Contumac decision

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Kontumaz ( Latin contumacia = stubbornness , defiance, contumax ( adv. ) = Indomitable, stubborn) is in legal language the disobedience to a court summons or the violation of an obligation to be present. A contumac decision is therefore a court decision that is issued against a party who has not appeared ( in contumaciam ). However, it is not a means of regulation , but enables a matter-of-fact decision for procedural reasons even in the absence of a party.

The terms Kontumaz, Kontumaz decision, Kontumazgericht, Kontumazbescheid and similar are only rarely used in the German legal language, also in Austria and Liechtenstein . In Switzerland , the use of the term is declining, but still in use in the Swiss Criminal Procedure. For example, the judgment of the Swiss Federal Supreme Court of July 14, 2009 refers to the contumazial judgment of the criminal court of the Canton of Lucerne of February 13, 1998.

Germany

In civil proceedings, the court issues a contumazial ruling ( declaratio contumaciae ) if it convicts a party to the proceedings who did not appear at the oral hearing despite being properly summoned (the Contumax ) without further hearing on the matter in accordance with the application (contumacial proceedings). A default judgment is issued against the defaulting defendant, which is based on the actual oral submissions of the plaintiff as admitted ( § 331 ZPO). If, on the other hand, the plaintiff does not appear at the hearing, his complaint will be dismissed ( Section 330 ZPO). A default judgment is therefore issued under simplified conditions, in particular without taking evidence of disputed facts.

In the absence of the accused at the trial but a criminal judgment may be issued ( § 232 Code of Criminal Procedure ). Even if the defendant z. B. deliberately causes his incapacity to stand trial, this circumstance does not prevent the continuation of the main hearing ( Section 231a StPO). The prerequisites for a criminal judgment do not change, however, the principle in dubio pro reo remains decisive.

While litigation is an obligation in civil procedure law, nobody needs to contribute to their conviction in criminal proceedings ( nemo tenetur se ipsum accusare ). The presumption of innocence also applies .

Austria

Civil litigation

The Kontuma judgment is issued if the plaintiff or the defendant does not appear or negotiate in time for the hearing in civil proceedings. A default judgment is then issued (§§ 396 ff. ZPO), earlier called contumazieren or in contumaciam condemn called. The possibility was already contained in the General Judicial Order of 1781: " If a part of the agenda is missing, the person appearing should be judged in full faith and recognized about the fact, insofar as it does not exceed the subject of the complaint, even without evidence What is right. The party who was personally present then voluntarily wanted to see to the opponent for the absence, and to consent to the extension of the agenda. "

Criminal trial

The Austrian criminal procedure law also knows a procedure against absenteeism ("disobedience procedure", §§ 427, 428 StPO ).

Administrative law

An official decision issued in the absence of the person concerned was understood as a contumacial decision or a contumacial decision (out of date) .

Switzerland

Civil litigation

The Kontuma judgment is issued if the plaintiff or the defendant does not appear or negotiate in time for the hearing at the main hearing. The court then decides on the basis of the file, taking into account the current state of affairs and the dispute. If both parties fail to do so, the procedure is over and the court costs are shared (Art. 234 Swiss ZPO).

Criminal trial

In the 4th chapter of the 7th title of the Swiss Code of Criminal Procedure (Art. 366 ff. StPO) the procedure in the absence of the accused is regulated. A judgment in absentia is only possible within narrow limits. In the previous proceedings, the accused must have had sufficient opportunity to comment on the offenses that they are accused of. In addition, the evidence must allow a judgment without their presence.

Italy

In South Tyrol, according to the lawyer's code of honor, if the opposite side does not appear, the courtroom is only entered after the so-called contumazial hour has passed. In contrast to the provisions in Germany, the plaintiff's submissions are not faked as admitted and the suit is merely checked for conclusiveness. Rather, even in the absence of the opponent, those facts must be proven by the plaintiff that the court classifies as requiring evidence.

Web links

Individual evidence

  1. ↑ Swiss Federal Court, Court of Cassation in Criminal Matters 6B.82 / 2009
  2. ^ Meyers Großes Konversations-Lexikon, Volume 11. Leipzig 1907, pp. 447–448.
  3. ↑ Brockhaus' Kleines Konversations-Lexikon, fifth edition, volume 1. Leipzig 1911., p. 1003
  4. ↑ Act of August 1, 1895, on judicial proceedings in civil disputes (Code of Civil Procedure - ZPO)
  5. ^ Code of Criminal Procedure 1975 (StPO) Legal information system of the Federal Chancellery
  6. ↑ Helene Bachner-Foregger: Criminal Procedure Code - StPO 1975 with StPRÄG 2014 MANZ Verlag Vienna, 22., through. u. supplementary edition, 2015. ISBN 978-3-214-13090-9
  7. ↑ Swiss Code of Civil Procedure (ZPO) of December 19, 2008 (as of July 1, 2014)
  8. ↑ Swiss Code of Criminal Procedure (Criminal Procedure Code, StPO) of October 5, 2007 (as of January 1, 2015)