On the one hand, it regulates the possibility for a party to submit new means of attack and defense, i.e. new facts, evidence and defenses , in the appeal . On the other hand, it determines the prerequisites under which a party can change the subject matter of the legal dispute by amending the lawsuit , setting off or counterclaiming in appeal proceedings , in particular expanding it.
The civil procedure reform, which has been in force since January 1, 2002, has reorganized the Novenrecht of the German Code of Civil Procedure (ZPO). The determination of the facts now lies largely solely with the court of first instance . Basically, this establishes the facts conclusively and bindingly for the appellate body (cf. § 529 Paragraph 1 No. 1 HS 1 ZPO). However, the bond may exceptionally be omitted if the Court of Appeal accuracy or completeness of the first instance findings seriously doubted (see. § 529 para. 1 no. 1 HS 2 ZPO), or if a party may put forward in the second instance still new facts (see. Paragraph 1 No. 2 ZPO).
Whether and to what extent it is allowed to do this is governed by Sections 530 to 532 ZPO. According to this, new means of attack and defense are inadmissible if they have already been rightly rejected as late in the first instance ( preclusion , Section 531 (1) in conjunction with ZPO). Exceptionally, they can still be admitted if they concern an aspect which the court of first instance has recognizably overlooked or considered to be insignificant ( (2) No. 1 ZPO), if they were not asserted as a result of a procedural defect at first instance (Section 531 Paragraph 2 No. 2) or if their assertion was not made in the first instance without this being due to negligence on the part of one of the parties (Section 531 Paragraph 2 No. 3). Insofar as the opposing party does not dispute new facts, the court of appeal must, according to the prevailing opinion, also base its decision on them.
Change of action, set-off or counterclaim for the first time in the appellate instance are only permitted to a very limited extent according toZPO. First, either the opposing party must consent to this or the court must consider their approval to be pertinent. Second, the expansion of the dispute must concern facts on which the appellate court has to base its decision anyway according to § 529 ZPO. Therefore, no facts without reference to the previous statements of facts may become subject to litigation.
According to Sections 482, 496 of the Austrian Code of Civil Procedure , neither a new claim nor a new objection may be raised in the hearing before the court of appeal. Rather, the matter is to be referred back by the appellate court to the trial court of first instance for negotiation and judgment. The prohibition of renewal is a defining feature of the Austrian appeal proceedings.
As an exception, instead of rejection, the appellate court may supplement the hearing that was customary in the first instance and recognize by judgment in the matter itself if it cannot be assumed that this would delay the settlement or cause considerable additional costs compared to rejection. Facts and evidence that, according to the content of the judgment and the other trial files, did not appear in the first instance, may only be presented by the parties in the appeal proceedings to demonstrate or refute the grounds for appeal; In addition, such new submissions may only be taken into account if the opponent was notified beforehand by way of the appeal or the response to the appeal (Section 482 (2 ) ZPO ).
In Art. 229, the Swiss Code of Civil Procedure distinguishes between genuine and fake novas, depending on whether they were created or found after the exchange of correspondence was completed or after the last instruction negotiation (genuine novas) or existed before, but not before, despite reasonable care could be put forward (fake novas). For the first instance, this regulation represents a compromise between the strict contingency maxim - as according to the old ZPO of the Canton of Basel - and a generous Novenrecht - as for example according to the Lucerne ZPO. Art. 317 ZPO admissible if they are brought forward without delay and, despite reasonable care, could not be brought before the first instance.
- Sébastien Moret: Closing of files and novena law according to the Swiss Code of Civil Procedure. (= Zurich studies on procedural law. 177). Zurich 2014, ISBN 978-3-7255-7174-1 .
- Jung Hoo Oh: The subject matter of the second instance in civil proceedings in German legislative history since 1877. Freiburg , Univ.-Diss. 2003.
- Jürgen Brönnimann: The new Swiss ZPO - the ordinary procedure. In: Lawyers' Revue de l'Advocat AwR. 8/2008, p. 323ff.
- Law on the Reform of Civil Procedure (Civil Procedure Reform Act - ZPO-RG) of July 27, 2001 ( Federal Law Gazette I, p. 1887 )
- Law on the Reform of Civil Procedure of July 27, 2001 ( Federal Law Gazette I, p. 1887 ). Legal materials in the library of the Federal Court of Justice, accessed on March 19, 2016.
- Fucik: The prohibition of innovations in civil procedure law , ÖJZ 1992, 425
- Böhm: What does the ban on innovations mean? Background, function and influence on process behavior in the first instance. In: Festschrift 100 years ZPO (1998) 239
- Decisions of the Supreme Court on new facts or evidence
- Swiss Code of Civil Procedure (Code of Civil Procedure, ZPO) of December 19, 2008, as of July 1, 2014.
- Barbara Klett, Silvia Jenni: It still takes a generation of judges for the codified unity to prevail. Plea 1/2012.
- OGE 10/2012/19 of October 23, 2012 on Art. 272 and Art. 317 Paragraph 1 ZPO. Noven law in the appeal procedure when the principle of investigation applies