Side intervention
Secondary intervention , also known as intervention , occurs when someone takes part in another civil process in their own name because of their own legal interest without being a party themselves. The intervener (= intervener) joins one of the two parties in the process in order to support them. The intervention of the intervener on the side of one of the parties to the dispute is often prompted by a third party notice from the main party.
The secondary intervener is to be distinguished from the comrade in dispute and the main intervener , since they themselves become parties. Anyone who joins the public prosecutor's office in criminal proceedings is not referred to as an intervener but as a joint plaintiff .
Effect of the side intervention
Authority
The intervener has the power to assert all means of attack and defense and to undertake all procedural acts to which the main party is entitled in order to assist the main party in its own legal interest ( Section 67 ZPO ). The intervener can e.g. B. dispute allegations of the other party, assert legal obstructive and destructive objections and legal obstructive objections , present evidence or prevent a default by the main party. The intervener cannot, however, dispose of the subject-matter of the dispute by offsetting , withdrawing or amending the claim , or expressing a waiver or acknowledgment .
The means of attack and defense must not contradict the declarations and actions of the main party.
The side intervention as the involvement of third parties in the legal dispute must be strictly distinguished from the dispute union. Since the intervener is not a party, he can be heard as a witness .
Binding effect
The secondary intervention creates a binding effect for the court, which has to recognize a dispute between the intervener and the main party, which the intervener had joined in the preliminary proceedings. The effect of the intervention does not extend to the relationship between the intervener and the other party.
The binding effect extends to the court decision in the preliminary process and the legal and factual findings on which the decision is based ( Section 68 ZPO ). In that regard, the intervention effect passes so than the effect of res judicata , which only in the tenor (includes decision taken by the Court itself § 322 1 para. ZPO ). On the other hand, unlike the legal force effect, the intervention effect does not exclude the objection of inadequate litigation. The binding to the determinations in the preliminary proceedings are restricted to the extent that the intervener was prevented from asserting a means of attack and defense ( Section 68 2nd HS ZPO).
Example: The building contractor U has committed himself to the building owner B to build a house. U does not build the roof structure himself, but has it built by carpenter Z as a subcontractor. B now claims that the roof structure is not sufficiently stable and is suing U for the defect to be remedied. If U is convicted, he can, on the basis of the contract for work with Z, assert claims against Z due to defects in the roof structure for which Z is responsible. Z therefore has an interest in U winning the process, so that it does not come to that it is claimed by U himself. He can therefore join the U as a secondary intervener and submit that he has observed all the rules of his trade and that there is no defect. If the court had convicted the building contractor U in the first trial because, in his opinion, the roof truss was defective, then this also applies to carpenter Z in the subsequent trial. The court in the subsequent proceedings cannot now again raise evidence of the deficiency of the roof truss; assume that the roof structure was defective.
Unlike the legal force, the side intervention only works in favor of the main party.
If in the main process between the client B and the building contractor U it is established that B does not have a claim against U due to a defect in the roof structure and U nevertheless sues Z because of a defect-related claim, the court that settles the dispute between Z and U the decision was not tied to the findings of the court in the preliminary proceedings.
requirements
According to Section 66 ZPO, the intervener must have his own legal interest in ensuring that the party he joins wins the legal dispute. The legal interest is in legal force extension of the judgment to intervene in representative action in concern of a recourse or in the case of accessory securing means recognized.
The side intervention can take place in any stage of the proceedings between the parties until the final decision has been reached. As a result of his involvement, the intervener is also able to assert means of attack and defense in the legal dispute between the parties. It can even effectively process acts make as long as they are not inconsistent with the statements and actions of the main party (which he joined), and also appeal insert. The intervener acts in his own name and therefore does not become a party himself during the legal dispute.
The joining of the intervener on the side of one of the parties to the legal dispute can take place of its own accord. Frequently, however, the accession is initiated by a litigant announcing the dispute to the later intervener beforehand . In contrast to the civil procedure codes of other countries, German procedural law does not recognize any forced (automatically brought about by the third-party notice ) side intervention, such as exists in the Netherlands , for example ( gedwongen tussenkomst ). In the event of a refusal to join the dispute, however, Section 74 (3) ZPO orders that the effects of the secondary intervention according to Section 68 ZPO occur.
costs
The cost consequences of a secondary intervention are regulated in Section 101 (1) of the ZPO. Accordingly, the opponent of the main party, insofar as he is obliged to bear the costs, also bears the costs caused by the secondary intervention, i.e. primarily also the legal fees of the secondary intervener. If the opponent of the main party wins, the intervener bears his own costs. It is therefore not intended to impose the costs of the legal dispute on the intervener.
