Relational technique
The relation technique (or just relation ) is a legal working method for the recording, order and assessment of a more complex civil law dispute. The method can be used both from a judicial point of view and from a lawyer's point of view. For the judge, it is a method of arriving at a correct decision in a civil process in the fastest possible and at the same time most cost-effective way for those involved , in particular to clarify whether the process is ripe for a decision or whether evidence has to be taken. For the lawyer, the aim of the relationship is a practical procedure for his clients in civil proceedings.
basis
For the civil judge, the plaintiff's application, i.e. his request, is the starting point of the examination. The parties must present the facts on which the legal dispute is based ( principle of presentation ); the judge determines the facts only on the basis of the facts that are brought into the process by the parties (different, for example, in the criminal process and in the administrative process , where it is determined ex officio ).
With the help of the relational method, the judge can sort out actual and legal problems of the matter in dispute and determine their significance for the claim of the plaintiff and derive his further course of action, especially with regard to a possible taking of evidence. Depending on whether a legal dispute is already ready for a decision, the relationship consists only of an expert opinion and a draft judgment, or, in the case of legal disputes that are not yet ready for a decision , a factual report , an expert opinion and a draft resolution.
In civil proceedings, the plaintiff and the defendant (the parties) argue before a civil court about the services owed (e.g. the defendant's obligation to pay), the existence or non-existence of a legal relationship between them (e.g. the continuation of a contract / ineffectiveness of a termination) or about its design (e.g. dissolution of a trading company). Accordingly, the plaintiff has to formulate his claim for benefits, declarations or structuring. The judge has to settle or decide the legal dispute as soon as possible on the basis of the party submission (principle of acceleration, § 300 ZPO ). Therefore, in terms of process economy, it is important to find out which measures are required at what point in time in order to advance the process. Superfluous measures (especially superfluous taking of evidence) can thus be avoided. In addition to the speed that can be achieved in this way, well-thought-out and well-founded decisions in relation to the relationship are gaining acceptance among the parties and gaining momentum across all instances.
The examination using the relation technique is divided into five sections ("stations"): process station, plaintiff station, defendant station, evidence station and tenor station. Depending on the status of the legal dispute, individual stations can be omitted. If z. If, for example, a complaint is inadmissible in the process station, there is no need to examine the plaintiff, defendant and evidence station.
Stations of the relation
Process station (admissibility)
In the process station, the judge or lawyer checks whether the action is admissible. In doing so, all process and factual judgment requirements are at least thought through.
If the action proves to be inadmissible or if it becomes inadmissible during the process, and if it remains so after a hint from the judge ( § 139 ZPO), the judge will reject it as inadmissible. The legal dispute is thus ended by a trial judgment in this instance .
If the action is and remains admissible, its further fate depends on its merits.
Plaintiff station (conclusiveness check)
In the plaintiff's station, the facts presented by the plaintiff are assumed to be true and they are examined to determine whether they are sufficient to fill the facts of a claim , the legal consequence of which covers the claim pursued by the plaintiff (the requested performance, determination or design).
In accordance with the general principles of case processing, all the bases of the claims that the plaintiff's request provide, even if the plaintiff does not mention them. If several bases for a claim come into consideration, the practitioner first examines the one whose legal consequence most closely or broadly covers the plaintiff's claim; If there are still several bases for a claim, it is advisable to first turn to the one whose elements he can assess the fastest.
If the plaintiff's submission of facts is insufficient, it is inconclusive . If the plaintiff's submission remains inadequate even after the judge has pointed out, the judge will reject the claim as unfounded (see Section 331 (2) ZPO). The legal dispute is then ended in this instance - through a factual judgment - without the defendant's submissions being relevant.
The factual submission of the plaintiff is also inconclusive if it meets all of the factual requirements of a counter-norm (legal obstructive or legally destructive objections, legal obstructive objections).
Defendant station (materiality check)
If the plaintiff's submission is conclusive, the behavior of the opposing party is considered in the defendant's station. The defendant remains passive or he recognizes the cause of action, the process ends regularly by a Versäumnis- or a consent decree in favor of the plaintiff.
The defendant seeks the dismissal, the judge examined in the Erheblichkeitsprüfung the defense arguments. A defendant basically has two options to defend himself on the factual level. On the one hand, the defendant can dispute the facts alleged by the plaintiff, which are important for the conclusiveness. On the other hand, the defendant can submit facts on counter-norms (legal obstructive and legally destructive objections , legal obstructive objection ).
Deny
To dispute it may be sufficient, depending on the litigation situation, to assert ignorance of the facts asserted by the opponent ( denying with ignorance ) or simply to deny them (simple denial); however, the opponent often has to contest in a qualified manner, i. H. provide your own alternative factual presentation. How concrete (detailed) the dispute must be depends on the plaintiff's submission and the possibilities for perceiving the facts in dispute (interplay between submission and counter-submission). If the defendant's dispute remains below the procedural level ( unsubstantiated presentation ), it is irrelevant. If the defendant leaves it at that even after being informed and if he does not submit any significant facts about counter-norms, the court will uphold the claim without taking any evidence. The legal dispute then ends with a factual judgment in favor of the plaintiff.
If the defendant effectively denies the facts giving rise to the claim, his dispute is substantial and the case processing must be continued in the evidence station.
Counter norms
In defense, the defendant can also present facts on counter-norms instead of or in addition to the denial. Counter-norms are norms that prevent a claim from arising (legal objection), subsequently allow it to perish (legal objection) or inhibit its enforceability (legal objection in the material sense). The facts about a counter-norm can only be taken into account by the court if they were brought up in the process = presented in speech . Then one speaks z. Sometimes, instead of counter-norms, there are also defenses in the procedural sense.
In the defendant's station, the defendant's presentation of facts on the counter-norms is assumed to be true. If the factual presentation fulfills all of the factual requirements of a counter-norm, the factual presentation of the defendant is conclusive and therefore significant.
Examples:
- The plaintiff demands payment of the purchase price. The defendant asserts that the purchase contract is void due to immorality and provides sufficient facts in this regard (objection preventing the claim, the purchase price claim did not arise due to the lack of an effective purchase contract).
- The plaintiff is suing for wages . The defendant claims that the plaintiff deferred his wages until his financial situation improved (objection inhibiting the claim, the claim arose but is currently not enforceable).
- The plaintiff seeks payment of brokerage commission . The defendant objects that he has already paid the commission (objection which destroys the claim, since the claim that has arisen has expired).
Intermediate result
If the defendant does not validly deny the plaintiff's conclusive submissions and if his factual submission of counter-norms is inconclusive, his defense is entirely irrelevant. This also applies in the event that the defendant neglects the secondary burden of proof. In all of these cases, the action is well founded without taking any evidence.
Replica station, duplicate station
The plaintiff can again deny the facts put forward conclusively by the defendant on a counter-norm, in the above example for deferral, for example, deny the agreement of a deferral. In addition, he can also present facts about counter-counter-norms (also called counter-arguments), in the example of the deferral, for example, explain that the defendant's financial circumstances have improved. Just as the counter-norm prevents, inhibits or destroys the claim, the counter-counter-norm prevents, inhibits or destroys the counter-norm (more precisely, the legal consequence of the counter-norm) and thus preserves the claimant's claim. Counter-counter-norms are therefore also referred to as claim-preserving norms . If the plaintiff either makes use of the defendant's submission of facts on the counter-norm or if he himself submits facts on a counter-counter-norm, his submission must be re-examined as a reply .
The defendant, in turn, can deny the facts conclusively submitted by the plaintiff from the counter-counter-norm or try to present facts for a norm that eliminates the legal consequence of the counter-counter-norm (norm that receives objections or objections). ( Duplicate ). The plaintiff can again challenge this argument as described above; then it is a triplik of the plaintiff.
Example:
- The complaining landlord, submitting a lease with the application, demands rent for one month in which the tenant could use the rented property, Section 535 (2) BGB .
- In the statement of defense, the defendant tenant objects to a rent reduction due to defects in the rented property, Section 536 (1) BGB.
- The plaintiff replied by claiming that the parties had contractually excluded a rent reduction.
- The defendant duplicates and claims that the contractual exclusion of price reductions is ineffective because the plaintiff fraudulently concealed the defect, Section 536d BGB.
- The plaintiff triplicated , denying having even known the defect.
The court processes every stage of mutual objection in the same way according to conclusiveness and relevance. In the above example, the plaintiff's submissions about the origin of the rent claim are conclusively admitted from Section 535 (2) BGB and, as far as the conclusion of a rental agreement is concerned. The defendant's submission of a defect is significant for a rent reduction from Section 536 (1) BGB and is also undisputed. The agreement of a contractual exclusion of price reductions is substantial and not disputed as a counter-defense of the plaintiff to § 536 paragraph 1 BGB. In dispute is the effectiveness of the contractual reduction in price exclusion. This depends on whether the landlord was aware of the defect before agreeing to the exclusion of a reduction in price, § 536d BGB. The defendant's assertion in this regard is conclusive for an ineffectiveness from § 536d BGB. The landlord's dispute is considerable in this regard. The alleged knowledge of the landlord represents an internal fact that can be inferred from external facts - such as the perceptibility of the defect in the presence of the landlord at a point in time before the exclusion of a reduction in price was agreed. Proof of these facts may be required, as shown below.
Presentations of facts on counter-norms, i.e. objections or defenses in the material sense, are common in practice, presentations of facts on norms that preserve claims are rarer, and presentations of facts on norms that preserve objections or objections are even rarer. In legal terms, counter-norms form exceptions to the basis of claims, counter-counter-norms exceptions to objections / defenses in the material sense.
If the submission of a party becomes so unclear as a result of the admission of the opponent that it no longer allows the conclusion that the asserted right was created or that the counter-norm was enforced, the party must supplement (substantiate) it. Otherwise it has become inconclusive or irrelevant due to a lack of substantiation.
Evidence station
If, even after the mutual submissions, the plaintiff's submissions are still conclusive and the defendant's disputes or the factual presentation are still significant, the court has at least two incompatible statements of fact according to which the legal dispute would have to be resolved differently. The judge either obtains a sound conviction of the correctness of a statement of facts by taking evidence or he decides according to rules on the burden of proof .
The evidence station is subdivided:
- Question of evidence
- Evidence
- Evidence and
- Evidence assessment.
Before the judge orders a taking of evidence, he clarifies the question of evidence. The question of evidence is determined taking into account the burden of proof. The burden of proof is generally on the party who derives favorable legal consequences for itself from an asserted norm. The basis for claims and norms that preserve claims are favorable for the plaintiff, counter-norms and norms that hold objections or objections are favorable for the defendant. If the plaintiff claims z. B. If a flat rate of € 50,000 has been agreed and the defendant denies this by claiming that a flat rate of € 30,000 has been agreed, the relevant (flat rate) question is which flat rate was agreed. However, the question of evidence is not: “Was a flat rate of € 50,000 or a flat rate of € 30,000 agreed?” Because the plaintiff, who is suing for his wages, is burdened with evidence, all that matters is his assertion. The question of evidence would therefore be: “Have the parties agreed on a flat rate of € 50,000?” The question of evidence corresponds to the issue of evidence in an evidence decision.
After the judge has clarified the question of evidence , he examines whether there is any need to raise evidence about the question of evidence from the point of view of presumptions or the possibility of an estimate according to § 287 ZPO.
If the need for evidence is not denied, it will be clarified whether the party obliged to provide evidence has submitted an admissible request for evidence (e.g., according to Section 373 ZPO, a witness request for evidence ). If this is not the case, i.e. in the absence of an application for evidence, the requirements for a basis for a claim or a counter-norm cannot be determined. The party burdened with evidence cannot claim the legal consequences that are favorable to them from this standard; they then remained “due for evidence”.
If the party required to provide evidence has submitted evidence of its factual assertion (= "evidence subject" = " evidence question" ), the judge clarifies whether the other party has submitted a request for counter-evidence. A counter-evidence request is aimed at shaking the persuasiveness of the evidence of the party charged with evidence; it is not intended to prove otherwise. The request for counter-evidence is therefore to be distinguished from "proof of the contrary", which is necessary or possible in the case of legal presumptions according to § 292 ZPO.
After taking the evidence, the court evaluates the result of the evidence. In the example case, the following would be formulated at the beginning of the sub-item “Evidence assessment”: “Has the result of the taking of evidence without reasonable doubt ( § 286 ZPO) proven that the parties have agreed a flat rate of € 50,000?” then z. For example, the testimony of witnesses related to precisely this issue is “appreciated”, that is, examined for their credibility. Confirmed z. B. the witness named by the plaintiff an agreement in the amount of 50,000 € (= "productive" testimony ) has to be checked whether doubts about the correctness of the testimony are justified by the countervailing witness. If the court is ultimately convinced of the correctness of the testimony without reasonable doubt - taking into account all aspects that could give rise to doubts - the evidence is provided.
The points "question of evidence, need for evidence and evidence" are often not listed in the model relations. These model relations are based on cases in which evidence has already been taken and the legal trainee nevertheless still has to write a relation. Even in these situations, in which a judge has already ordered evidence to be taken on a specific question, the trainee lawyer must nevertheless clarify as a preliminary question of the assessment of evidence, about which specific question evidence was to be taken, whether there was any need for it at all and whether there might be more Any evidence previously "ignored" by the court has been made. It is therefore the task of the Referandar to practically check the court to see whether the ordered and carried out taking of evidence is correct, necessary and complete. Even the judge who first ordered the gathering of evidence and then carried it out must proceed. After the evidence has been gathered and before the evidence is assessed, each judge must check himself again whether he has raised evidence on the correct question of evidence, whether z. B. Assumptions apply or whether other witnesses were named before he decides in the judgment. For this reason, a statement must always be made in relation to the points of question of evidence (including burden of proof), need for evidence and evidence taking.
Tenor station and judgment
In the Tenorierungsstation the law clerk formulates the judgment Tenor , if it considers the matter as a result of previous stations for judgment ripe. Otherwise, he will work out a resolution that is ready for judgment, such as an evidence, reference or referral decision.
In the judgment of the first instance , the judge - or the legal trainee, if he has to draft such a judgment - describes the factual and dispute it is based on ( facts ) and, in the reasons for the decision , why the action is inadmissible or what result it has Has examined the basis of claims and objections. In contrast to the expert opinion, the judge uses the judgment style in the judgment : in the judgment tenor and in the reasons for the decision, he categorically communicates his results, the existence or non-existence of legal consequences, and explains them in more detail in the reasons for the decision. Its justification is based on the examination standards, claims and defense standards, under which the factual submissions of the parties are to be subsumed . For this purpose, it forms one or individual chains of reasons depending on the factual feature or set of features to be checked. He puts his test result and, if necessary, a major sentence in front of them or, in addition to his result, at least names the standard to be tested or the principle to be applied; He ends the respective chain of reasons with the determination of the existence or the lack of determinability of the necessary facts. Here too the judgment style applies, i. H. within each chain, the following sentences establish or develop the preceding ones.
The general scheme for the individual justification is four-part and reads:
(1) the legal consequence of the standard to be examined is given or not;
(2) the factual element to be examined is given or not;
(3) Conceptual development of the element of the offense into individual subsumable facts ;
(4) Individual facts are undisputed, proven or not ascertainable .
- Example: The exclusion of the objection to a reduction in price in § ... of the rental contract does not fail, contrary to the defendant's view, due to ineffectiveness according to § 536d BGB. (1) Ineffectiveness from § 536d BGB (-) The fraudulent intent of the plaintiff required for ineffectiveness according to this provision is missing. (2) Malice (-) Malice exists if the landlord knew the mistake or at least believed it to be possible. (3) Definitional development of the element of malice in internal facts Knowledge or awareness of the possibility . None of these conditions can be determined here. (4) Knowledge or awareness of the possibility (-) The witness named by the defendant ... did not confirm the claim that the plaintiff had ...
The affirmative chains of reasons have priority over the negative ones. In its entirety, the judgment deals with the granting parts first, together with the unsuccessful attacks by the opponent; This is followed by the indecisive plaintiff's submissions, before the decisive objections of the opponent and finally the unsuccessful counter objections that have not yet been discussed. In the case of multiple complaints or counterclaims, the judge divides the judgment into appropriate sections and, within them, into individual chains of reasons. In the secondary decisions, he justifies his apportionment of costs, which he only makes according to the reason, and his decision on provisional enforceability . This marks the transition from the judgment procedure to the enforcement procedure . The judge signs his judgment. It usually becomes effective when the judgment is pronounced .
Relational report
As part of the examination in the second state examination in law , trainee lawyers in some federal states may also be required to prepare a relation. The file to be assessed must then be checked according to the stations outlined above.
literature
- Monika Anders, Burkhard Gehle: The assessor exam in civil law. 13th, revised edition. Vahlen, Munich 2017, ISBN 978-3-8006-5397-3 .
- Dieter Knöringer: The assessor exam in civil proceedings. 17th, revised. and supplemented edition. Beck, Munich 2018, ISBN 978-3-406-72995-9 .
- Carl-Theodor Olivet: Legal working technique in the civil ward. 4th, revised edition. CF Müller, Heidelberg et al. 2010, ISBN 978-3-8114-7058-3 .
