Concept and legal classification of the sworn examination of a party
Die sworn examination of a party is a special form of taking evidence provided for in civil procedure law, in which a party involved in litigation is questioned by the court on a specific subject of proof and sworn in with regard to their testimony. This measure serves the judicial clarification of facts in situations where other means of evidence are lacking or inadequate. It is regulated in German civil procedure law especially in Sections 445 to 455 of the Code of Civil Procedure (ZPO) and constitutes a subsidiary means of evidence.
Historical development
The sworn examination of the party traces its origin to common procedural law and was already recognized in the 19th century as a legitimate means of establishing the truth. With the introduction of the ZPO in 1877, parties were specifically regulated as possible witnesses. Over time, the institution of party examination underwent reforms, particularly with respect to its subsidiary role compared to other, more objective means of evidence, such as documents, witnesses, or experts.
Purpose and significance in civil procedure
The main function of the sworn examination of a party lies in supplementing the judicial clarification of facts. In many civil proceedings, a problem arises because facts cannot be fully documented by objective evidence. Especially in so-called “momentary transactions” or events in the presence of others, means of evidence such as documents or witnesses may be missing. In such cases, the sworn examination of the party allows for the determination of the truth in the proceedings.
Statutory regulation
Party as means of evidence
According to Sections 445 et seq. ZPO, a party can be examined as part of the taking of evidence. The examination may be ordered at the request of a party or ex officio by the court if other means of evidence are either lacking or not effective. A distinction must be made between non-sworn examination (§ 447 ZPO) and expressly sworn examination (§§ 452, 453 ZPO).
Requirements for sworn examination
The sworn examination of a party is only possible if a prior party examination according to Section 448 ZPO has taken place without conclusive success or if other means of evidence are unavailable. It is always required that there is at least a certain degree of evidence (‘initial proof’) for the fact to be proven.
Procedure of examination and taking the oath
After the court has examined the party according to the provisions of the ZPO, it may proceed to swear in the party based on their testimony. The party to be sworn in then takes an oath on the truthfulness of their statement. Swearing in carries significant criminal sanctions (see Section 154 StGB – perjury) to ensure, as much as possible, the party’s duty to tell the truth.
Distinction from informative hearing and testimonial evidence
The sworn examination of a party significantly differs from the informative hearing according to Section 141 ZPO, which does not serve the taking of evidence but rather the clarification of the facts. It is also strictly differentiated from testimonial evidence: while a witness, as an outside person, reports on someone else’s facts, the party, as a direct participant, testifies about facts significant to themselves.
Application and judicial discretion
The examination and swearing in of a party are generally subject to application. A corresponding application for evidence is a prerequisite for carrying it out. However, the court has discretion regarding whether and to what extent it wishes to examine and swear in a party. According to prevailing opinion, the use of party examination is the last resort in taking evidence (’emergency evidence’).
Procedural status and significance in the law of evidence
In German civil procedure law, the sworn examination of a party plays a subordinate role. According to the principles of procedural economy and objectivity, it is subsidiary to other forms of evidence. It is typically considered when other means of evidence have been exhausted or are unavailable and when a residual doubt exists which can be resolved by party testimony under oath.
Legal consequences and remedies
The party giving testimony under oath is subject, if they intentionally make a false statement, to the penalty of perjury according to Section 154 StGB. Courts take the outcome of the sworn examination into account in the final evaluation of evidence according to Section 286 ZPO. The decision to conduct the sworn examination itself is generally not subject to separate appeal but may be reviewed in the context of an appeal against the final judgment.
Special considerations
Examination of both parties
The court may, if it serves the clarification of the facts, also examine and swear in both parties on the same subject of proof. This is particularly useful where there are conflicting party statements and no further means of evidence are available.
Grounds for exclusion
The examination of a party is excluded if the party is incapable of engaging in legal proceedings or is legally prevented from taking the oath for other reasons. In the case of legal entities or partnerships, the statutory representatives or authorized organs are heard.
Significance in family and employment law
In employment and family law disputes, party examination has particular importance, as personal knowledge and relationships often play a central role and are difficult or impossible to prove through objective means of evidence.
Relevance and criticism in practice and academia
The possibility of examining a party under oath is viewed critically in legal literature and practice because the party, as a participant, naturally has an interest in the outcome of the proceedings. Nevertheless, it is recognized that this form of evidence can fulfill its purpose as a method of ultimate resort in the interest of full clarification of the facts, provided it is used with appropriate restraint and with due regard for procedural fairness.
Summary
Die sworn examination of a party is a subsidiary but significant means of evidence in German civil procedure law. It serves the determination of the truth in cases where other means of evidence are lacking or insufficient and is strictly governed by the Code of Civil Procedure. The particular significance of the oath lies in its criminally sanctioned duty to tell the truth, which serves the court’s clarification of facts. The examination and swearing in of a party are nevertheless subject to strict procedural requirements and should always be conducted with restraint to ensure the objectivity and fairness of proceedings.
Frequently asked questions
At what stage of civil proceedings does a sworn examination of a party come into consideration?
A sworn examination of a party in civil proceedings generally only becomes an option when the judicial procedure for taking evidence has already been exhausted, but the formation of judicial conviction remains incomplete due to a lack of evidence (§ 445 ZPO). The court may only allow the party to give sworn testimony if the results of previous evidence are incomplete and the facts cannot be established through other means of evidence (such as witnesses, documents, expert opinions). Therefore, the judicial formation of conviction can only rely on party examination if other means of evidence—which are in principle available to the parties—are insufficient or unavailable, but the court still has substantial residual doubts about the truth of the allegations that might be dispelled by sworn examination.
Who can apply for the sworn examination of a party and how must this application be submitted?
An application for sworn examination of the party can be filed by any party to the proceedings, or the court may order such examination on its own motion (§§ 447, 448 ZPO). The application must be explicit and must clearly relate to a specific disputed fact that still requires proof. It is not sufficient to apply in general for party examination; the application must specifically state which factual allegations the party is to be examined under oath about. The application can be made orally at the hearing or in writing in advance.
What requirements must be met for the admission of a sworn examination?
The primary requirements are that a situation of evidentiary need exists, meaning that no other sufficient means of evidence is available for a significant and disputed fact, and that the fact is material to the outcome of the case. The court must also have the impression that, after exhausting regular means of evidence, a decision as to the truth of the material fact is not possible without the oath. Furthermore, no manifest falsehood should exist in the party’s allegations—in such cases, the examination is not permitted, as this would presuppose a lack of credibility of the party. Thus, the admission ultimately lies within the discretion of the court.
In what form does the sworn examination take place and what obligations does the party bear?
The sworn examination is conducted before the competent judge in a public oral hearing. The party to be examined is considered a witness to their own case and must be informed of the criminality of making a false or incomplete statement under oath. The examination generally follows the same course as the examination of a witness: first, the applicant’s statements are recorded, then comes the questioning by the court, followed by questioning from the opposing side. The party is obligated to testify truthfully and completely; intentional false statements constitute the crime of perjury under Section 154 StGB. The party has a right to refuse testimony on matters where giving evidence would expose themselves or close relatives to criminal prosecution.
What consequences can an oath-bound statement have?
The consequences of a sworn statement are significant: the court may, on the basis of the sworn testimony, form a conviction regarding the disputed facts and base its decision upon them. If it is established that the party intentionally gave false testimony, this constitutes criminal perjury, which can be punished by significant imprisonment. Additionally, the party may be held civilly liable for damages that the other party may suffer due to the intentionally false testimony, especially if a judgment based on the statement must later be overturned.
Can a party refuse the sworn examination or waive the oath?
As a rule, the obligation to take an oath exists if ordered by the court. However, a party can refuse to take the oath in individual cases if statutory rights to refuse testimony or information exist, for instance to avoid self-incrimination or to protect relatives (§§ 383 et seq. ZPO). In addition, the party may voluntarily waive their right to sworn examination; in individual cases, this can have procedural consequences, particularly in the context of the evaluation of evidence to the detriment of the party.
How is the result of the sworn examination legally assessed?
The court is bound by the principle of free evaluation of evidence (§ 286 ZPO). This means that the sworn examination of a party is not a mandatory means of evidence, but rather the court decides at its own discretion what weight to assign the sworn statement. In practice, courts are cautious in assessing the credibility and reliability of statements; they particularly consider the party’s personal standing, their interest in the outcome of proceedings, as well as other indications in their deliberations. Accordingly, a judgment can go against a sworn statement of a party if other circumstances indicate otherwise.
