Litigation

from Wikipedia, the free encyclopedia

Process action (also procedural action ) is not uniformly defined. A functional process action concept is dominant. According to this, process actions are understood to mean actions that are aimed at the design or determination of the process flow, or actions whose "effects resulting from the action are essentially in the procedural area".

These can be actions by the parties, the court or third parties (e.g. a subsidiary intervener ). When the ZPO speaks of a process , it usually refers to the process of a party. Accordingly, the main meaning of process action is the “process action of a party” ( party process action ). In the following, only such party litigation actions are meant.

term

Delimitations

  • Declaration of intent (general): A process action declaration must be distinguished from a declaration of intent. Declarations of intent, on the other hand, aim to bring about success in substantive law .
  • substantive design shops (formative declarations): Substantive design operations (for example: offset declaration ; of avoidance ) are not to process actions that they will be explained by the process. They will only do this if they are asserted in the process.
  • Litigation comparison : The litigation comparison belongs to both substantive law and procedural law and in this respect has a “real dual nature”.
  • official procedural acts : An official procedural act is in an administrative procedure carried out, not in a court case.

Classifications

Process actions are to be classified on the one hand according to their procedural effect:

  • Effective actions have an immediate effect (e.g. withdrawal of the actionbefore the start of the oral hearing § 269 Paragraph 1 ZPO or the consent of the defendant to withdraw the action, acknowledgment of § 307 ZPO or filing an appeal or revision ).
  • Acquisition acts are procedural acts that are intended to bring about a court decision and therefore do not have a direct effect on the process, but only indirectly through the decision of the court (e.g. applications, means of attack and defense according to § 282 ZPO , withdrawal of the action after the start of the oral hearing ).

The conceptual distinction serves to make different requirements clear: In the case of effective acts, the question is asked about effectiveness , while in the case of effective acts, on the other hand, the question is about admissibility and justification.

Applications can in turn be subdivided into process and material applications:

  • In the case of substantive motions , the parties want to influence the substantive content of the decision (e.g. complaint )
  • Litigation requests only concern the design of the procedure as a process (e.g. request for evidence )

In addition, a distinction can be made between unilateral and bilateral process actions: Process actions are usually unilateral, but there are also bilateral process actions such as process comparison. In this constellation, the procedural actions are not only purely procedural, but are also aimed at the conclusion of a "litigation contract", i.e. declarations of intent .

effectiveness

Process action requirements

An effective procedural act presupposes that the person of the acting person fulfills certain prerequisites, that is party ability , litigation ability and postulation ability , in the case of representation also the power of representation .

No (effective) revocation

Process actions are irrelevant if they are effectively revoked. The revocation of a process action is only permitted to a limited extent: In the case of directly effective action, a revocation is generally not permitted. In the case of acquisition acts only effective through a court decision, a revocation is only permissible until the court decision has been made (analogous to Section 130 BGB).

shape

Actions that can be submitted outside of the oral hearing must be in writing or electronically . Oral speech is required for some procedural acts, i. i.e., they have to be explained at the hearing. For example, substantive requests (see above) must be announced in writing and then submitted during the oral hearing (in practice usually by referring to the written submissions).

Lack of will

A distinction must be made between unilateral litigation and litigation contracts.

Unilateral litigation:

  • Exclusion of contestability
In the case of a lack of will, a contestation of unilateral declarations of action is not permitted.

“The procedural law does not contain any provisions corresponding to §§ 119 ff. BGB for procedural acts. An analogous application of the rules of avoidance applicable to private law declarations of intent is forbidden because the procedural law aims to protect the procedural situation largely from uncertainty and therefore only allows a revocation of procedural acts - namely those that have a significant effect on the termination of the proceedings - only in exceptional cases (see below II). These are special rules that may not be extended beyond their immediate area of ​​application (BGH Betrieb 1977, 628) and also exclude the addition of civil-legal avoidance regulations. This view - for procedural acts in general - has been taken by the Federal Court of Justice earlier (BGHZ 12, 224, 225). It corresponds - especially with regard to procedural recognition - to the prevailing legal opinion that has been consolidated for decades. "

  • Alternatives:
Instead of a challenge, they can be considered
    • the withdrawal or change of the procedural act, as provided by law and does not conflict with the interests of the other party worthy of protection;
    • the correction, addition, revocation of acts of acquisition (see above) if the opponent has not yet achieved a position worthy of protection;
    • the revocation if there are reasons for restitution.

In the case of litigation contracts, on the other hand, the provisions on avoidance apply accordingly.

Hostility to conditions

It is forbidden to make litigation dependent on extra-procedural conditions. [Only] in this sense, procedural acts are hostile to conditions .

Process acts, insofar as they are effective acts (see above), may in principle be made dependent on an internal procedural condition. “An intra-procedural condition refers to an event, about the occurrence or non-occurrence of which the further course of the procedure provides certainty.” Thus auxiliary requests or an auxiliary offset are permissible.

"Litigation that has a direct impact on the procedural situation, on the other hand, in the interests of legal certainty cannot be placed under an intra-procedural condition." A conditional filing or withdrawal of a complaint or a conditional filing or withdrawal of an appeal is not permitted.

interpretation

Process actions also sometimes require interpretation and can be interpreted (are "capable of being interpreted" and "may need to be interpreted"). In principle, the interpretation rules of substantive law (the BGB) apply accordingly.

Since it is mostly about unilateral procedural acts, the corresponding application of § 133 BGB is in the foreground.

"For the interpretation [...] it is not the inner will of the person explaining that is decisive, but the objective meaning of the explanation."

“The interpretation must not adhere to the wording of the declaration. The decisive objective explanatory value is determined by how the recipient must understand the declaration according to the circumstances, in particular the properly understood interests. "

Example:

“The interpretation as to whether an appeal has been filed is based solely on the objective explanatory value as it was recognizable to the appellate court within the period of appeal; later clarifying party declarations cannot be taken into account. "

The focus is not only on the designation, but also on the recognizable will of the declaring party resulting from the application and / or justification.

"Rather, procedural motions are to be interpreted in such a way that a request of an applicant or appellant comes into play as far as possible [...]. Accordingly, everything that is seriously considered in the circumstances of the case is to be regarded as applied for. "

However, a clear explanation must not be given the meaning that best serves the person making the explanation. The legitimate interests of the opponent must also be taken into account.

"The interpretation must also be based on the principle that in case of doubt, what is reasonable according to the standards of the legal system and what is properly understood interests is wanted."

reinterpretation

Section 140 of the German Civil Code (BGB) applies accordingly to procedural acts.

"In procedural law, too, the principle applies in accordance with Section 140 BGB that an incorrect procedural act is to be reinterpreted into a permissible and effective one if its requirements are met, the reinterpretation corresponds to the presumed will of the party and there is no conflicting interests of the opponent worthy of protection.

Example: An inadmissible, limited-time appeal can [under certain circumstances] be reinterpreted as a cross-appeal.

"The reinterpretation of one procedural act into another presupposes [...] that it is ineffective as such [...], while the requirements for the effectiveness of another procedural act serving the same purpose are met."

Individual evidence

  1. ↑ So Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 59 mwN
  2. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 14th
  3. ↑ Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 59.
  4. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 14th
  5. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 14; Exception in Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 58.
  6. ↑ So Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 58.
  7. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 14 mwN
  8. ↑ Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 60.
  9. ↑ Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 61.
  10. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 16.
  11. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 18th
  12. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 20th
  13. ↑ BGH, judgment of May 27, 1981 - IVb ZR 589/80 -, juris Rn. 9 = BGHZ 80, 389 = NJW 1981, 2193.
  14. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 22-24.
  15. ↑ Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 66.
  16. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 20th
  17. ↑ Musielak / Voit, ZPO, 12th edition 2015, inlet marginal no. 61.
  18. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 20th
  19. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 20th
  20. ↑ BGH, decision of February 7, 1979 - IV ZB 58/78 -, juris Rn. 4 = VersR 1979, 374.
  21. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 25th
  22. ↑ BGH, judgment of March 10, 1994 - IX ZR 152/93 -, juris Rn. 15 = NJW 1994, 1537 = MDR 1994, 1240.
  23. ↑ BVerwG, decision of December 3, 1998 - 1 B 110/98 -, juris Rn. 8 = NVwZ 1999, 405.
  24. ^ BGH, decision of March 7, 2012 - XII ZB 421/11 -, juris Ls. = MDR 2012, 731 = NJW-RR 2012, 962.
  25. ↑ See for example BVerwG, decision of December 3, 1998 - 1 B 110/98 -, juris Rn. 9 = NVwZ 1999, 405.
  26. ↑ See BGH, decision of September 26, 2007 - XII ZB 80/07 - juris Rn. 13 = MDR 2008, 98.
  27. ↑ Regional Social Court for the State of North Rhine-Westphalia, decision of December 3, 2015 - L 7 AS 2005/15 B ER, L 7 AS 2006/15 B -, juris Rn. 17th
  28. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 25 mwN
  29. ↑ BGH, judgment of March 10, 1994 - IX ZR 152/93 -, juris Rn. 12 mwN = NJW 1994, 1537 = MDR 1994, 1240.
  30. ↑ Greger in: Zöller, Zivilprozessordnung, 31st edition. 2016, preliminary remarks on §§ 128-252 Rn. 25th
  31. ↑ BAG of December 8, 2011 - 6 AZR 452/10 - juris Rn. 16 mwN = NZA-RR 2012, 273 = AP No. 7 to Section 11 TVÜ.
  32. ↑ BGH, decision of September 26, 2007 - XII ZB 80/07 - juris Rn. 17 = MDR 2008, 98.