Litigation (law)
Process capability is the ability within a trial procedural acts (eg statements give off applications provide, appeal insert) itself or by self-appointed representatives to make or to have to make.
The process capability must be distinguished from the civil law capacity and the procedural terms Postulationsfähigkeit , party capability , process capability and negotiating capacity on the other.
Civil litigation
In civil proceedings, only those who are legally competent are generally capable of legal proceedings (cf. § 51 ff. ZPO ). The process incapacity can therefore also be omitted during a clear interval . Insofar as a supervisor or carer conducts the legal proceedings for a legally competent person, this person is also deemed to be incapable of litigation for the specific proceedings ( Section 53 ZPO).
Basically, parties are initially considered to be able to take legal action as long as the opposite is not proven. However, the court must initiate an ex officio investigation of the litigation capability if there are significant doubts about the litigation capability of the party.
Before taking any evidence on the question of litigation, the court must first hear the party personally. There is no obligation to be examined. However, a possible non-verifiability of the process capability is at the expense of the party concerned.
If the party takes legal action against the determination of their incapacity to take legal action, they are to be regarded as legally capable for this procedure.
Consequences of inability to litigate
If the court has proven the lack of legal capacity, the further course of action depends on whether the party incapable of legal proceedings is the plaintiff or the defendant and since when the legal capacity has existed.
If the inquest that the applicant is not competent to stand trial since the action was brought, the action (except in social court proceedings) is not permitted, as there is with the process capability of a procedural requirement is missing. However, the court must give the plaintiffs time to ensure a proper representation, and it one particular way of an order legal supervisor point . In social court proceedings, the plaintiff's incapacity to process leads to the appointment of a special representative , unless there is any other legal representation.
If, on the other hand, the defendant is incapable of litigation, proceedings against him cannot be initiated either. In the case of imminent danger, however, a court advisor ( Section 57 ZPO) must be appointed by the court at the request of the plaintiff to represent the defendant in the process.
If a party only loses legal capacity in the course of the proceedings, if the legal representative of the incapacitated person dies or if he is dismissed from his position, the court proceedings are interrupted until legal representation is (re) established and the legal representative sends this to the court ( Section 241 ZPO). This does not apply if the party concerned is represented by an attorney , but the court must suspend the proceedings upon application. ( § 246 ZPO)
Other processes
The regulations also apply to legal proceedings before the administrative court ( § 62 VwGO), social court , labor court , tax court .
In proceedings of voluntary jurisdiction under the Act on Matters of Voluntary Jurisdiction (e.g. probate proceedings ), the process capability is referred to as process capability . The same principle applies as mentioned above.
In any case, the person concerned is able to take legal action in care and placement proceedings ( Sections 275 and 316 FamFG ).
Delivery in the event of incapacity
Judicial service is to be made to the legal representative of the incapable of litigation the service to the incapable of litigation is ineffective ( § 170 ZPO). A period does not begin to run until the representative actually receives the document ( Section 178 ZPO). However, according to a ruling by the Federal Court of Justice, this does not apply to enforcement orders ; These can also be sent to those incapable of litigation, with the result that the objection period is set in motion. The court sees sufficient protection here through the possibility of an action for annulment , which in this case is also possible without prior appeal.
literature
- Bienwald: To represent the person cared for in court. BtPrax 2001, 150.
- Bork: The process capability according to the new law. MDR 1991, 97.
- Deinert: The judicial representation of those in custody. BtPrax 2001, 66.
- Deinert: Is it necessary for the supervisor to enter legal proceedings? BtPrax 2001, 146.
- Lube: The process ability of a troublemaker in the process. MDR 2009, 63.
Individual evidence
- ↑ BGH, judgment of February 4, 1969, A .: VI ZR 215/67
- ↑ BSG, judgment of May 5, 1993, Az .: 9 / 9a RVg 5/92
- ^ BGH, judgment of May 9, 1962, Az .: IV ZR 4/62
- ^ BGH, judgment of January 9, 1996, Az .: VI ZR 94/95
- ^ BGH, judgment of February 23, 1990, Az .: V ZR 188/88
- ^ BGH, judgment of November 9, 2010, Az .: VI ZR 249/09
- ^ BGH, judgment of March 19, 2008, Az .: VIII ZR 68/07
- ↑ BGH, judgment of January 15, 2014, Az .: VIII ZR 100/13
