Litigation
Litigation is the authority to conduct a lawsuit on someone else's right in one's own name .
civil right
In German civil procedural law , a distinction is made between legal and voluntary litigation.
Legal litigation
The legal process standing is based on a legal regulation that authorizes a certain person to assert another right in their own name. The most important cases are:
- litigation by a party by virtue of office , e.g. the insolvency administrator ( Section 80 (1) InsO ),
- litigation by virtue of legal authorization. This exists, for example, with regard to married parents who live separately in relation to the maintenance of the underage children who live with them ( Section 1629 (3 ) BGB ), which is intended to prevent the underage child from participating as a party in the parents' legal dispute and is represented by one parent against the other parent. Another example can be found in the matrimonial property law in § 1368 BGB in the case of a spouse disposing of his property without the consent of the other spouse,
- litigation based on the legal authorization of procedural law. Main Event: The previous holder leads the commenced litigation continued when one during this process thing sold or has a right ceded has ( § 265 ZPO ).
- the legal status of litigation in inheritance law in the case of a claim belonging to the estate according to § 2039 sentence 1 BGB. An heir can process this claim alone. The legal consequence of the performance of the claim is only to be provided jointly to all heirs. The heirs can also only jointly demand the performance.
Approved litigation standing
A voluntary litigation status exists if the litigation authority is transferred from the legal entity to the party to the process through a legal transaction . This requires an effective authorization by the legal entity and the litigator's own, worthy of protection interest in the assertion in his own name. It is a matter of dispute whether the substantive transferability (assignability) of the law enforced is necessary.
Another prerequisite is that the opposing party is not unreasonably impaired by the litigation standing. The latter can be the case, for example, if a person with no assets asserts the rights of another, because if the person wins, the opposing party can only claim reimbursement of costs against the person without assets and may suffer significant financial disadvantages due to the foreseeable failure of the foreclosure .
In the process, the litigation status must always be disclosed and it must be made clear which rights are being asserted, unless it is clear to all those involved which right is being sued.
Public law
Litigation is of particular importance in German constitutional law in proceedings before the Federal Constitutional Court :
In organ dispute proceedings , a parliamentary group can assert rights of the Bundestag by way of litigation. An individual member of the Bundestag, on the other hand, is not considered part of the Bundestag in this context according to the case law of the Federal Constitutional Court and thus cannot assert any rights of the Bundestag in litigation.
In the federal-state dispute within the meaning of Art. 93 1 no. 3, para. GG are to § 68 BVerfGG the rights of the federal by the federal government and the rights of a state by the respective state government perceived representative action.
Differentiation from representation
In the case of representation , the representative asserts the rights of the plaintiff on behalf of the plaintiff, whereas in the case of litigation, the plaintiff asserts the rights of a third party in his own name.
Individual evidence
- ↑ Weth, in: Musielak / Voit, ZPO, 15th edition 2018, § 51 ZPO Rn. 26 ff.
- ↑ Weth, in: Musielak / Voit, ZPO, 15th edition 2018, § 51 ZPO Rn. 30th
- ↑ Hübsch, in: BeckOK ZPO, Vorwerk / Wolf, 28th edition, as of March 1, 2018, § 51 ZPO margin no. 51
- ↑ Hübsch, in: BeckOK ZPO, Vorwerk / Wolf, 28th edition, as of March 1, 2018, § 51 ZPO margin no. 52
