Legal process
Under attorney process is understood in civil proceedings a judicial process in which the parties by an in Germany lawyer represented must leave, d. In other words, without this representation they cannot conduct the process as either the plaintiff or the defendant and are treated at the oral hearing as if they had not appeared.
With regard to legal proceedings, one speaks of legal compulsory or legal requirement . "Self-representation" in German civil proceedings is permitted by Section 78 (4) ZPO for lawyers in accordance with the requirements set out in Paragraphs 1 and 2.
In criminal proceedings in Germany, compulsory defense is sometimes perceived as a covert lawyer requirement, because the defendant can be assigned a public defender against his will. But whereas in civil proceedings, the procedural acts, ie in particular the lodging of applications, covered by a lawyer, the accused of audience remains even after appointment of a public defender received.
function
The compulsory lawyer is intended on the one hand to protect laypeople who are unfamiliar with the law and the so-called equality of arms, especially vis-à-vis parties represented by a lawyer, but on the other hand also to ensure that the administration of justice functions properly .
According to the Federal Constitutional Court of a lawyer is not contrary to the legal protection guaranteed by Art. 19 para. 4 of the Basic Law , nor against the general freedom of action of Art. 2 para. 1 GG, nor against the right to be heard according to 103 Art. 1 para. GG, because it is objectively justified with regard to its protective purpose as well as for procedural reasons.
The compulsory lawyer for certain proceedings or in certain courts has also been viewed by the European Court of Human Rights (ECHR) as harmless, in particular as compatible with Art. 6 ECHR . This applies not only to the appeal and revision rights , but also to the sometimes existing compulsory representation in the first instance. The hindering of access to the court by compulsory representation is necessary in the interest of the orderly administration of justice, pursues a legitimate goal and is proportionate. It is also mitigated by the fact that a citizen is entitled to legal aid in accordance with § 114 ZPO if he is in need and, in the event that he cannot find a representative ready to represent him, an emergency lawyer according to § 78b ZPO is to be assigned to him.
Examples
Representation before local courts
Attorney processes before the District Court the marriage things including ancillary matters , method of any claims from the conjugal property law and the corresponding method for partnerships , proceedings before the district court and the Oberlandesgericht in civil cases (with the exception of certain family court method) and before the Federal Court in civil matters. In legal proceedings, the court of a party must, upon request, assign an emergency lawyer to exercise their rights if they cannot find a lawyer who is ready to represent them and the prosecution or legal defense does not appear willful or hopeless ( Section 78b ZPO).
The lawyer process is regulated in § 78 to § 78c ZPO.
Before the local courts (except in marriage and family disputes), labor and finance courts , there is no legal requirement. In representation before these courts, chamber legal advisers are on an equal footing with lawyers in accordance with Section 3 (1) RDGEG.
The parties cannot represent themselves before the Federal Fiscal Court. Rather, they must be represented by a lawyer, tax advisor , auditor or sworn accountant (see Section 62 FGO ).
A lawyer is only required before the Federal Constitutional Court for oral hearings ( Section 22 (1) sentence 1 BVerfGG ).
Singular admission before the BGH in civil matters
A lawyer admitted to the court there is only required for representation at the Federal Court of Justice in civil matters. This is the only remaining case of a singular admission before German courts. This means that in civil matters only a lawyer who is licensed by the BGH is able to postulate in order to be able to submit effective legal proceedings there. The lawyers admitted there may not appear before other courts, with the exception of the higher federal courts and the Federal Constitutional Court. Any lawyer licensed in Germany can appear before all other courts and in all other proceedings.
Duty of attorney in proceedings under the Law on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction
General regulation
The law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG) provides in principle the right to conduct the procedure yourself, including at the regional court or higher regional court, Section 10 (1) FamFG. Just before the Federal Court is a Representation by a professional before that court attorney is required ( § 10 para. 4, sentence 1 FamFG), not as long as only the exclusion or objection of judicial persons or the granting of legal aid object is.
Exemption for marriage and family disputes
This principle is deviated from in § 114 FamFG for matrimonial matters and subsequent matters in independent family disputes ( §§ 121 to 150 FamFG) and a compulsory representation is stipulated for these proceedings in § 114 Paragraph 1 FamFG, whereby § 114 Paragraph 4 FamFG nevertheless again has a number regulates exceptions to the legal requirement. This results - in a practically significant way - a legal obligation to file an application for divorce at the district court (family court), while the other spouse does not need a lawyer if he only agrees to the divorce, agrees to withdraw the application for divorce or withdraws his consent to the divorce ( Section 114 para. 4 No. 3 FamFG). Likewise, no lawyer is required in proceedings on legal aid ( Section 114 (4) No. 5 FamFG).
Independent family matters that are not family disputes, i.e. in particular matters relating to children, matters of parentage , matters of adoption, etc. , are therefore not covered by this legal requirement to lawyer. In these proceedings, there is also no legal obligation at the family court or the family senates of the higher regional courts.
Duty to have a lawyer in proceedings under the Administrative Court Code
General regulation
In § 67 Verwaltungsgerichtsordnung (VwGO) the legal duty is controlled and links these, regardless of the method, to the appropriate court. In all proceedings under the VwGO there is no compulsory lawyer before the administrative court ( Section 67 (1) VwGO, so-called "principle of self-representation"), while there is a general obligation to represent before the Higher Administrative Court (in some federal states also referred to as the Administrative Court ) and the Federal Administrative Court ( Section 67 (4), sentences 1 and 3 VwGO, so-called "principle of compulsory representation by lawyers or university lecturers") and only procedures are excluded that relate exclusively to the granting or revocation of legal aid . In this respect, the decisive factor is which court will ultimately decide the procedure or the procedural stage, but not which court an appeal will be lodged with ( Section 67 (4), sentence 2 VwGO). In tax matters (including trade tax , property tax , contribution and fee matters ), tax advisors and auditors are also authorized to represent before the Administrative Court and the Higher Administrative Court ( Section 67 Paragraph 2 No. 3, Paragraph 4 VwGO).
Authorized representatives and authority privilege
Representation at the Higher Administrative Court and the Federal Administrative Court can be done by lawyers, but also by law teachers at state or state-recognized universities who are qualified to hold judicial office, Section 67 (2), sentence 1 VwGO. Authorities and legal entities under public law can largely be represented by official employees who are qualified to hold judicial office (so-called authority privilege, Section 67 (4), sentence 4 VwGO). Further special regulations exist for representation at the Higher Administrative Court in special cases ( Section 67 (4) sentence 5 ff. VwGO).
Legal consequences of a violation of the obligation to represent
The lack of postulation ability follows from an existing but not complied with duty of representation, i.e. H. All procedural acts carried out (in particular also filed legal remedies) are deemed to be ineffective, so that no deadlines can be observed. A cure through the subsequent approval of a representative capable of postulation is not possible. If the passive party is not represented or not sufficiently represented, a factual decision can still be made (see Section 102, Paragraph 2 VwGO). In this respect, a default judgment is alien to the administrative court order; the court has to investigate the facts ex officio ( Section 86 (1) sentence 1 VwGO) and decide on a permissible application in the matter, even if the defendant or defendant is not properly represented and cannot submit effective substantive applications.
Obligation to have a lawyer in proceedings under the Social Court Act
In § 73 SGG the legal requirement is regulated and ties this, regardless of the respective procedure, to the competent court. In all proceedings before the social court and the regional social court, there is no compulsory lawyer ( Section 73 (1) SGG, so-called "principle of self-representation"), while before the Federal Social Court there is a general obligation to represent ( Section 73 (4) sentences 1 and 2 SGG, so-called "principle of compulsory representation by lawyers or university professors") and only procedures are excluded that relate exclusively to the granting or cancellation of legal aid .
The regulation largely corresponds to the regulations of the administrative court code (see above), also with regard to the authorized representatives and legal consequences.
Exceptions
Adjacent status proceedings on court and attorney's fees, administrative complaints, inspection of files and the issuing of extracts from files, administrative fines, rejection of judges and emergency lawyers, custody against personal violation and perversion of rights do not belong to the core area of compulsory lawyers.
In legal aid proceedings, there is no compulsory lawyer even before the Higher Administrative Court and the Federal Administrative Court in accordance with Section 67 (4) sentence 1 VwGO. This also applies to the application for the appointment of an emergency lawyer.
The declaration of membership by a secondary intervener in independent evidence proceedings before the regional court is also not subject to legal requirements.
literature
- Bruno Bergerfurth: The lawyer requirement and its exceptions . Verlag Giesekind, Bielefeld 1981, ISBN 3-7694-0698-2 .
- Petra Christina Fabienke: Basic principles of compulsory lawyer and their realization in civil proceedings . Nomos-Verlag 1997, ISBN 3-7890-4944-1 .
- Hermann Menzyk: Restriction of legal protection under administrative courts . In: The lawyer. 1999, p. 3, ISSN 0723-5577
See also
Individual evidence
- ↑ BVerfG, decision of October 11, 1976, Az. 1 BvR 373/76, reference at juris.de; BVerfG, decision of August 20, 1992, Az. 2 BvR 1000/92, reference at juris.de.
- ↑ ECHR, judgment of November 24, 1986, Az. 9063/80 Gillow / Great Britain, decisions of the European Court of Human Rights 3, 306, Rz. 69; ECHR, judgment of May 10, 2007, Az. 76680/01 AS / Germany, juris, Rz. 107 ff.
- ↑ ECHR, judgment of February 18, 1999 26083/94 Waite u. Kennedy / Germany, NJW 1999, 1173
- ↑ BVerwG, judgment of January 20, 2016, Az. 0 C 17.14, full text .
- ↑ Sodan / Ziekow, VwGO, § 67, Rn. 44
- ↑ cf. Ks NVwZ 2009, 1445.
- ^ BGH, decision of July 12, 2012, Az.VII ZB 9/12, full text .
