International Civil Procedure Law (Germany)

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The International Civil Procedure ( IZVR ) is the part of the civil procedural law , which deals with international jurisdiction, the jurisdiction is concerned, the special procedures with foreign relations, recognition and enforcement of foreign judgments and international judicial assistance.

term

In legal parlance, international civil procedural law refers to that part of national civil procedural law, including the applicable norms of international and European origin, which deals with the issues arising from court proceedings with foreign relations , in particular the jurisdiction , the specifics of the actual proceedings and the recognition and enforcement of foreign ones Decisions.

The question of the applicable substantive law must be strictly separated from international jurisdiction . The latter is based on private international law (IPR) .

history

→ Main article: History of private and civil international procedural law

Legal principles

In the IZVR, the basic principle of forum regit processum applies . H. the judging court always applies its own procedural law, the lex fori (the law which applies according to the law of the place of jurisdiction). The lex fori also applies to the course of the procedure . This was justified earlier with the legal nature of procedural law as part of public law (principle of territoriality ), while more recently practicality has come to the fore: the courts are more familiar with the application of their own procedural law, the lex fori. Another reason for the priority of one's own procedural law is the neutrality of procedural law over substantive law, because only the court is determined through the formal clarification of international jurisdiction, but the decision in the sense of international consistency of the lex causae material determined by the IPR. legally follows.

As a counterpart to the equivalence of legal systems (basic principle of PIL), the equivalence of the administration of justice in the various states in the IZVR is assumed.

This principle is modified by the third basic principle of the IZVR: The principle of reciprocity , which states that foreigners in the forum state should be treated in the same way as nationals in the respective home country of the foreigner. This principle ultimately represents a means of pressure to force foreign legal systems to treat the citizens of the forum state fairly (however, in Germany, for example, Art. 103 GG and Art. 6 I ECHR mean that foreign and domestic parties are basically to be treated equally). In Germany, for example, the principle of reciprocity is legally anchored in Section 328 I No. 5 ZPO and is a requirement for recognition for foreign judgments.

Legal sources

The IZVR has the following sources of law :

  1. Autonomous sources (national law), in Germany in particular the ZPO ( civil procedure code ),
  2. National law superseding EU law such as the EuGVVO and finally
  3. Bi- and multilateral international treaties .

Cognitive process

International jurisdiction

There is no central distribution of international jurisdiction among individual states; rather, each state is entitled to determine the cognitive powers of its courts according to its own considerations of expediency. The international competence is divided into direct competence (also decision-making competence) and indirect competence (also recognition competence). Direct jurisdiction is decisive for the jurisdiction of a court in the cognitive proceedings , i.e. H. the question of whether a German court may decide a legal dispute brought before it.

Like local jurisdiction, international jurisdiction is a procedural requirement . In contrast to local jurisdiction, it does not yet appeal to a specific court. International jurisdiction is only explicitly regulated in the autonomous German law for family law (see e.g. § 98 FamFG). Otherwise, it is derived from the local jurisdiction of §§ 12 ff. ZPO (so-called double functionality of the local jurisdiction norms). The EuGVVO takes precedence over member states of the EC .

If several states grant the plaintiff legal protection (for example according to the forum delicti ), he can choose from among them. This opens up the possibility of forum shopping for the plaintiff : Since the decision on international jurisdiction also comes with the decision on the material law applicable under international private law, the plaintiff can choose the jurisdiction with the material law that seems most favorable to him.

The international jurisdiction must be examined ex officio by the court at any time . It is enough that it occurs during the procedure. If it ceases to exist during the proceedings, the prevailing opinion is that the principle of perpetuatio fori ( Section 261 (3) No. 2 ZPO ) applies analogously . In the event of a negative conflict of competencies, i.e. in the event that no court declares that it has international jurisdiction, the so-called emergency jurisdiction applies.

Foreigners as parties to the proceedings

Foreigners have the same access to German courts as nationals. According to Section 50 (1) ZPO, your party capacity is measured according to your legal capacity .

The legal capacity of a foreigner is, if it is not given according to the law of his country, to be judged according to the law of the trial court (§ 55 ZPO). According to the prevailing opinion, the lex fori applies to the process of attorney (§§ 80 to 89 ZPO) , since it is classified as a procedural act and not as part of substantive law.

According to Section 110 (1) ZPO, certain foreign plaintiffs must provide security for the costs of litigation ( actuarial deposit ) at the request of the defendant (cautio iudicatum solvi). If the foreign plaintiff refuses, the complaint can be declared withdrawn in accordance with Section 113 ZPO upon application by the defendant.

Foreign natural persons receive legal aid like domestic nationals under the conditions of § 114 ZPO . According to § 116 No. 2 ZPO, this does not apply to foreign legal persons. For foreigners from EU member states, §§ 1076 to 1078 ZPO apply as implementation of Directive (EC) 2003/8: According to this, they generally receive legal aid like nationals.

International legal assistance

The rules on international mutual legal assistance in civil matters are set out in the Mutual Legal Assistance Regulations for Civil Matters (ZRHO). According to Section 3 (1), it distinguishes between contractual and non-contractual mutual legal assistance.

If legal assistance is sought through contractual legal transactions, the channels of transmission are determined by international treaties. § 6 ZRHO differentiates between three types of transmission channels:

  1. Diplomatic way: The court sends its request letter to the state justice administration . If this accepts the request, it will be forwarded to the German embassy in the state concerned; from there it goes to the foreign ministry of that state. If the latter accepts the request, the procedural act is carried out by the German consul or the competent foreign authority.
  2. Consular way: The consul of the requesting state forwards the request directly to the competent authority of the requested state. Art. 1 para. 1 of the HZPÜ prescribes this transmission method .
  3. Direct traffic: In direct traffic it is possible for the authorities to send requests for mutual legal assistance directly to each other. This form is used in Art. 3 Para. 1 HZÜ or Art. 2 HBÜ .

There are no international treaties in the context of mutual legal assistance without a contract; In practice, the states still grant each other mutual legal assistance as a result of international law practice. For Germany, the mutual legal assistance regulations for civil matters (ZRHO) apply .

In practice, international legal assistance is often lengthy and cumbersome. Therefore the courts often try to circumvent them. For example, a witness abroad can be heard by the German consul in accordance with Section 363 (2) ZPO. Although the interrogation protocol cannot be used as it is contrary to international law, the consul can then be heard as a hearsay witness .

Delivery abroad

According to the prevailing opinion, the delivery is to be regarded as an act of sovereignty ( Schack different view ). That is why delivery is generally restricted to Germany. In autonomous German law, delivery abroad is therefore provided for in accordance with Section 183 (1) ZPO by registered mail with acknowledgment of receipt, provided that this is not contrary to international law. If this is not possible, the service should take place by means of a request for legal assistance to the authorities of the foreign state. If this is also not possible, delivery must be made via the federal diplomatic or consular representation abroad in accordance with Section 183 (2) ZPO. According to § 185 No. 3 ZPO, if all other delivery methods are not possible, the public delivery is to be made by posting a notification on the court board according to § 186 Par. 2 ZPO.

For the priority international agreements and EC regulations, see:

→ Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
→ Regulation (EC) No. 1348/2000 (EuZVO)

Evidence

According to the German lex fori, according to § 359 No. 1 ZPO, the subject of evidence can only be a disputed fact. Therefore, according to Section 138 (3) ZPO, undisputed facts do not require proof . This is a result of the principle of negotiation . In a legal system, substantive private autonomy and negotiating maxims often go hand in hand. In order not to distort this interplay when a foreign material law is applied, it may be necessary to collect evidence on undisputed questions when applying foreign material law. Refutable and irrefutable presumptions also have an influence on the collection of evidence : the lex causae also applies to these presumptions . Assumptions of a factual nature, such as prima facie evidence , are assumed by the prevailing opinion of the lex fori. For proof issues restrictions must be distinguished: Do they serve substantive interests (such as the old rule of French law "la recherche de paternité est interdite") finds the lex causae application, they serve procedural interests (such as the ban on hearsay evidence in the US ), the lex fori applies.

The objective burden of proof is subject to its substantive nature because of the lex causae . The lex fori, on the other hand, determines whether the burden of proof is reversed due to a breach of procedural obligations. The burden of proof is also to be determined according to the lex fori .

The types of admissible evidence are determined by the lex fori. In the case of evidence restrictions , a distinction must again be made according to whether this serves substantive or procedural goals. This is very controversial for Article 1341 of the French Civil Code : In order to persuade the parties to authenticate transactions of over 800 euros (since 2003), witness evidence is excluded for such transactions. According to the BGH, this is a purely procedural regulation, which is therefore not relevant. Rights to refuse to testify are also to be treated according to the lex fori.

The principle of free assessment of evidence according to Section 286 (1) of the German Code of Civil Procedure (ZPO) also remains in place in cases with a foreign element. What is in dispute is the treatment of the standard of proof : One view, because of the systematic position of Section 287, Paragraph 1, Sentence 1 of the German Code of Civil Procedure (ZPO), suggests that this, like the assessment of evidence, is based on the lex fori. According to another opinion, however, the lex causae applies here, as there is a close relationship to the burden of proof: the lower the thresholds in the assessment of evidence, the more likely a party can be burdened with the burden of proof.

The taking of evidence is also an act of sovereignty . For this reason, a German court is not allowed to take evidence even abroad. Instead, according to Section 363 of the German Code of Civil Procedure (ZPO), evidence must be taken by means of international legal assistance by foreign authorities. However, the parties are not bound by this and can even collect evidence abroad. Section 364 (2) ZPO even expressly prescribes this for public documents .

For the primarily applicable international treaties and EC regulations, see:

→ Regulation (EC) No. 1206/2001 (EuBVO)
→ Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters of March 18, 1970 (HBÜ)

Foreign law in the process

According to the prevailing opinion in jurisprudence and teaching, international private law is to be observed ex officio and not only if the parties refer to it. According to the established case law of the Reichsgericht , a decision in favor of the application of the law of a state cannot be omitted even if the decision of the court remains unchanged after several legal systems to be considered. This case law was partially overturned by a judgment of the Federal Court of Justice on January 28, 1987.

For German courts, the principle iura novit curia applies , i.e. H. the court must be familiar with German law; this also applies to international treaties and uniform international law that is in force in Germany. If a German court has to apply foreign law, the judge is obliged according to § 293 ZPO to determine the foreign law (in free evidence ). In judicial practice, this is usually done through expert opinions.

For the revision , it has so far been the case that according to Section 545 (1) ZPO, it cannot be based on the violation of foreign law. As of September 1, 2009, the revision instance is no longer bound by the assessment by the last factual instance due to a change in § 545 ZPO. This has been in effect for a long time for labor law and voluntary jurisdiction (see Section 73 (1) ArbGG and Section 72 FamFG).

If the content of the foreign law cannot be determined, German law applies in the opinion of the Federal Court of Justice . The prevailing doctrine considers this to be unsuitable, since there are often large differences between German law and the law that cannot be determined (for example, the law of Iran or Haiti). Instead, the application of the likely content of the foreign law or the application of a law invoked by an auxiliary link is considered.

Recognition and Enforcement

Recognition of foreign decisions

EC law has priority of application: → Regulation (EC) No. 44/2001 (Brussels I)

In autonomous German law, no special procedure (so-called deliberation procedure ) is necessary for the recognition of a judgment . An exception applies according to § 107 FamFG for the recognition of decisions in matrimonial matters. A special procedure is also provided for adoptions under the Adoption Effectiveness Act. In the other cases, a judgment is always recognized if the requirements of Section 328 ZPO are met. These are:

  1. Jurisdiction of the first state : unwritten The prerequisite for any recognition is that the state has acted within the limits of its jurisdiction .
  2. Recognition competence (Section 328 (1) No. 1 ZPO): The decision can only be recognized if the foreign court would have been competent in the hypothetical application of the German rules of jurisdiction. This so-called indirect responsibility is therefore the mirror image of direct responsibility.
  3. Maintaining the rights of defense (Section 328 (1) No. 2 ZPO): If the defense rights were not adequately respected in the first state, this can only prevent recognition if the party concerned invokes them. According to the prevailing opinion, the requirement is designed as an objection .
  4. Opposing decisions (Section 328 (1) No. 3 ZPO): If there is a German judgment on the matter or if a process was already pending in another state responsible under German law at the beginning of the proceedings , the judgment cannot be recognized.
  5. Public policy reservation (Section 328, Paragraph 1, No. 4 of the Code of Civil Procedure): If fundamental judicial rights were violated in the specific proceedings or if fundamental principles of German procedural law were otherwise violated, the judgment cannot be recognized. Violations of the judgment against substantive public policy also prevent the judgment from being recognized. However, this does not result in a revision on the fund.
  6. Guarantee of reciprocity (Section 328, Paragraph 1, No. 5, Paragraph 2 of the Code of Civil Procedure): Except in matters relating to non-property law and in child-related matters, the decision can only be recognized if the sentencing state also recognizes German decisions. In the opinion of the Federal Court of Justice , it is sufficient if “essentially equivalent conditions apply”.

A recognized judgment cannot have any further effects in Germany than it would have in the country of judgment. However, it cannot have any effects that are unknown to German law (such as the Anglo-American principle of stare decisis ). The most important effect of a foreign judgment is its material legal force .

Declaration of enforceability of foreign titles

Application priority has EC law:

→ Regulation (EC) No. 44/2001 (Brussels I)
→ Regulation (EC) No. 805/2004 (Enforcement Order Regulation)

According to § 722 ZPO and § 110 FamFG, foreign judgments are not yet suitable as an enforcement title in Germany and as such cannot be enforced in Germany . A foreign judgment only becomes enforceable through a German enforcement judgment according to §§ 722, 723 ZPO or a decision according to § 110 FamFG. The declaration of enforceability is also called exequatur .

Only performance judgments can be the subject of exequatur proceedings. Foreign exequatur judgments cannot be the subject of a German enforcement judgment : double exequatur is prohibited (exequatur sur exequatur ne vaut). The fact that recognition judgments are issued abroad as performance judgments (such as the actio iudicati or the action upon the foreign judgment ) cannot change this .

The enforcement action is a cognitive procedure limited by Section 723 (1) ZPO . The jurisdiction results from § 722 Abs. 2 ZPO and the general places of jurisdiction of Articles 12 to 19 and 23 ZPO. These responsibilities are exclusive according to § 802 ZPO. According to the (disputed) view of the Federal Court of Justice , the local or regional courts are not competent in favor of the labor court if the underlying claim belongs to the labor courts under German law. According to Section 10 (3) AUG, the local courts are responsible for statutory maintenance claims.

Foreign judgments can only be enforced if they have already become legally binding. The foreign judgment may not be checked either legally or factually (Section 723 (1) ZPO); a revision au fond is not possible. However, it is necessary to be able to be recognized according to § 328 ZPO. The debtor, on the other hand, can take action against enforcement (Section 767 ZPO). However, he can only assert objections insofar as these are not analogously precluded according to Section 767 (2) ZPO .

foreclosure

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Avoidance of Creditors

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Amendment action

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Effects of denied recognition of judgment

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Bankruptcy law

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literature

Individual evidence

  1. ^ Haimo Schack: International Civil Procedure Law . 4th edition. CH Beck, Munich 2006, ISBN 3-406-54833-4 , Rn. 186-190.
  2. ^ Haimo Schack: International Civil Procedure Law . 4th edition. CH Beck, Munich 2006, ISBN 3-406-54833-4 , Rn. 234-241.
  3. ^ Haimo Schack: International Civil Procedure Law . 4th edition. CH Beck, Munich 2006, ISBN 3-406-54833-4 , Rn. 221 sq.