Konstrukcja dowodu prima facie na tle niemieckiej instytucji der Anscheinsbeweis
RES IPSA LOQUITUR IN GERMANY AND POLAND - DER ANSCHEINSBEWEIS AND PRIMA FACIE PROOF
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In both Polish and German law there is a legal institution similar to the common law doctrine of 'res ipsa loquitur. In both Poland and Germany this legal institution is called prima facie proof, or respectively 'dowód prima facie' and 'der Anscheinsbeweis'. In Poland prima facie proof is used almost exclusively in inventory deficit and medical malpractice cases. In all mentioned jurisdictions prima facie proof has the function of easing the burden of proof. In Germany prima facie proof is commonly used. There are some minor exceptions, such as the proof of someone's intention. In Germany the doctrine of prima facie proof is well established and a predominant view of scholars, which is consistent with the rulings of the Federal High Court of Justice (BGH), can be identified. In Poland there are great discrepancies among the scholars. On the contrary, the Polish High Court (SN) demonstrates a clear understanding of the meaning of the doctrine. The view represented by the Polish High Court is clearly underrepresented among Polish scholars. The described phenomena give opportunity to compare both institutions of law in order to learn and draw conclusions for the future. In the first part of the article the Polish prima facie proof institution is analyzed. The different views of the doctrine are presented. The second part deals with the German construction of prima facie proof. The four legal concepts of the institution are presented: the burden of proof theory, the standard of evidence theory, the substantive law theory, the evaluation of evidence theory. Consequently the dominant theory in Germany is analyzed in detail. At the end some conclusions are made. The view of the Polish high court is very similar to the German concept presented by the standard of evidence theory. The essence of the concept is that prima facie proof when applied has the function of lowering the standard of evidence. Such a decrease of the standard of evidence by the court has been perceived inacceptable in Germany where regulation of the standard of evidence is reserved to laws enacted by the Parliament. Therefore in Germany the evaluation of evidence theory prevailed. In Poland the standard of evidence is also generally set up by laws. Nethertheless the Polish High Court clearly states that prima facie proof has the function of lowering the standard of evidence. This interesting phenomenom is judge-made law, which is otherwise generally considered prohibited in Poland. Prima facie proof has the important function of correcting the system of burden of proof in both Poland and Germany, which is particularly important because of the high standard of evidence applied in these countries. Therefore a further study of the phenomenom is necessary. It should be better described and analyzed, additional fields of application considered.
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