Orality principle
The principle of orality , together with the principle of public disclosure and the principle of immediacy , are fundamental procedural maxims in German court proceedings .
Germany
history
While the principle of written form prevailed in the Prussian filing process and only written information was allowed to be taken into account in reaching a judgment ( quod non legitur, non creditur or quod non est in actis, non est in mundo ), under the influence of the Napoleonic Code de procédure civile of 1806 with the entry into force of Reichsjustizgesetze 1879 introduced the court hearing in oral form, that is, through the oral presentation of the parties to the trial court. 1924 as part of the so-called. Was Emminger novellas reference to proposals and briefs possible.
specification
The requirement of an oral hearing is stipulated for certain types of proceedings by Article 6, Paragraph 1, Sentence 1 of the ECHR . Thereafter, an oral hearing must take place at some point between the start of such proceedings and their legal force .
implementation
Most procedural rules expressly prescribe the principle of oral practice, such as Section 128 (1) ZPO , Section 33 (1) StPO or Section 101 (1) VwGO . In the interests of process economy , however, with the consent of the parties, decisions may exceptionally be made without an oral hearing, e.g. B. in civil proceedings according to Section 128 (2) ZPO and in the event of a decision by court order . In criminal proceedings , in particular, the penalty order can lead to a decision without an oral hearing. A communication in criminal proceedings , on the other hand, is only permitted in the main hearing .
Further consequences
Although this is not expressly regulated by law, a hearing or speech-impaired judge or lay judge in criminal proceedings is usually not able to take part in negotiations. This follows from the principle of orality that dominates the main hearing, which presupposes the ability to perceive what has been spoken acoustically and to express oneself orally in the course of the main hearing, which is characterized by speech and counter-speech. The court may not be properly staffed, which is an absolute reason for a review ( Section 338 No. 1 StPO).
Austria
With regard to the procedural principle anchored in Section 176 of the German Code of Civil Procedure (ZPO ) of the oral hearing before the court making the decision - unless there is a special standard (e.g. Sections 399, 442 of the Code of Civil Procedure) - submissions contained in pleadings can only be taken into account if the hearing was presented orally.
literature
- Hans Gerhard Kip: The so-called oral principle , 1952
- Peter Arens : Oral principle and process acceleration in civil proceedings , 1971
Individual evidence
- ↑ Helmut Rüßmann : Introduction to Law / Procedure and Procedural Principles 1994
- ↑ Uwe Wesel : Law in France: The five books of Bonaparte's Die Zeit , February 18, 2010
- ↑ Dieter Laum: The 175-year-old court. Article on the history of the Cologne Higher Regional Court in 1994
- ↑ Ordinance on the Procedure in Civil Litigation of February 13, 1924 (RGBl. I 135ff.)
- ↑ Jung Hoo Oh: The material of the second instance in civil proceedings in the history of German legislation since 1877 ( Memento of the original from July 14, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Freiburg , Univ.-Diss. 2003, p. 81 ff.
- ^ Judgment of the European Court of Human Rights (ECHR) of April 5, 2016, complaint no. 33060/10, in the case of Blum v Austria, NJW 2017, 2455
- ↑ BGHSt 4, 191, 193
- ↑ BGH, judgment of January 26, 2011 - 2 StR 338/10
- ↑ OGH in consistent case law, last decision of January 31, 2013 - reference number 1Ob149 / 12m
