Exclusion judgment
The exclusion judgment was a judicial final decision in the public notice procedure and until the entry into force of the FamFG on September 1, 2009 a special form of the structural judgment under German civil procedure law .
Importance and procedure
The exclusion judgment was issued in the public notice procedure according to §§ 946 to 1024, § 925 ZPO in the version valid before September 1, 2009. It was issued in a public session by the responsible magistrate.
In certain cases, anyone who invokes rights needs a document in which the right is evidenced . If the document is lost, this means for the right holder that he can no longer enforce his right. If the right holder wanted to prevent an unauthorized third party from asserting the right he was not entitled to by referring to the document in his hands, he could apply for a public notice procedure (§ 947 ZPO old version). The public announcement procedure ended with the exclusion judgment. With this decision, the judge declared the document to be invalid (§ 1017 ZPO old version) and thus removed its legitimacy effect.
However, deficiencies in the document could not be cured by the exclusion judgment, because otherwise more rights could have been derived from the judgment than from the deed declared invalid.
There was no legal remedy against the exclusion judgment (Section 957 (1) ZPO old version). A retrial was not admissible. Rather, Section 957 (2) ZPO (old version) opened the specific legal remedy for the avoidance action, in which the plaintiff had to assert certain grounds for avoidance (Section 957 (2) No. 1 to 6 (old) ZPO).
Exclusion decision
The exclusion decision was replaced by the exclusion decision on September 1, 2009 in the proceedings pursuant to Sections 433 ff. FamFG . The Rechtspfleger is functionally responsible ( Section 3 (1) No. 1c RPflG ).
The legal remedy of the complaint is open against the decision according to the general regulations of § 58 ff. FamFG. Furthermore, in deviation from the previous law, an application to reopen the proceedings is permissible; a limitation of the resumption to certain reasons such as the grounds for avoidance according to § 957 Abs. 2 ZPO is not applicable.
Individual evidence
- ↑ § 925 ZPO old version, buzer.de, accessed on April 17, 2019
- ^ Public notice procedure Rechtslexikon.net, accessed on April 17, 2019
- ↑ Peter Mock: Loss of the mortgage lien: what now? November 3, 2008
- ↑ OLG Hamm WM 1976, p. 76 ff.
- ↑ Baumbach / Lauterbach / Albers / Hartmann, ZPO, 65th edition 2007, Rn. 1 to Section 957
- ^ Draft of a law to reform the procedure in family matters and in matters of voluntary jurisdiction (FGG Reform Act - FGG-RG) BT-Drs. 16/6308 of September 7, 2007, p. 294 ff.
