Withdrawal of action

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In judicial proceedings, the withdrawal of the action represents the plaintiff's declaration that he is declining to continue the process. The withdrawal of the action is thus the counterpart to the filing of a lawsuit . There are regulations on the withdrawal of a complaint in all procedural rules.

civil right

In civil procedure law , the withdrawal of the action is regulated in § 269 ZPO. However, §269 ZPO does not include the special case that the action was withdrawn before service ( lis pendens ) and at the same time there is no settling event, such as in the case of an error or a complaint filed twice.

No waiver of rights

If the plaintiff withdraws the complaint, however, he does not comment on the existence of the right asserted with the complaint. In particular, this does not indicate that the plaintiff is of the opinion that the right asserted in the action does not exist. By withdrawing the action, he merely expresses that he is withdrawing his request for legal protection from the court. After a withdrawal of the action, the plaintiff is therefore not prevented from asserting the initially asserted right in a new legal procedure. This is the difference to the material waiver of action .

Reasons to withdraw the action

The plaintiff can have various reasons for withdrawing the action. For example, if he only learns during the trial that the defendant has no assets, he may see that it makes no sense to sue for a bad debt. It is also possible that the plaintiff realizes during the process that his legal position will not be successful in court or that he will not be able to prove the facts on which the claim is based . It can also make sense to withdraw a lawsuit after pending but before lis pendens if the cause of action no longer applies, e.g. B. through performance or interim omission of the defendant. The reason for a withdrawal of the action can also be that the defendant had filed for bankruptcy before the lis pendens and the action is therefore inadmissible. Legal prosecution can be taken up again in insolvency proceedings despite the withdrawal of the action .

Time of withdrawal

The German legislator takes into account the plaintiff's interest in withdrawing his complaint by making it possible in principle to withdraw his complaint. The possibility of withdrawing an action is regulated in Section 269 of the Code of Civil Procedure (ZPO). It is up to the entry of legal force of the judgment possible, so even in the appeal . The complaint can only be withdrawn by the plaintiff up to the start of the oral hearing on the main issue without the consent of the defendant. If the defendant has already heard the main issue orally, the plaintiff can only withdraw the action with the consent of the defendant. This can namely have an interest in the court determining whether the plaintiff's claim is justified or not.

Consent of the defendant

The withdrawal and, if applicable, the consent of the defendant must be declared to the court (Section 269 (2) sentence 1 ZPO). The withdrawal can be declared by an oral declaration in the oral hearing or by submitting a written statement to the court (Section 269 (2) sentence 2 ZPO). The brief must be served on the defendant if his consent is required for the withdrawal of the action to be effective (Section 269 (2) sentence 3 ZPO). The defendant can then object to the withdrawal within an emergency period of two weeks from the delivery of the brief. If he does not do this, his consent is deemed to have been given if he has been informed of this consequence beforehand (Section 269 (2) sentence 4 ZPO). If the action is withdrawn, the legal dispute is to be regarded as not pending . The defendant is therefore not protected from a new lawsuit. A judgment that has already been issued but has not yet become final will be ineffective without having to be expressly repealed (Section 269 (3) sentence 1 of the ZPO).

Bearing costs

The plaintiff has to bear the costs of the legal dispute (reduced 1.0 court fee according to No. 1211 number 1 of the cost list of the Court Fees Act (KV-GKG) instead of the 3.0 fee otherwise due according to No. 1210 KV-GKG), unless already legally recognized about them or the costs are to be imposed on the defendant for another reason, d. H. A discretionary provision has been implemented by the legislature via Section 269, Paragraph 3, Sentence 2 of the Code of Civil Procedure in order to be able to cope with special cases.

The favorable cost implications, however, require that the action is withdrawn before the end of the oral hearing, cf. Section 1a to no. 1200 KV-GKG. The occasion, however, the claim was filed before pendens no longer exist and the application is withdrawn then, to bear the costs determined in consideration of the current facts and the dispute in its reasonable discretion; this also applies if the action was not served (Section 269 (3) sentence 3 ZPO).

Upon application, the court decides on the obligation to bear the costs by way of an order (Section 269 (4) ZPO). An immediate complaint against the decision (§ 567 ZPO) takes place if the value in dispute of the main matter exceeds 600 € (§ 511 ZPO) (§ 269 Abs. 5 S. 1 ZPO). The complaint is inadmissible if a legal remedy is no longer admissible against the decision on the application to determine the costs according to Section 104 ZPO (Section 269 (5) sentence 2 ZPO). If the action is brought again, the defendant can refuse to admit until the costs have been reimbursed (Section 269 (6) ZPO)

Administrative law

The plaintiff can according to § 92 Abs. 1 VwGO withdraw his action until the judgment becomes final. As a rule, however, a legal task is associated with this, since an administrative act attacked by the lawsuit regularly becomes final when the action is withdrawn .

A special case is the withdrawal of the action in the context of a settlement , in which the authority guarantees that the action will be completely or partially suspended against the previous withdrawal. The plaintiff thus achieves his objective goal without any further risks and in a relatively short time, but bears the costs of the proceedings. Since there is no longer a controversial decision of the court in the event of a withdrawal, the court costs are reduced to 1.0 court fees; Since the authority is usually not represented by a lawyer, there are no reimbursable opposing legal fees for the plaintiff.

According to Section 92 (2) VwGO, a lawsuit is also deemed withdrawn if the plaintiff does not pursue the proceedings for more than two months despite a request from the court, i.e. in particular does not participate in the progress of the proceedings. The effects of the fictitious withdrawal of the action correspond to the effects of the expressly declared withdrawal of the action and can therefore lead to a loss of rights for the plaintiff, even if he would otherwise have won the action.

Criminal trial

In criminal procedure law , the regulations on the withdrawal of the indictment can be found in Section 156 of the Code of Criminal Procedure.

Withdrawal of charges

Withdrawal of an indictment is only possible until the opening order or the decision to refuse to open main proceedings has been made. It can be declared by the public prosecutor's office both with the aim of terminating the proceedings and of bringing the charges again at a later point in time before the same or another court.

In the criminal warrant procedure, the action can be withdrawn until the decision on the issuance of the penalty warrant, then again only after an objection by the accused.

Legal consequences

After the indictment has been withdrawn, the proceedings are again at the preliminary stage . If this is discontinued, however, the necessary expenses of the accused must be reimbursed by the state treasury in accordance with Section 467a of the Code of Criminal Procedure - in contrast to the other cost regulation in the case of a discontinuation in the preliminary investigation.

Individual evidence

  1. ^ [1] , OLG Munich · Decision of June 25, 2009 · Az. 7 W 1671/09