Auxiliary request

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In civil proceedings under the German Code of Civil Procedure , an auxiliary application is a procedural act that is submitted in addition to the main application. This is a different claim (e.g. change instead of reduction) and not just a different calculation (e.g. actual damage instead of lump sum) or justification for the same claim (auxiliary reason). An auxiliary request can also be submitted again under an auxiliary request (auxiliary request), etc.

An auxiliary request can be:

  • real auxiliary request or
  • spurious auxiliary request .

Demarcation

As with any other application, an auxiliary application may be decided by the court in the operative part of the judgment.

  • An auxiliary submission is an alternative fact that the court must examine in order to rule on the claim, e.g. B. "if the contract was not concluded by A on January 1, 2014, it was concluded by his representative B on February 2, 2014".
  • An auxiliary statement justifies the claim with other legal ideas, e.g. B. "If the defendant did not act willfully, he is also liable out of negligence".
  • An alternative justification justifies the claim with a different legal object and legally represents an auxiliary request, e.g. B. "The claim arises from the rent demand for April and, if necessary, from the rent demand for March, provided that the payment from May should be offset against the April rent and not against the March rent".
  • The auxiliary set-off should only consume the counterclaim if the court considers the claim to be given; this is particularly important in cases of the statute of limitations objection, since the unconditional set-off would otherwise also be effective against a statute-barred claim.
  • The admissibility of an auxiliary counterclaim is to be checked on a case-by-case basis and z. B. given in the case of auxiliary offsetting, since the subject of the auxiliary counterclaim then coincides with a subject that was previously the subject of the process.

Real request for help

A real auxiliary request is an auxiliary request that is only to be decided if the main request has been decided negatively (i.e. it is rejected). If the main request is partially rejected, it must be interpreted whether part of the main request should then be awarded or whether the auxiliary request should replace the main request as a whole.

Amount in dispute

This has the effect on the fee dispute that it is increased by the amount in dispute of the genuine auxiliary request in accordance with Section 45 (1) sentence 2 of the Court Fees Act if a decision is made on the genuine auxiliary request (i.e. the main request has already been decided).

Fake auxiliary request

A fake auxiliary request is an auxiliary request that is to be decided on if the main request has been decided positively.

example

One party to the litigation is sentenced to surrender an item, alternatively to compensation for damages after an unsuccessful expiry of a reasonable period after a final judgment.

Amount in dispute

This has the effect on the fee disputed value that it results from the maximum of the disputed value of the successful main claim and the disputed value of the spurious auxiliary request in accordance with Section 45 (1) sentence 3 of the Court Fees Act .