What is the legal difference between a protocol and documentation?

From the series of newsletters of the DHBW (Baden-Wuerttemberg Cooperative State University) Heidenheim on the topic “Mediation Law in Practice”:

At this point, lawyer Dr. Johannes Fiala, https://www.fiala.de, lecturer for insurance law at the DHBW Heidenheim, will answer your questions,

Your questions. Questions can be asked by emailing ott@dhbw-heidenheim.de.

For insurance intermediaries there is a general obligation to document since 22.05.2007 (Implementation
of the EU Mediation Directive). This obligation was newly introduced for financial investment intermediaries (cf. § 34 f
GewO) at the beginning of 2013. Documentation is the orderly summary of the deliberations in the
Connection with the mediation, e.g. data of the interlocutors (customer, mediator),
Place, times (from, to) and reason for the consultation(s), client wishes, as well as recommendation of the intermediary.
An agent and broker should obtain a receipt from the client. If documentation is missing or
If there are gaps in this, a court will, in case of doubt, consider this as evidence against the intermediary, until
to the reversal of the burden of proof. The importance and obligation to prepare documentation has been
underlined by provisions on fines.

The record is a general piece of evidence in procedural law.
Insurance brokers, in particular, have always made absolutely every call (not just consultations)
recorded in it. This can also be done as a memo or memorial record. The content is intended to
Map the course of conversations, especially the customer’s reactions to instruction and advice,
from which it is evident that the customer had also understood them in terms of content. If the customer has an alleged
and claims damages, can only be submitted to the court with a protocol.
credibly present the reality of life at that time.

The lawyer calls this “substantiated factual argument”. The intermediary of insurances and financial investments should not be confused by the fact that there is software which allegedly helps to create “intermediary protocols”, but in reality (e.g. via text modules)
at most helps to prepare documentation. In practice, a simple template created in a word processor is sufficient for documentation and protocols.


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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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