If there is a conflict between a provision of
between a provision of substantive law and another provision
procedural law, which shall prevail over the other? Give reasons.
Answers
Explanation:
It can be very difficult for a claimant to prove its case on the basis of the information and documents the claimant has at hands. Of course, also civil law jurisdictions are aware of this problem. But how do they address it, if not by way of document production? There are various possibilities; some originate in the substantive law, some in the procedural law. The substantive law regularly contains provisions allocating the burden of proof or shifting it to the opposing party under certain conditions. Section 363 of the German Code of Civil Procedure may serve as an example.[1] Also, the law can operate with assumptions of fact. In addition to statutory law, the allocation of the burden of proof may be refined by case law. German courts, for example, have established evidentiary principles to take account of the fact that in specific situations it is very difficult for a party to fully prove its case. The classical example is medical professional liability: If a patient has been able to establish a gross error in treatment, it is assumed that this error has caused the bodily harm.
Answer:
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