Definition and significance of counter-evidence
The concept Counter-evidence refers in German law to a procedural possibility to oppose the evidence presented by the opposing party by introducing one’s own evidence to weaken or refute it. The objective is to undermine or completely disprove the probative value of the primary evidence. Thus, counter-evidence represents a core element of the adversarial principle in proceedings before civil, criminal, and administrative courts.
Legal classification and function
Role in evidentiary proceedings
Counter-evidence is a key component of judicial evidentiary proceedings. In contrast to proof to the contrary, which requires proving the opposite of an asserted fact to the court’s satisfaction, it is sufficient for counter-evidence to give rise to serious doubts as to the correctness of the opponent’s evidence. This allows the court the freedom to decide whether or not it believes the opposing party’s assertion.
Legal basis
Civil procedure law
In civil proceedings, counter-evidence is principally governed by §§ 284 et seq. of the Code of Civil Procedure (ZPO). Counter-evidence is particularly common when prima facie evidence is provided or in the context of presumptions (e.g., § 1006 BGB – presumption of ownership for the possessor).
Criminal procedure law
In criminal proceedings, counter-evidence is also possible and is complemented by the principle of free evaluation of evidence (§ 261 StPO). Here, counter-evidence can be brought to challenge the evidence presented or to refute a chain of circumstantial evidence.
Administrative procedure
Counter-evidence is also possible in administrative proceedings, provided that the administrative court forms its own conviction based on evidence introduced by the parties (§ 108 para. 1 sentence 1 VwGO).
Distinction: Counter-evidence and proof to the contrary
It is essential to distinguish between the terms Counter-evidence and proof to the contrary. While counter-evidence succeeds as soon as the court, after taking evidence, has doubts about the truth of the alleged fact, proof to the contrary requires that the opposite of the fact is proven. Proof to the contrary is particularly relevant for statutory presumptions under § 292 ZPO.
Subject matter and admissible means of counter-evidence
Subject of evidence
With counter-evidence, any fact alleged by the opposing party and substantiated by offered evidence can be attacked, such as witness testimony, documents, or expert opinions.
Means of evidence
In civil and criminal proceedings, all legally recognized means of evidence can be used for providing counter-evidence. These include in particular:
- Witnesses
- Documents
- Experts
- Inspection (of things or places)
- Examination or hearing of the party
There is no mandatory form for announcing counter-evidence; it can be introduced during contentious proceedings or at any stage of the evidentiary process, as long as the court provides an opportunity.
Tactical and procedural particularities
Timing and admissibility
Counter-evidence can be presented at any stage of the proceedings until the close of the oral hearing. However, a tactical delay by presenting counter-evidence late may result in procedural disadvantages, particularly with respect to preclusion rules (§ 296 ZPO).
Significance for the evaluation of evidence
By means of counter-evidence, the court receives additional factual bases for the free evaluation of evidence. The court is not bound by rules of evidence (with exceptions, e.g., all formal rules such as those on public documents). Counter-evidence can decisively influence the court’s conviction by reinforcing existing doubts or by opening up entirely new avenues for clarifying the facts.
Special cases and practical examples
Prima facie evidence and counter-evidence
In cases of prima facie evidence, counter-evidence makes it possible to show that the typical course of events does not apply. It is sufficient here to plausibly present serious alternative causes or courses of events.
Statutory presumptions
In the case of statutory presumptions (e.g., § 1006 BGB – presumption of ownership), counter-evidence can undermine the effect of the presumption. If only counter-evidence is successful and proof to the contrary is not fully established, the presumption effect ceases, but the court is then free in its evaluation of the evidence.
Procedural notes
As a general rule, the court must draw attention to the introduction of counter-evidence (§ 139 ZPO) and grant the opposing party a right to be heard.
Literature and further information
- §§ 284-292 Code of Civil Procedure (ZPO)
- § 261 Code of Criminal Procedure (StPO)
- § 108 Administrative Court Rules (VwGO)
- Palandt, Bürgerliches Gesetzbuch, current edition, Introduction and § 1006
- Thomas/Putzo, Code of Civil Procedure, commentary on § 292
This article provides a comprehensive presentation of the legal concept of counter-evidence and classifies its significance within the context of German procedural law in a differentiated manner.
Frequently asked questions
When is counter-evidence admissible in civil proceedings?
Counter-evidence is generally admissible in civil proceedings whenever the opposing party’s evidence – often by means of prima facie evidence or a specific type of evidence – does not fully convince the court of a fact, or when the burdened party has succeeded in presenting a so-called prima facie case. Counter-evidence gives the burdened counterparty the opportunity to introduce new facts or evidence to undermine the initially presumed or proven facts. It should be noted that the admissibility of counter-evidence is mainly based on the procedural principles of immediacy and the free evaluation of evidence by the judge (§ 286 ZPO). However, procedural requirements, such as preclusion provisions, may serve as limits and may exclude late submissions or belated presentation of evidence.
What are the requirements for successful counter-evidence?
For successful counter-evidence, it is not necessary to conclusively prove the opposite of the alleged fact. It is sufficient to undermine the presumed causal sequence by law or prima facie evidence – that is, to substantiate serious doubts as to the evidential value of the main evidence. Especially in cases of prima facie evidence, it is enough to plausibly assert an alternative course of events that is seriously possible and, if necessary, support this assertion. The decisive factor is whether, considering the entire content of the proceedings and the result of the taking of evidence, there remains a preponderant probability of the main evidence being correct. If considerable doubts persist, the burden of proof has not been met and counter-evidence has succeeded.
In what situations does counter-evidence play a role in statutory presumptions?
Statutory presumptions, such as those found in § 1006 BGB (presumption of ownership in possession) or § 476 BGB (presumption of defectiveness within six months after transfer of risk), can be rebutted by admissible and successful counter-evidence. In such cases, the burden of proof shifts: by law, the legislator initially assumes a certain factual situation in favor of one party; however, the opposing party is expressly given the opportunity to rebut this legal presumption by weakening it or by proving the opposite. The practical application especially concerns disputes over purchase and possession, where the party that should not benefit from the statutory presumption must prove that the presumed facts do not actually exist.
What means of evidence are permitted for counter-evidence?
In principle, all evidence admissible in civil proceedings may be used to provide counter-evidence. This includes, among others, witness testimony, documentary evidence, inspection, expert opinions, and the examination of parties. The selection of the specific means of evidence depends on the circumstances of each case and the subject matter to be proven. The principle of free selection of evidence applies, provided that no specific statutory restrictions apply – for example, special documentary requirements under §§ 415 et seq. ZPO. A party may therefore use the available means of evidence to undermine or refute the factual basis assumed in the main evidence.
How does counter-evidence differ from so-called full proof?
While full proof aims to convince the court of the truth of a disputed fact with near certainty, counter-evidence is confined to undermining the persuasiveness of the main evidence. Especially in cases of prima facie evidence, it is not required to prove the opposite of the alleged occurrence with the same degree of conviction; rather, it is sufficient to raise serious doubts or put forward an alternative, plausibly explainable scenario and substantiate it. Only in the case of statutory presumptions favoring a party can the required standard vary depending on the wording of the law – in some cases, mere undermining of the presumption is sufficient, in others full counter-evidence (proof of the contrary) may be required.
What role does judicial evaluation of evidence play in counter-evidence?
The assessment of whether counter-evidence has succeeded is subject to the court’s free evaluation of evidence under § 286 ZPO. The court must examine whether the doubts introduced by the counter-evidence are sufficient to undermine the conviction established by the main evidence or the statutory presumption. The judge must evaluate all facts and means of evidence presented and may not rely solely on formalities. If significant doubts remain, the standard of proof has not been met, which generally benefits the party who has provided the counter-evidence. The decision to undermine the main evidence is thus made on the basis of an overall consideration of the case.
