Active legitimation
The active legitimation (also called factual legitimation or authority ) is a term from procedural law. It is to be distinguished from the litigation authority .
meaning
The active legitimation is a prerequisite for the well-foundedness of a lawsuit. An action is well founded if the plaintiff of the right asserted is respect right of action, the defendant passively legitimized and the alleged right at the time the court decision is made (is thus created and is continuing) and is enforceable (depending on the head of claim). If the claimant lacks active legitimation, the claim must be dismissed as unfounded.
Terminology
German law makes a distinction between the admissibility and the merits of the action.
The authority to conduct litigation is a prerequisite for the admissibility of the action. The power to conduct litigation gives the right to conduct a process as the correct party, i.e. to sue or be sued as the correct party under a law. It says nothing about the substantive legal relationship. The right to conduct litigation is generally available to the holder of the alleged right. Who this is results from the statutory or legal provisions from which the right to be sued is derived. Whether the plaintiff actually owns the rights is a question of substantive law and a question of merits.
The active legitimation is a prerequisite for the substantiation of the complaint. The person who, according to the substantive legal situation, is the owner of the right to be sued is authorized to act. The person who is materially and legally obliged by the law enforced is legitimized. The active legitimation and the passive legitimation are mirror images.
In contrast, the litigation authority is an admissibility requirement for the action. The power to conduct litigation gives the right to conduct a process as the correct party, i.e. to sue or be sued as the correct party under a law.
As a rule, active legitimation and litigation authority coincide in one person.
special cases
Litigation
But they can also fall apart in litigation .
Example: If a creditor sues his debtor and assigns his claim during the process, the new creditor is actively legitimized, but the previous creditor remains authorized to conduct proceedings ( Section 265 ZPO ).
In such a case the defendant can complain about the lack of active legitimation of the plaintiff. The plaintiff can then either declare the complaint to be settled or rearrange his complaint so that the defendant is sentenced to pay the new creditor. Such a change of action is always permissible according to § 264 No. 2 ZPO even without the consent of the defendant. However, the new creditor can also grant the claimant a direct debit authorization in accordance with Section 185 (1) BGB (analogous), with the result that he retains his active legitimation and can collect the third-party claim in his own name. This is particularly useful for silent assignments, but the new creditor bears the risk of onward transfer.
Bankruptcy proceedings
By opening insolvency proceedings, the debtor loses the power to administer and dispose of his assets. This is transferred to the insolvency administrator. The debtor's authority to conduct litigation also expires, so that he can no longer be sued as the correct party with regard to a claim from his assets. Only the insolvency administrator who takes his place is authorized to pass. It is controversial whether the insolvency administrator enters the process as a party by virtue of office (according to the prevailing opinion).
Administrative law
The pair of terms is more common in German administrative law , where it also serves to designate the material entitlement or obligation arising from a legal relationship .
Austria and Switzerland
The same principles of civil procedure apply in Austria and Switzerland as in Germany.
See also
literature
- Walter Stiebeler : The relationship between litigation and factual legitimation. Hamburg 1949.
Web links
- Christoph Eggert: Current questions of active legitimation at the property damage IWW Institute, October 1, 2005
- For the active legitimation of a vehicle that has been assigned by way of security: the owner has no claims if they are due to the owner autorechtaktuell.de, December 21, 2011
- Ansgar Ohly : Active / Passive Legitimation in Intellectual Property Law 2015
- Active legitimation of the rental process and foreclosure, website of the DMB , accessed on August 19, 2017
Individual evidence
- ↑ a b c d Thomas / Putzo: Commentary on the Code of Civil Procedure . 38th edition. 2017, p. 502 before Section 253 marginal no. 19 .
- ^ Carl Creifelds: Legal dictionary . 21st edition 2014. ISBN 978-3-406-63871-8
- ↑ a b c d e f L 3 AS 1009/14 LSG FSS judgment of April 9, 2015. Retrieved November 9, 2019 .
- ↑ a b c d Thomas / Putzo: Commentary on the Code of Civil Procedure . 38th edition. 2017, p. 134 § 51 Rn. 22 .
- ^ BGH, decision of December 11, 2008 - IX ZB 232/08. Retrieved November 9, 2019 .
- ↑ No active legitimation of a community of owners due to lack of transfer of claims according to § 16 BTVG OGH , decision of May 25, 2016 - 2 Ob 187 / 15m
- ↑ KGE ZS of 6 November 2007 regarding AW Insurance Co., Ltd and B. AG (100 06 1093 / STS) Civil Litigation / locus, site of the canton of Basel-Country , accessed on August 19, 2017
