Party ability

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In German civil procedure law, ability to be a party refers to the ability to be a party ( plaintiff or defendant ) in legal proceedings . According to Section 50, Paragraph 1 of the German Code of Civil Procedure ( ZPO ), anyone who has legal capacity is eligible. The applicable procedural law is based on the synchronization of legal capacity and litigation capacity . The capacity to be a party essentially corresponds to the legal capacity of civil law, but is further than this.

The ability to participate is to be distinguished from the process requirements

  • the process capability , that is, the ability to process actions themselves or effectively self-appointed representative or take forward;
  • the ability to postulate , that is, "the ability of a party capable of litigation to undertake the procedural acts themselves";

and from the question of justification,

  • the active legitimation of the passive legitimation : In civil proceedings, active legitimation , that is, the “correct” party, is who is the owner of the asserted right; the person is passively legitimized, that is, the "correct" defendant who is obliged to under the asserted law. With the exception of cases of litigation, this authority basically also corresponds to the authority to conduct proceedings.

Ability to be a party as a prerequisite for a factual judgment

The ability to stand as a party is a prerequisite for the admissibility of a lawsuit ( process requirement ), a factual judgment requirement . "If the parties argue [...] about the existence or ability of a party involved in the process or about the consequences of the extinction of a party or its ability to be a party, the existence or ability to be a party is to be faked as a litigation requirement".

Individual questions

Company within the meaning of § 17 HGB

The sole trader can sue and be sued under his company , § 17 HGB. However, the bearer of the rights and obligations and therefore the party is not the company, but the owner of the company.

Society under civil law

A society under civil law is - in the normal case of a foreign society - actively and passively capable of participating.

Unions

In labor court proceedings, trade unions and associations of employers as well as associations of such associations are eligible to participate ( Section 10 ArbGG ).

GmbH

resolution

The dissolution of a GmbH according to § 60 I No. 5 GmbHG does not in itself lead to the loss of its ability to be a party. Nor is the registration of the dissolution. It corresponds to a general legal principle that a dissolved legal entity is to be treated as continuing for the purpose of debt settlement and asset allocation. According to the more recent decision of the KG Berlin, Az .: 22 W 70/16, the GmbH dissolved according to § 60 I No. GmbH-G is not able to continue.

deletion

"The deletion of a non-assets GmbH according to § 394 Abs. 1 FamFG has the consequence that the society loses its legal capacity and thus according to § 50 Abs. 1 ZPO also its ability to be a party to a legal dispute. Only if there are indications that realizable assets are still available does the company remain legally and party-capable despite the deletion. In this context, worthless claims are not to be regarded as realizable assets. "

Minors

Underage children are also eligible to participate. But they lack process capability .

Parties by virtue of office

Parties powerful office (for example, insolvency administrator, executor (§§ 2212, 2213 BGB), administrators (§ 1984 BGB) and official receiver (§ 152 BMA)) lead to the prevailing official theory the processes as legal process state steward in its own name on foreign assets.

See also

literature

  • Burkhard Hess : Basic questions and developments in party ability . In: Zeitschrift für Zivilprocess (ZZP), 117th Vol., 2004, pp. 267-304.
  • Till Schemmann: Capacity to be a party in civil proceedings . Munich. 2001.
  • Gerhard Wagner: Basic problems of party ability . In: Zeitschrift für Zivilprocess (ZZP), 117th Vol., 2004, pp. 305–374.

Individual evidence

  1. Musielak / Weth , ZPO, 1999, § 50 Rn. 13
  2. Zöller / Vollkommer, ZPO, 21st edition 1999, § 50 Rn. 1
  3. BAG , judgment of September 25, 2003 - 8 AZR 446/02, NJOZ 2004, 4518 (4521)
  4. Zimmermann , Klage, 19th edition 2007, Rn. 52
  5. Schellhammer , Civil Procedure Law, 10th ed. 2003, Rn. 1202
  6. ^ BGH , judgment of January 29, 2001, DB 2001, 423 (424).
  7. BAG, judgment of June 24, 2004 - 2 AZR 216/03 - NZA 2006, 696 Os. = NJOZ 2006, 2243 (2246)
  8. Zöller / Vollkommer, ZPO, 21st edition [1999], § 50 Rn. 25th
  9. BAG, judgment of December 1, 2004 - 5 AZR 597/03 - NZA 2005, 318 mwN
  10. BAG, judgment of May 16, 2002 - 2 AZR 730/00 - NZA 2003, 217 (218)
  11. BGH, judgment of May 20, 2015 - VII ZB 53/13 - juris Ls. = NJW 2015, 2424 = JA 2015, 944 (H. Schmidt)
  12. Knöringer, Assessorklausur, 6th edition [1996], § 1 4 a, p. 4