Judicial notification obligation (Germany)

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The judicial notification obligations standardize the claims of the litigants to be informed by the court of special circumstances or opinions of the court. They differ in the individual rules of procedure.

Germany

Civil litigation

The principle of presentation applies in civil proceedings . For this reason, the parties must first and foremost explain themselves fully and truthfully in their written and oral presentations about all facts relevant to the decision ( § 130 , § 138 ZPO). However, the process management and decision-making are the task of the court ( Section 136 ZPO).

The material process management according to Section 139 of the ZPO in the version that has been in effect since January 1, 2002 is intended to ensure a fair trial for the parties and a fair hearing ( Art. 103 (1) GG, see BVerfG ) as well as the court's joint responsibility for a comprehensive factual and legal clarification highlight the subject of dispute.

Content and scope

The judge must openly and unreservedly discuss the facts and legal questions with the parties in the first and second instance according to Section 139 (1) ZPO. The notices must not only be complete and timely, i. H. possibly take place before the oral hearing, but also clearly identify which clarification, which lecture or which evidence the court still considers necessary. They are to be put on record (Section 139 Paragraph 4 ZPO). This is of particular importance with regard to the review of possible legal errors within the meaning of § 546 ZPO in appeal ( § 513 ZPO) or revision ( § 545 ZPO). The lack of documentation means that the appellate court must assume that the notice has not been given in the event of a corresponding procedural complaint and must refer the matter back to the court of origin. If an appeal is not admissible, a complaint by the complained party may lead to the continuation of the legal dispute in accordance with Section 321a of the German Code of Civil Procedure. If, after the last oral hearing, but before the judgment is canceled, the court determines that the duty to inform and provide information has been violated, the hearing is To reopen Section 156 (2) No. 1 ZPO. On the other hand, a violation of the obligation to discuss cannot be successfully reprimanded.

The obligation to notify applies in particular if the party concerned has clearly overlooked an aspect or considered it to be insignificant, Section 139 (2) sentence 1 ZPO. Advice from the opposing party does not mean that the judicial obligation to notify is no longer necessary. The obligation to point out concerns about admissibility relates to the process and legal remedy requirements , Section 139 (3) ZPO.

The court, i.e. the panel in its entirety, is responsible for providing the information. The court must give the affected party an opportunity to respond to the notice. If necessary, the party concerned must be given a written deadline in accordance with Section 139 (5) ZPO in conjunction with Section 296 a sentence 2 ZPO. A declaration made in response to the notification cannot be rejected as being late in accordance with § 296 ZPO.

Repeated notification may be necessary if the party concerned does not provide a sufficient explanation in response to the notification. The court may only work towards changing requests if they are within the scope of the litigation of the party. The necessity of naming evidence must be pointed out if the other submissions show that the failure to provide evidence is due to an oversight. It is permissible and necessary to clear up contradicting and ambiguous factual presentations.

In the context of the legal discussion in accordance with Section 139 (1) ZPO, it should be pointed out, for example, that the court wants to interpret a contract differently than the parties. The court may also point out that an application for the issuance of a default judgment or a declaration of completion along with an application for a resolution in accordance with Section 91 a ZPO can be made or that an incorrect party designation is corrected.

Limits

The obligation to provide information is limited by the requirement of judicial neutrality . The judge may not unilaterally take the side of one party through his advice. If the judge gives the impression of partiality, he can be rejected according to § 42 ZPO because of the concern of bias .

It is very controversial whether the judge may point out the objection to the statute of limitations . The Federal Court of Justice denied this in 2003.

Administrative process

The administrative courts decide on public disputes of a non-constitutional nature ( Section 40 VwGO ). Insofar as the VwGO does not contain its own provisions on the procedure, the code of civil procedure is to be applied accordingly, if the fundamental differences between the two types of procedure do not exclude this ( Section 173 VwGO). The principle of investigation dominates in the administrative process , but it also has elements of the principle of submission , for example in the case of the rejection of late submissions in accordance with Section 87b VwGO.

According to Section 104 (1) VwGO, the chairman must actually and legally discuss the dispute with the parties involved. This discussion must cover the result of a possible taking of evidence ( Section 108 (2) VwGO). However, the scope of the discussion in the individual case must be based on the respective concrete situation. As a rule, the assessment of the evidence, the resultant evidence and the conclusions to be drawn from it are reserved for the final judicial consultation and therefore evade prior discussion with those involved.

According to Section 86 (3) VwGO, the chairman has to ensure that formal errors are eliminated, unclear applications are explained, pertinent applications are made, inadequate factual information is supplemented, and all declarations essential for the establishment and assessment of the facts are made. As in civil proceedings , the duty to provide information serves to safeguard the right to be heard , in particular to prevent those involved from being surprised by the court's decision .

In this respect, the VwGO contains its own provisions on the procedure. There is therefore no need to apply Section 139 ZPO accordingly.

§ 155 FGO and § 202 SGG containregulations corresponding to § 173 VwGOfor special administrative jurisdiction .

The duty to inform and provide information is not only intended to facilitate the proper implementation of the procedure and to prevent the implementation of the formal procedural rights and material claims available to the participants from failing due to their inexperience, clumsiness or lack of legal knowledge. Above all, it should also contribute to a correct decision by the court in accordance with the law. In addition, what was said about § 139 II ZPO applies accordingly.

Criminal trial

The principle of investigation applies unreservedly in criminal proceedings . The judicial notification and clarification obligations are finally regulated for criminal proceedings in the StPO . The central regulation for the main hearing is § 265 StPO.

Only the offense admitted in the indictment ( § 151 , § 200 StPO) or supplementary indictment ( § 266 StPO) is the subject of the main hearing and the judgment ( principle of immutability , § 264 StPO). The court must therefore point out a change in the legal aspects or the situation ( Section 265 of the Code of Criminal Procedure in the version in force since July 25, 2015). The duty to provide information serves the defendant's legitimate defense interests before a surprise decision. The defense attorney should also have the opportunity to prepare his defense appropriately, for example against newly presented facts on the behavior of the perpetrator. If necessary, the main hearing is to be suspended for this (Section 265 (3) and (4) StPO).

The type and scope of the obligation to notify, in particular the question of whether and to what extent the obligation to notify also extends to secondary penalties ( driving ban , Section 44 StGB) and side effects ( loss of official capacity, eligibility and voting rights , Section 45 StGB), have long been controversial.

An expert commission set up by the Federal Ministry of Justice and Consumer Protection in 2014 therefore advocated an expansion and clarification of the notification obligations in Section 265 of the Code of Criminal Procedure. The expert commission saw a limit, however, where obligations would be created that would hinder the judgment court in its conviction and thus jeopardize the process of establishing the truth. For this reason, the Commission did not recommend that the court be obliged to issue preliminary assessments, to take evidence or to conduct legal talks at the beginning of the main hearing. However, according to § 257b StPO discuss the status of the proceedings with the parties involved in the main hearing. Since July 2015, the obligation to notify has also related to measures for improvement and security (Section 265 (2) of the Code of Criminal Procedure).

In addition to Section 265 of the Code of Criminal Procedure, there is a special obligation to inform from Section 257c, Paragraph 4, Clause 4 of the Code of Criminal Procedure, if the court no longer considers the conditions for an actual understanding to be met.

Based the decision on a lack of notice would therefore defendant or defender is under proper notice differently and more effectively defended as done, the judgment can the revision be challenged.

Austria, Liechtenstein

In Austria and Liechtenstein, the term manuction obligation is also used .

Web links

Individual evidence

  1. ↑ a b Ekkehart Reinelt: § 139 ZPO - The judicial process promotion obligation in practice Bayerischer AnwaltBrief, November 2007
  2. ↑ BGH, decision of September 17, 2015 - IX ZR 263/13
  3. ↑ Draft law of the federal government of a law for the reform of the civil process BT-Drucksache 14/4722 of November 24, 2000, p. 77 f.
  4. ↑ a b c d e f g h i j k l m Zöller, Commentary on the ZPO, 31st edition 2016, marginal no. 5 ff on § 139 ZPO
  5. ↑ BGH NJW 2002, 3317
  6. ↑ See Zöller, ZPO, Rn. 3 to § 139 ZPO
  7. ↑ OLG Hamm, NJW-RR 2003, 1651
  8. ↑ OLG Munich, NJW-RR 1997, 1425
  9. ↑ BGH NJW 1998, 155
  10. ↑ BGH NJW-RR 2002, 1071
  11. ↑ BGHZ 24, 278
  12. ↑ Baumbach / Lauterbach / Hartmann: Commentary on the Code of Civil Procedure (ZPO) , 2012, § 139 margin no. 89 mwN
  13. ^ BGH, decision of October 2, 2003 - V ZB 22/03
  14. ↑ Kopp / Schenke, Commentary on VwGO, 21st edition 2015, para. 22 ff on § 86 VwGO
  15. ↑ a b BVerwG, decision of June 16, 2003 - 7 B 106.02
  16. ↑ BVerwG, decision of February 5, 1999 - 9 B 797.98 - Buchholz 310 Section 108 (2) VwGO No. 4
  17. ↑ This is how the ZPO reform affects the administrative court proceedings ( Memento from January 2, 2016 in the Internet Archive ) November 1, 2003
  18. ↑ a b Schneider, MDR 1977, 881
  19. ↑ BVerwG, NVwZ 1985, 36
  20. ↑ BVerfGE 42, 73
  21. ↑ Meyer-Goßner / Schmitt, Commentary on StPO, 58th edition 2015, marginal no. 10 ff on § 244 StPO
  22. ↑ Amendment to § 265 StPO from July 25, 2015 buzer.de
  23. ↑ BGH, decision of January 12, 2011 - 1 StR 582/10
  24. ↑ BGH StV 1993, 179
  25. ↑ Stuckenberg in Löwe-Rosenberg, StPO, 26th edition, 2013, § 265 Rn. 72 ff.
  26. ↑ Report of the expert commission on the more effective and practical design of general criminal proceedings and juvenile court proceedings, as of October 2015, p. 118 ff.
  27. ↑ BGH NJW 2011, 2377
  28. ↑ Detlef Burhoff: Procedural tips and information for defense lawyers (I / 2011) III. 2. Legal notice (§ 265 StPO), ZAP Heft 6/2011, p. 673 ff.