legal action

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In civil proceedings, the action is the initiation of proceedings, i.e. the application for a court decision, by the plaintiff against the defendant . Also in the proceedings before the administrative , social , labor and finance courts , the application for a court decision that initiates the proceedings is referred to as a lawsuit. In criminal proceedings , the public complaint to be brought before a court by the public prosecutor is also called an indictment . According to Section 113 (5) No. 2 FamFG , a lawsuit in family matters and in voluntary jurisdiction is called an application .

Germany

The action is brought by a written statement to the court (in the proceedings before the local court also for the record of the clerk of the office ) and its delivery to the defendant ( § 253 Abs. 1 ZPO ). Instead of a lawsuit, an application for judicial dunning proceedings or an application for interim legal protection can be filed . Furthermore, a lawsuit can be brought by the plaintiff filing an application for legal aid and at the same time filing a complaint with the court.

The application must be submitted in multiple copies (usually three copies) to the court. One issue is for the court record. In addition, the other copies will be served on the defendant and his legal representative.

Compulsory lawyer

You can litigate at the district court without a lawyer (except for certain family matters). Possibly. A judicial officer of the legal application office of the local court helps with the formulation of the complaint - and also with letters in the course of the procedure such as the response to the complaint - free of charge.

Only a lawyer can file a complaint with the regional court and higher-ranking courts , Section 78 (1) ZPO . Both parties have to be represented by lawyers. If you don't have a lawyer, you can lose the process for that alone.

Content of the application according to § 253 ZPO in connection with § 130 ZPO

Must regulations:

  • Designation of the parties;
  • Designation of the locally and materially competent court;
  • Indication of the subject of the dispute (cause of action and claim );
  • personal signature of the plaintiff or legal representative.

The department of the competent court does not have to be named, unless it is to be heard before the Chamber for Commercial Matters of the Regional Court ( Section 96 (1) GVG ).

The assignment of the lawsuit to the respective departments is a matter for the mail distribution point of the court and is based on the respective business distribution plan .

How exactly the plea must be set out in the application is disputed. It is argued that the subject of the dispute must be customizable, and that the claim must be substantiated. In any case, the plaintiff's submissions are not required to be conclusive for the admissibility of the action .

Target regulations:

  • Information about the value of the subject of the dispute for the purpose of determining the factual jurisdiction § 253 ;
  • Declaration on the composition of the court § 253 (in practice dispensable, since in contrast to the previously applicable legal situation the single judge is ipso iure responsible);
  • Motions which the plaintiff intends to make at the meeting;
  • Designation of evidence Section 130

It is advisable for the plaintiff to present the facts on which his claim is based in the application and not only in the oral hearing and, if possible, to name the evidence , because the court, if the delay in submission would result in a delay in the proceedings and the Delay is due to gross negligence on the part of the plaintiff, who can reject the corresponding means of attack or defense (preclusion). A preclusion does not affect the admissibility of the action. The plaintiff runs the risk that his claim will be dismissed as unfounded. If the action is inconclusive in the application , if the defendant is in default , even if the claimant makes the action conclusively by further factual submissions at the hearing, there is a ground for a default judgment .

An application to issue a default judgment in the event that the defendant fails to report readiness for defense is recommended to be made in the application. Requests for the obligation to bear the costs and the provision of security due to provisional enforceability are not required because the court recognizes this ex officio in the course of the proceedings ( rejection , settlement , judgment ) .

From a legal point of view, legal explanations are not required in the application because it is the task of the court to draw the relevant legal conclusions from the facts presented and therefore does not have to be instructed by the parties or their legal representatives (" iura novit curia "; lat . "The court knows the law"). In practice, legal statements in the application are still the rule, depending on the facts of the case.

The formal requirement of § 92 SGG applies to actions in social law .

Conditions of action

The lawsuit pending before the court will only be served if the German jurisdiction is called upon to make a decision. In addition, the application must be written in the language of the court (= German, sometimes also Sorbian ). In particular, the plaintiff has to make an advance payment for the court costs . If a conciliation negotiation before an arbitrator or justice of the peace is mandatory, proof of its implementation must be provided as a delivery requirement. If the court in the first instance does not have substantive jurisdiction, if the statement of claim suffers from deficiencies in submission such as a missing signature or the ability to postulate , the pending claim will also not be served on the defendant.

Austria

In Austria - in the sense of the cursory rough overview of the German legal situation given above - the situation is similar. Here, too, the lawsuit is the procedural brief in the "classic" civil process - i.e. the first brief with which, above all, the subject matter of dispute and the Parties to the proceedings are determined and with which the plaintiff (initially to the court) announces what he is requesting from the defendant for what reason (e.g. shortened: payment of € 400.00 because the defendant caused causal, unlawful and culpable damage to the plaintiff in this amount). In the court file - regarding this procedure - the lawsuit has the ON (serial number) 1.

The norm in which the lawsuit is directly regulated is § 226 ZPO, but other norms are also of central importance for the lawsuit.

See also

Web links

Wiktionary: Klage  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Civil litigation: compulsory lawyer and legal application office. In: Justice portal North Rhine-Westphalia. Retrieved July 11, 2020 .