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The defendant is a party involved in a contentious legal proceeding .

Process-related importance

In civil proceedings as well as in labor , administrative , social and financial jurisdiction proceedings , a natural or legal person is referred to as a defendant who is brought against the plaintiff in court . The two-party principle as a process maxim defines the adversarial structure of these processes, in which one party seeks legal protection against the other. In principle, there must be different legal personalities on the plaintiff and defendant side.

This party designation does not exist in the non-adversarial procedures of voluntary jurisdiction and in criminal proceedings . In the application process of the FamFG , according to Section 7 mainly involves the applicant. Other people can be called in as participants. In real disputes such as family disputes according to § 113 5 no. 4 FamFG the place called para. Defendant the designation defendant . The person against whom the public prosecutor's office takes action is referred to as the accused , accused or accused , depending on the stage of the proceedings .

Right defendant

In the ordinary and labor courts, the defendant must emerge from the application that the plaintiff has submitted to the court. It is the party against whom the applications contained therein are directed ( Section 253 (2) ZPO).

In the procedural laws of general and special administrative jurisdiction , the defendant's status as a participant results from § 63 No. 2 VwGO, § 69 No. 2 SGG, § 57 No. 2 FGO mentioned.

The legal entity principle applies to the passive legitimation in the administrative process . According to Section 78 (1) No. 1 VwGO , the “correct defendant” is the legal entity of the authority that is obliged to issue the coveted administrative act or that has neglected to issue it. If it is a legal corporation or an institution under public law, the application must be directed against the corporation or the institution. The legal entity principle also applies in social court proceedings, although there is no norm in the Social Court Act (SGG) corresponding to Section 78 VwGO . In tax court proceedings, according to the authority principle, the action must always be directed directly against the authority ( Section 63 FGO).

Individual evidence

  1. Rosenberg / Schwab / Gottwald, civil procedure law , 17th edition 2010, § 40 marginal no. 26. Stein / Jonas / Leipold, ZPO commentary , 22nd edition 2013, before Section 50 marginal no. 18th
  2. Hubert Schmid: ZPO II. Part 1.2: Parteilehre Universität Trier, 2017, p. 4 ff.
  3. Jürgen Vahle, Dirk Weber: The administrative and social court proceedings - factual judgment requirements and procedural principles DVP 2014, p. 399 ff., P. 407
  4. Elizabeth Strassfeld: Authority as a "right" involved? Legal entity principle versus authority principle SGb 2010, pp. 520–522