NEED OF PROVING: NEW INSTITUTION IN THE CIVIL PROCEDURE FROM 1 JANUARY 2018

According to the current Hungarian Code of Civil Procedure, if the party having the burden of proof cannot prove its statement, it loses the lawsuit based on the judgement of the court. The new Code of Civil Procedure entering into force on 1 January 2018 will implement a significant change in this respect, since the statement of a party being in the need of proving will be considered as true if the court has no doubt in this regard. The new Code of Civil Procedure targets to decrease the number of judgements based on that the statements that had not been proven. In these special cases, the new act acknowledges that there are situations where the given party is unable to prove its statements for a reason not attributable to him, therefore, it would not be fair to “punish” such party who cannot prove its statement.

Typically this is the case when only the other party disposes with the piece of evidence that is essential to prove the statement of the party. Another case when it is impossible to prove the statements by one of the parties, however, it can be expected from the other party to prove the contrary. This is usual in procedures e.g. on medical malpractice, when the hospital has to prove that it acted in an adequate manner, while the injured party does not have the professional knowledge to prove the medical malpractice. Even when the other party makes intentionally impossible that the party could prove a statement successfully, the statement shall be considered as true.

An additional novelty of the new Civil Procedural Act is that the court may also take into consideration an unlawful mean of proof if a substantial statement cannot be proven otherwise. For instance, if an employee can only prove the circumstances of its dismissal by an audio recording made unlawfully, it may be accepted by the court. It will be then the task of the Hungarian judicial practice to determine the cases when an unlawful mean of proof shall not be taken into consideration. The Hungarian courts must have particular regard to the European judicial practice and to the protection of fundamental rights.