The concept of ease of proof (Beweiserleichterung) is not a fully demarcated concept. What is generally understood by the concept of ease of proof is a low level of proof activity by the party who is obliged to bear the burden of proof. Ease of proof aims to overcome the difficulties of proof. This is because the fact that one of the parties to the case loses the case solely due to the inability to prove the facts claimed by it disrupts the purpose of fair judgement, which is one of the objectives of procedural law. In some cases, it is very difficult or difficult to prove a conditional fact of substantive law, and the party who is obliged to prove that conditional fact faces the risk of losing the case because he cannot prove that conditional fact. In order to overcome certain impossibilities or difficulties of proof, especially in the field of medical law, in the presence of defect in the field of compensation law and in the field of labour law, facilities of proof have been developed by judicial decisions.
Difficulties of proof or impossibility of proof may be overcome by lowering the measure of proof or by placing the burden of proof on the other party, or in line with the theoretical distinction in the doctrine, by placing the burden of substitution of evidence. We will explain that the ease of proof is referred to under various names in judicial decisions and doctrine, but even under all these names, in fact, the ease of proof is realised either by lowering the measure of proof or by shifting the burden of proof. Ease of proof is referred to in the doctrine and judicial decisions with concepts such as first appearance proof, approximate proof, proof by implication, rules of experience, de facto presumptions, prevention of evidence. In fact, what provides the ease of proof in these concepts is the reduction of the measure of proof or the shifting of the burden of proof. In each concept, the issue that provides the ease of proof may be different. For example, while the element that provides the ease of proof in the proof of first appearance is the reduction of the measure of proof, the element that provides the ease of proof in the prevention of evidence is the shifting of the burden of proof.
proof presumption prevention of evidence burden of proof measure of proof
If one of the parties to the case is unsuccessful solely due to an inability to prove the facts alleged, this has the effect of disrupting one of the fundamental aims of procedural law, namely the rendering of a fair judgement. In certain instances, it is exceedingly challenging, if not impossible, to substantiate a conditional fact pertaining to substantive law. Consequently, the party tasked with proving the conditional fact is at risk of losing the case due to an inability to prove the conditional fact. In particular, within the realms of medical law and compensation law, pertaining to the existence of a defect, as well as in the domain of labour law, in order to surmount the challenges and limitations associated with proof, facilities for proof have been established through judicial decisions.
There are two methods by which the ease of proof or the difficulty of proof may be addressed. The initial approach is to reduce the level of proof required. By reducing the level of proof required, the challenges associated with proof are attempted to be surmounted. The judge may be satisfied with a lower degree of conviction and accept the veracity of the alleged fact. The most radical method of overcoming the burden of proof is to alter the burden of proof itself, specifically the subjective burden of proof. Nevertheless, modifying the burden of proof is regarded as a more radical solution and is employed as a last resort.
It is important to note that the concept of ease of proof is recognised under various names in judicial decisions and doctrine. However, despite the multiplicity of names, the ease of proof is ultimately realised either by lowering the measure of proof or by shifting the burden of proof.
There are many studies and theories on the measure of proof in German Law. These studies are orientated towards what the measure of proof should be through some theories. It is a more correct approach to try to determine the subjective theory based on the persuasion of the judge by means of some objective data. In this sense, it is generally accepted that the high probability based on probability (hohe Wahrscheinlichkeit) will be taken as the rule of proof. However, in the doctrine, it is stated that this measure is too high, and ideas have been put forward that the rule of proof should be reduced. As a matter of fact, some statutory regulations (such as Article 5 of the Labour Law) reduce the measure of proof. However, even if there is no legal regulation, it is a requirement of the right to a fair trial to provide ease of proof by lowering the measure of proof in the fields of medical law, compensation law and labour law, where the difficulty of proof is experienced by judicial decisions.
Furthermore, our study examined the concepts of burden of proof and burden of substitution of evidence, with the objective of elucidating the distinction between these two concepts. In consequence, it was established that the burden of proof is defined by the substantive law, whereas the burden of substitution of evidence may be subject to alteration. In this regard, we have identified the shifting of the burden of substitution of evidence as a further means of facilitating proof.
It has been established that the element which provides the ease of proof on the basis of all these concepts of ease of proof is the reduction of the measure of proof or the shifting of the burden of proof. In light of these considerations, we have proposed that the concept of “first appearance proof” can be understood as a reduction in the measure of proof, with the rules of evidence and experience serving as the foundation for this reduction. The aim of this paper is to demonstrate that the terms used in the doctrine are merely expressions of the reduction of the measure of proof, albeit expressed in different terms. These concepts are merely special names used to elucidate pertinent circumstances. This approach allows us to better define the framework of the reduction of the relevant measure of proof, as well as to elucidate its conditions and the contexts in which it is employed. Furthermore, we have sought to highlight the distinctions between the concept of approximate proof and the other forms of proof. It has been demonstrated that the ease of proof in the prevention of evidence is facilitated by the shifting of the burden of proof.
