose of the law that the court must not make any assumptions do.

Literature on the actual assumption

• Velcro Kathrin, Judicial examination duty and burden of proof, AJP 11/2001, 1293 ff
• Max grief, in: Peter Liver / Meier - Hayoz Artur / Merz Hans / Peter Jaeggi / Hans Huber / Friedrich Hans-Peter/Kummer Max, Bernese comment to the Civil Code, Introduction, Article 1 - 10 of the Civil Code, Bern 1962, N 317 f. , 362, 368 to Article 8 of the Civil Code
• Meier Isaac, The standards of proof - a current problem of the Swiss civil procedure, BJM 2/1989, 57 ff, 65
• Prütting Hanns, present problems of proof, a study of modern burden of proof theories and their application in particular in labor, Munich 1983, 23 ff
• Rosenberg Leo / Karlheinz Schwab / Peter Gottwald, Civil Litigation, 15 A. Munich 1993, 660 ff
• Bird Oscar / Spühler Karl, floor plan of civil procedural law, and international civil procedure law of Switzerland, 7 A. Bern 2001, 10 N 50