Postulation ability

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

In law, the ability to postulate is the ability to take legally effective actions before a court . These are subject to the following conditions

  • by a litigant in self-advocacy or
  • by a lawyer or another person authorized to represent (see below) on behalf of a party or
  • by a lawyer or another person authorized to represent (see below) in self-representation

performed.

In a so-called party process in accordance with Section 79 of the Code of Civil Procedure (ZPO) , every party capable of taking legal action has the ability to postulate, which means that they can conduct the legal dispute themselves. This is the case, for example, before the local court or the labor court ( Section 11 (1) sentence 1 Labor Court Act (ArbGG) in conjunction with Section 46 (2) sentence 1 ArbGG). In the specialized jurisdictions , the norms for postulation ability of the respective procedural rules apply (e.g. VwGO , FGO , SGG ). According to the tax court regulations, lawyers , tax advisors and auditors are authorized to represent them before the tax courts and the Federal Fiscal Court (Section 62 (2 ) FGO ).

Before a regional court , higher regional court or the Federal Court of Justice (BGH) , only a licensed lawyer has the ability to postulate. In this case one speaks of lawyer processes according to § 78 ZPO. For a long time there was a localization requirement for lawyers, which in civil matters only exists in principle before the BGH.

The following example makes the connection between party ability , process ability and postulation ability clear: A three-year-old is able to participate, but not process-capable. His parents are capable of litigation, but not capable of postulating before the regional court. Only lawyers are able to postulate there.

See also

Tortious liability , marriage ability , capacity , capacity to consent , legal capacity , legal capacity , culpability , testamentary capacity , process capability

literature

  • Bienwald: The substantively and legally authorized representative as the authorized representative of his client in the procedure for the appointment of a supervisor in accordance with § 1896 Paragraph 3 BGB; Nurse 2009, 290
  • Jens Meyer-Ladewig: ECHR European Convention on Human Rights, 3rd edition, Article 6 ECHR Paragraph 32: Access to a court in civil matters as a person concerned - ALSO WITHOUT A LAWYER - with references to: ECHR v. February 18, 1999, NJW 1999, 1173 No. 50 - Waite u. Kennedy / Germany; ECHR of April 20, 2006, 10180/04 No. 56 - Patrono u. a./Italy and ECHR v. April 6, 2010, 46194/06 No. 49f. - Stegarescu u. Bahrin / Portugal.