This research examines the central question of the relationship between substantive truth and formal truth in civil litigation. More specifically, it seeks to determine whether the fundamental concept that procedural law serves the realization and enforcement of substantive law is genuinely reflected in judicial practice, or whether procedural law, in certain circumstances, comes to prevail over—or even dominate—substantive law.
One of the guiding principles underlying the Swiss Code of Civil Procedure was the maxim: “Those who are entitled to a right should also be able to obtain it.” Procedural law is conceived as serving substantive law and is intended to facilitate the realization and enforcement of substantive rights. This function of procedural law as an instrument for enforcing substantive law has also become firmly established in judicial practice.
However, in civil litigation, being right in the substantive sense does not necessarily mean prevailing in the procedural sense; substantive truth is in an inherent and evident tension with formal truth. The allocation of the burden of allegation and the burden of proof is, in principle, governed by substantive law. Pursuant to Article 55(1) of the Swiss Code of Civil Procedure, civil proceedings are generally governed by the principle of party presentation. Accordingly, the parties bear the responsibility for pleading the relevant facts. In addition, for every factual allegation, they must submit suitable evidence that is specifically linked to, and capable of proving, the allegation in question. Furthermore, factual allegations must be pleaded with a sufficient degree of specificity to enable the court to take them into account. From a temporal perspective, sufficiently substantiated factual allegations and the corresponding evidence must be introduced into the proceedings in due time in accordance with the principle of concentration (Eventualmaxime).
This research examines the central question of the relationship between substantive truth and formal truth. More specifically, it seeks to determine whether the fundamental idea that procedural law serves the enforcement of substantive law is genuinely reflected in judicial practice, or whether procedural law, in certain circumstances, comes to dominate substantive law instead.
