Civil legal expert examination in Germany: Situation and development

The Eurexpertise project made it possible to draw up an exhaustive inventory and objective analysis of the rules and practices used in the field of civil expertise throughout the EU, and to propose to the European authorities consensual reform suggestions to decrease the amount of divergences.

The country profiles resulting from this work are presented in the final report Eurexpertise, published in 2012 and are progressively updated under the supervision of the Institute and published in partnership with the journal Experts.

The description for Germany has been updated and published in Experts Review n ° 125 of April 2016, thanks to the voluntary work of contributors from the European judicial and expert world.

With the kind permission of Marie-Hélène Bernard, editor of the Revue Experts.


The expert system in Germany

Helmut Stotzlerby Helmut Stötzler Dipl.-Ing
www.stoetzler.de

The judicial expert depends on a framework, defined by the Criminal Code, the Civil Code (§§ 402 ff ZPO[1] and 72 ff StPO[2]) and the regulations of judicial expert organisations.

Other laws (36 GewO[3] and § 91 HwO[4]) specify that it is the regional governments of the Länder that define the organisations, e.g. chambers of commerce and industry and chambers of trade, which appoint the judicial experts.

According to the needs, the chambers define the fields of competence of the experts. The Chamber of Commerce and Industry groups together about 200 specialities such as buildings, cars, but also for example stamps or carpets.

The chambers are advised by committees responsible for selecting candidates through various examinations. Applicants must follow a rigorous procedure with these commissions to be admitted as a judicial expert (“öffentlich bestellter und vereidigter Sachverständiger”[5]). An expert must take the oath, swearing to carry out his duties independently and impartially.

The accreditation is limited to 5 years. This approval can be extended on request, after presentation of expert’s reports of past years.

Chambers of commerce maintain lists of 8,500 judicial experts, which are available, so that courts can select accredited experts (www.svv-ihk.de).

According to the code of civil procedure, courts must choose an expert approved by a chamber, with a few exceptions. Generally, the parties agree on the identity of an expert and the judge instructs the expert to make his expertise.

In Germany, the expert is paid by the courts. Before the start of its mission, the complainants are obliged to pay an advance on the costs of the expertise.

The mission of the judicial expert is defined by the judge, it cannot be modified by the expert. The court can give him instructions so that he can accomplish his mission. The expert answers only the questions asked by the judge.

In most cases, expert opinions are presented in a written report. Sometimes, for economic reasons, or in simple cases, oral expertise is required.

The expertise is a technical explanation that allows the judge to draw his conclusions.

The judge is not bound to the expertise.

The most important association for legal experts in Germany is the BVS e.V. with about 4,000 members (Bundesverband öffentlich bestellter und vereidigter sowie qualifizierter Sachverständiger e.V. ; www.bvs-ev.de).

The BVS e.V. defends the interests of judicial experts, organises numerous training courses and supports future experts in their training.

[1] ZPO: Zivilprozessordnung Civil Code
[2] StPO : Strafprozessordnung Criminal Code
[3] GewO : Gewerbeordnung Code of commerce and industry
[4] HwO : Handwerk Ordnung Crafts Code
[5] Certified and sworn expert


Useful links:

  • Institutional website

http://www.bundesgerichtshof.de  : Federal Court of Justice (Karlsruhe)

http://www.olg-koeln.nrw.de : Court of appeal (Cologne)

  • Experts Companies

BVS – Federal Association of Publicly Appointed, Sworn and Qualified Experts, Germany

http://www.bvs-ev.de (English, German)