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Konstrukcja dowodu prima facie na tle niemieckiej instytucji der Anscheinsbeweis

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Kubień K.

Kwartalnik Prawa Prywatnego

2011

vol. 20

issue 1

233-257

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.

Res ipsa loquitur, czyli dowód prima facie w common law?

100%

Kubień K.

Kwartalnik Prawa Prywatnego

2013

vol. 22

issue 1

159-187

In common law there is a legal institution called “res ipsa loquitur”. Although some say it is no more than a convenient phrase, many argue it is fully developed legal doctrine of great meaning and influence. Both sides of the dispute admit, that a judgment of the Court of Exchequer rendered by Charles Edward Pollock from 1863 gave birth to this legal institution. In Polish law there have been attempts to implement the doctrine of res ipsa loquitur. These attempts failed. Nevertheless a similar legal institution of unknown provenance is existing also in polish law. It is called “prima facie proof” and can be compared to the german doctrine of “der Anscheinsbeweis”. This “prima facie proof” doctrine emerged in the late 50’s of the XXth century. It sounds useful to analyze its older cousin. Maybe they have more in common, than is commonly acknowledged or perceived. But maybe they are no more than a rather loose acquaintance. In either case it seems interesting and important to study this foreign institution of res ipsa loquitur in order to gain a better understanding of the own legal system. For the mentioned reasons the doctrine shall be given a detailed analysis. After a short introduction, in the first part of the article the creation and the development of the doctrine is analyzed. The basic cases associated with the doctrine, which are well established, are presented. Then, the evolution of the doctrine is traced. The second part deals with the legal concepts of the institution of res ipsa loquitur. As the doctrine is applied in many common law jurisdictions in different ways, a generalist approach is being chosen. The most common views are presented. A third part deals with the specific requirements, that are demanded, in order to apply the res ipsa loquitur doctrine. A forth part concerns the scope of application of the doctrine. An overview of different jurisdictions and cases is provided. At the end some conclusions are made. The question is raised once again, whether the res ipsa loquitur doctrine may or should be widely applied in polish law. A short resume of the institution in both legal system accompanied by examples of typical applications of the institution shows, that in both system the judge could often come to the same conclusion, nevertheless on different grounds. While in common law res ipsa loquitur permits the judge to draw a conclusion on the basis of mere evaluation of evidence, in polish law a particular legal regulation is required. Interestingly in many common cases these particular regulations exist. Meanwhile the doctrine of res ipsa loquitur itself would be hardly applicable in polish law. In most cases it would probably be deemed an abuse of discretion. The polish legal system is different than the common law. A different standard of evidence is being used. While common law is satisfied with a preponderance of probability, the polish legal system demands certainty. For this and other reasons there is no space for the doctrine of res ipsa loquitur in the contemporary polish law.

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2 Kwartalnik Prawa Prywatnego

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2 Kubień K.

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Konstrukcja dowodu prima facie na tle niemieckiej instytucji der Anscheinsbeweis

Res ipsa loquitur, czyli dowód prima facie w common law?