Completion declaration
In German procedural law, a declaration of completion is a process with which a party to the dispute declares the main dispute to be settled. A distinction is made between a bilateral (matching) and unilateral declaration of completion.
Corresponding declaration of completion by the plaintiff and the defendant
A corresponding declaration of completion exists if the parties involved in the process ( plaintiff and defendant ) have agreed that the main thing has been completed. Based on the disposition maxim, you can end the litigation of the dispute. In this context, the defendant does not necessarily have to actively submit a declaration of completion; rather, if the defendant does not object, the claimant provides a declaration of completion within a two-week period from the delivery of the declaration of completion by the plaintiff, the fiction of Section 91a (1) sentence 2 ZPO. Thereafter, the defendant's declaration of completion is deemed to have been made if he was previously advised of this consequence.
The court then no longer decides on the main issue (e.g. on a claim for surrender), but only on the costs. Section 91a (1 ) sentence 1 of the Code of Civil Procedure regulates how the costs incurred up to the end of the lis pendens ( court costs and legal fees ) are to be distributed.
At a reasonable discretion, taking into account the current state of affairs and disputes, the costs are to be decided by resolution (court) . The focus here is on who would probably have had to bear the costs if a contested judgment had been issued (so-called "incident examination").
With a decision of March 18, 2010 (Az. I ZB 37/09), the Federal Court of Justice decided the following on this subject (official guiding principle):
"If the parties agree that an action for injunctive relief brought before the incompetent court, but substantiated on the merits, has been settled in the main, after the defendant has complained about the lack of jurisdiction and has then submitted a declaration of cease and desist, the costs of the legal dispute must be imposed on the defendant."
Unilateral declaration of completion by the plaintiff
Until the 1st Justice Modernization Act of August 24, 2004 came into force on September 1, 2004, the unilateral declaration of completion, which can only be issued by the plaintiff, was not regulated by law. A unilateral declaration of completion by the defendant - d. H. without the consent of the plaintiff - is not possible because he is not allowed to dispose of the subject of the dispute. Despite the lack of statutory regulation, the plaintiff's unilateral declaration of completion was generally recognized in order to enable him to avoid the mandatory costs of bearing the costs under Section 91 ZPO if his complaint was originally admissible and justified, i.e. H. before the relevant event occurs.
The plaintiff's declaration of completion is predominantly viewed as an always admissible amendment to the complaint pursuant to Section 264 No. 2 ZPO. The lawsuit remains pending with the application for determination of completion. This declaratory action, § 256 ZPO (disputed legal relationship = procedural law relationship; declaratory interest = interest in costs), is justified if the action was originally admissible and justified and subsequently became inadmissible or unfounded as a result of a settling event.
The problem has largely been resolved with the new version of § 91a ZPO effective September 1, 2004. Accordingly, the court decides on the costs of the proceedings, taking into account the current state of affairs and the dispute, at its own discretion, even if the defendant does not object to the plaintiff's declaration of completion within an emergency period of two weeks from the delivery of the written pleading, and he has previously raised this consequence has been pointed out.
In § 91a ZPO, however, the case of a unilateral declaration of completion is not regulated if the defendant does not agree. In this respect, § 264 No. 2 ZPO has to be avoided.
If the settling event was between the filing of the complaint ( pending ) and service ( lis pendens ) - or before the filing of the complaint, the settlement of the main matter cannot be determined by judgment, as no main matter was present.
In the unilateral declaration, the court only examines whether a settling event has taken place and whether the original performance action was admissible and well founded. There is no settlement if the defendant only pays to avert foreclosure .
See also
literature
- Matthias Niedzwicki: From practice: The one-sided settlement in administrative court proceedings of the municipal contribution law , in: Juristische Schulung (JuS) 2008, p. 983 f.
- Dieter Knöringer: The settlement of the main thing in civil proceedings , in: Juristische Schulung (JuS) 2010, p. 569 f.
Web links
Individual evidence
- ↑ BGH, decision of March 18, 2010 - I ZB 37/09 . TGRAMEDIA. Retrieved March 29, 2019.
