Culpa in procedendo

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Culpa in procedendo ( dt: culpability in the process) denotes the breach of duties or obligations towards the opposing party in the process and, subsequently, the occurrence of unfair damage without any other legal relationship between the parties (usually through so-called abusive litigation) .

Content, development and legal basis

In the case of the culpa in contrahendo , in which the people face each other as potential contractual partners, for example, there is increased liability between the parties. This increased liability, which is comparable to contractual liability, is justified by the fact that, although there is no contractual relationship, there is a relationship of trust between the parties that requires special care with regard to the legal interests of the other.

In the area of ​​civil litigation, the parties face each other as opponents. Nevertheless, there is also a special level of trust between them or the parties are embedded in a contract-like system of obligations, because they are linked to one another in a joint, legally regulated process, which is why the culpa in procedendo is generally also considered in these cases. In civil proceedings, regulations for the protection of the opponent are also contained and necessary. Likewise, one party can cause damage to the other by selecting the unsuitable legal representative or authorized vicarious agent.

Germany

The teaching in Germany rejects the adoption of a special connection between the parties to the procedure / process opponents in the knowledge process and between debtors and creditors in civil enforcement conditions from.

The Reichsgericht originally took a different view on Section 85 of the German Code of Civil Procedure (ZPO) and also subsumed the material-legal effects of culpable procedural acts by authorized representatives under it . However, this case law was subsequently not upheld and the rejection of this legal institution by the BGH and the predominant legal doctrine was adopted or continued. In principle, § 85 ZPO is only of procedural significance and no substantive or analogous application is fundamentally not possible.

With regard to the culpa in procedendo, jurisprudence and teaching have been under discussion in Germany for many years (especially with regard, for example, to the legal institutions standardized in the ZPO, some of which also serve to protect the opponent; see, for example: Section 138 (1) ZPO, Section 282 (1) ZPO). It is also argued that based on the culpa in contrahendo in substantive law there must also be liability from culpa in procedendo in procedural law with substantive legal claims and that there are numerous comparabilities.

Austria

Section 408 of the Austrian Code of Civil Procedure from 1895 stipulates that a party who is unsuccessful in the proceedings and who has apparently deliberately led a lawsuit can be sentenced to pay a corresponding amount of compensation at the request of the victorious party (para. 1). This amount of compensation is to be determined by the court according to its own free conviction (Paragraph 3).

The General Court Regulations (AGO) from 1781 already stated: If the judge noticed an obvious unlawfulness and particular courage in the trial that was carried out, or in the appellate measure that had been taken, or in a revision at one or another party, he would have it Parthey, and their appointed legal friend, with a reasonable penalty in money or in bondage . In the General Court Regulations, this was still a penal sanction, today it is designed as a compensation law sanction at the request of the opposing party.

Although the provision was contained in § 408 ZPO 1895 for over 100 years, or in the previous provision § 409 AGO for over 200 years, the Supreme Court in Austria only dealt with it in 2008.

Liechtenstein

In 1912, Liechtenstein largely adopted the Austrian Code of Civil Procedure and also Section 408 of the ZPO, which regulates the culpa in procedendo. In contrast to Section 408 (3) ÖZPO , however, Section 408 (3) FL-ZPO is worded differently and refers to Section 273 FL-ZPO, after “ the court on application or ex officio itself with overriding one offered by the party Proof can set this amount according to free conviction ”.

In the case law in Liechtenstein, the case law of the Austrian Supreme Court on the Austrian code of civil procedure is used to interpret the Liechtenstein code of civil procedure.

Demarcation

Attribution of the acts of the legal representative

In Germany, Austria and Liechtenstein, the provisions of civil procedural law apply to the parties as well as to their authorized representatives (e.g. lawyers). Default and negligence on the part of the agent of the party are therefore attributed to the party to the proceedings. The culpa in procedendo differs from the legal view recognized in all three countries that fault on the part of the representative is equal to fault on the part of the party because this fault from culpa in procedendo was caused by the litigation party itself (through action or omission) and the material Right concerns.

Official procedure

The culpa in procedendo is not applicable in Austria and Liechtenstein in non-adversarial proceedings or in official proceedings to be initiated or initiated (e.g. in land register proceedings, trustee proceedings, insolvency proceedings).

Similar legal institutions

The “counterpart” to the procedural culpa is the contract-based culpa in eligendo . In the case of culpa in eligendo, the third party recognizable as incompetent at culpa in procedendo is the litigator whose actions the litigant must be accountable for. The pre-contractual “ culpa in contrahendo ” or the post-contractual “ culpa post contractum finitum ” has a similar effect . These legal institutions record violations that occur in connection with the execution of a contract.

example

In order to be able to address the culpa in procedendo, the improper use of the court must be clearly demonstrable, since willful intent within the meaning of § 408 ZPO always presupposes intent . Litigation in good faith thus excludes the culpa in procedendo and only carries the risk of having to pay legal costs.

Austria and Liechtenstein

If procedural acts are taken by a party, even though they know that a litigant / opposing party may suffer financial disadvantages as a result, the party is liable for damages if, with due care, it should have recognized that the legal point of view represented in the proceedings is futile.

In any case, the opposing party / party to the proceedings is liable according to § 408 ÖZPO or FL-ZPO, who takes procedural acts or maintains legal remedies, only to put the other side under pressure.

Legal consequences

If one party to the proceedings culpably violates its obligations and the other party to the proceedings suffers damage as a result, the other party to the proceedings is generally obliged to compensate for this damage in Austria and Liechtenstein. However, it is important to ensure that the decision is legally binding.

Since the culpa in procedendo sanctions the behavior of the opponent / party to the proceedings, the sanction cannot be directed against the authorized representative (e.g. lawyer). However, if the authorized representative has taken the actions that lead to the liability of the party to the proceedings according to § 408 ZPO, the party to the proceedings can assert recourse claims against the authorized representative .

See also

literature

  • Carmen Viola Diengsleder, Obligation to pay compensation for witnesses , Graz 2010, dissertation, online publication
  • Philipp Fidler, Damages and Litigation - Basics and System of Liability of Litigation Parties , Vienna 2014, Dissertation, Manz Verlag, ISBN 978-3-214-03788-8 .
  • Wolfgang Fleck, The honesty obligations of the parties in civil proceedings  : validity and function , Munich 2004, Beck Verlag, Univ. Diss., ISBN 9783406513749 .
  • Kerstin Prange, Substantive legal sanctions in the event of a breach of procedural truthfulness by witnesses and parties , Berlin 1995, dissertation, Duncker & Humblot, ISBN 3-428-08464-0 .
  • Barbara Seidl, claim fame, reimbursement of extrajudicial legal defense costs in the event of unjustified assertion of claims , Verlag Utz, Munich 2014, dissertation, ISBN 978-3-8316-4282-3 , online Google books .

Individual evidence

  1. ↑ See e.g. B. Lüke, observations on the procedural law relationship , ZZP 108, 1995, pp. 427, 443, 447 f, with further references.
  2. ↑ See e.g. B .: Walter Zeiss, Die frglistige Prozesspartei , contribution to the legal theoretical specification of a prohibition of malicious behavior in the cognitive proceedings of civil proceedings, Berlin 1967, Duncker & Humblot, p. 19; Burckhard Heß in “Code of Civil Procedure and Ancillary Laws”, founded by Bernhard Wieczorek, ed. by Rolf A. Schütze, 3rd edition, Berlin 1999, de Gruyter Verlag, ISBN 3-11-016286-5 , § 717 margin no. 44 Online Google.books .
  3. ↑ LZ 1915, 363
  4. ↑ RGZ 196, 177; RGZ 158, 357
  5. ↑ VersR 1957, 301; BGHZ 58, 207. Fluctuating: BGHZ 28, 207 (212, 214); BGHZ 74, 9 (11). See also Arwed Blomeyer : Civil Procedure Law. Enforcement proceedings. Springer, Berlin a. a. 1975, ISBN 3-540-07286-1 , p. 151.
  6. ↑ See e.g. B. v. Mettenheim in MünchKomm ZPO 4 , § 85 Rz 13; Weth in Musielak, ZPO , § 85 Rz 4; Bork in Stein / Jonas, ZPO 22 § 85 Rz 2, 10, 26, 27; Vollkommer in Zöller, ZPO 26 , § 85 Rz 4; Horst Konzen, legal relationships between litigants , Duncker and Humblot, Berlin 1976, p. 289 f; Pfeil, The liability of the obligee and his lawyer for damages caused by foreclosure measures , dissertation, Bielefeld 2004, p. 112 f. Different view: Steiner in Wieczorek / Schütze, ZPO³ [1994] § 85 Rz 2; Vollkommerin Zöller, ZPO 26 , introduction, margin no. 52; Rosenberg / Schwab / Gottwald, civil procedure law 16 , § 2, margin no. 19; Lüke, Considerations on the procedural law relationship , ZZP 108, 1995, pp. 427, 441 ff.
  7. ↑ Rosenberg / Schwab / Gottwald, civil procedure law 16 , § 2, margin no. 19; Lüke, Considerations on the procedural law relationship , ZZP 108, 1995, pp. 427, 441 ff.
  8. ↑ Code of Civil Procedure, RGBl. No. 113/1895.
  9. ↑ General court order for Böheim, Moravia, Silesia, Austria above and below the Ennß, Steyermarkt, Carinthia, Krain, Görz, Gradiska, Triest, Tyrol and the Vorlanden.
  10. ↑ See decision 6 Ob 156 / 08x.
  11. ↑ Law of December 10, 1912 on the judicial procedure in civil disputes (Code of Civil Procedure), LGBL 9/1 of December 10, 1912.
  12. ↑ See 85 para. 2 of the German Code of Civil Procedure. Jurisprudence: RGZ 196, 177; RGZ 158, 357; BGHZ 66, 122; BVerfGE 35, 41, 46; BVerfGE 60, 253.
  13. ↑ See § 34 in conjunction with § 39 ÖZPO, partly derived from § 245 Paragraph 1, §§ 512, 528 Paragraph 4 ZPO.
  14. ↑ See § 34 in conjunction with § 39 FL-ZPO. In Liechtenstein, the provisions of the Austrian ZPO regarding willful punishment were not fully adopted or regulated somewhat differently. See e.g. B. Articles 452 Paragraph 3, 481, 496 Paragraph 2 FL-ZPO.
  15. ↑ Probably in the case of an abusively filed bankruptcy application, 6 Ob 156 / 08x.
  16. ↑ 10 ObS 142 / 07s
  17. ↑ SZ 51/172.
  18. ↑ 3 Ob 161 / 97s, 10 ObS 142 / 07s.
  19. ↑ SZ 59/159.
  20. ↑ Lüke, Considerations on the procedural law relationship , ZZP 108, 427, 443.
  21. ↑ 6 Ob 156 / 08x; 8 Ob 9 / 13a.