The Law of Evidence: A Comparative Study Based Essentially on Austrian and New York Law

Abstract

Every legal system includes rules of evidence; that is, rules for the investigation of the particular facts of litigation. These facts are past events, and their accurate reconstruction therefore is impossible. This explains why the rules of evidence have varied in time and space, for human minds are bound to differ about the means by which to arrive as closely as possible at the true facts. Moreover, a Continental legal system such as that of Austria, when compared particularly with a legal system of character, also exhibits differences in the classification of the law concerning evidence. As in other Continental countries, so in Austria, evidence is treated within the framework of both the substantive and the procedural law, whereas in jurisdictions based on Anglo-American legal principles, rules concerning the proof of facts form a special branch of their legal systems. While comparative study in its specific character tends to concentrate upon the contrasts rather than the similarities which exist among the various methods for ascertaining facts in a civil procedure, it is advisable to note, at the outset, a few basic principles of civil procedure which the systems compared herein have in common. One such salient feature of civil proceedings is their adversary, or in French terms, their contradictoire character. A case commences upon a party's demand and not as an official inquiry; it is left to the initiative of the adverse party to contest the demand and to frame defenses. Consequently, this principle requires that no decision be rendered without each party having been given the opportunity of his day in court. Another important principle is that of party presentation (Verhandlungsmaxime). Since it is for the parties to initiate the proceedings, it is left to them to present the facts in support of their demands and defenses. It is this principle, as Professor Millar points out, to which AngloAmerican civil procedure naturally conforms. He adds that this prin-