The restitution action in German civil proceedings is a subtype of the retrial action , another subtype is the nullity action . The purpose of the reopening is to eliminate a final judgment and bring about a new decision.
The restitution suit takes place according to ZPO :
- if the opponent is guilty of an intentional or negligent breach of the oath by swearing a statement on which the judgment is based ;
- if a document on which the judgment is based was wrongly drawn up or falsified ;
- if, in the case of a testimony or expert opinion on which the judgment is based, the witness or expert is guilty of a criminal breach of the duty of truth;
- if the judgment was obtained from the representative of the party or from the opponent or his representative through a criminal offense committed in relation to the dispute ;
- if a judge was involved in the judgment who is guilty of a criminal breach of his official duties against the party in relation to the legal dispute ;
- if the judgment of an ordinary court, an earlier special court or an administrative court on which the judgment is based is overturned by another final judgment;
- when the party
- an earlier judgment issued in the same matter, or
- finds or is able to use another document which would have resulted in a more favorable decision;
- if the European Court of Human Rights has found a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols and the judgment is based on this violation.
ZPO (special requirements for restitution action) contains the following regulation, which isof decisive importancein connection with ZPO:
(1) In the cases of the preceding paragraph numbers 1 to 5, the restitution action only takes place if a final conviction has been issued for the criminal offense or if criminal proceedings cannot be initiated or carried out for reasons other than lack of evidence. (2) The evidence of the facts which justify the restitution action cannot be provided by the application for a party hearing.
This means that in the event of fraud or perversion of the law, a final conviction is a prerequisite for a restitution action. The second half-sentence "or if criminal proceedings cannot be initiated or carried out for reasons other than lack of evidence" can only be understood through case law. From the corresponding guiding principles: "This is only the case if it is impossible to prosecute the criminal offense presented as a reason for restitution as a result of circumstances beyond the control of the restitution claimant."
According toZPO, a restitution action is only admissible if a party was unable, through no fault of their own, to assert the reason for restitution in the earlier proceedings through legal remedies.
According to emergency period of one month applies to a restitution action . The period begins on the day on which the party became aware of the ground for avoidance, however not before been incurred legal force of the judgment.Code of Civil Procedure, an
After five years, counting from the date on which the judgment becomes final, an action for restitution is no longer admissible ((2) sentence 2 ZPO).
The restriction of Section 586 (2) sentence 2 ZPO, according to which a restitution action is no longer permissible after five years after the judgment becomes final, does not apply to a restitution action undernumber 8 ZPO, i.e. if the European Court of Human Rights has established a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols and the judgment is based on this violation (Section 586 (4) ZPO).
Meaning and updates
The restitution action is of little practical importance because it is an exception.
By the decision of the European Court of Human Rights (ECHR) in the proceedings in the Jahn u. a. got into discussion against the Federal Republic of Germany.
The five applicants were heirs to land reform land. Due to the provisions of the 2nd Property Rights Amendment Act, they had to hand over these properties to the tax authorities without compensation because they could not be allocated. While civil jurisprudence has applied the regulations and the Federal Constitutional Court has repeatedly denied unconstitutionality in non-acceptance decisions, the ECHR saw a human rights violation in the fact that the complainants had not received any compensation. The federal government has appealed and called the Grand Chamber of the ECHR (for function and tasks see, for example, Grand Senate ). The appeal ultimately succeeded.
Occasional voices in legal literature wanted to apply partlyNo. 6, partly No. 7 letter b ZPO accordingly and said that an action for restitution could be permissible in a later ECHR judgment.
Up until December 31, 2006, a retrial due to decisions by the European Court of Human Rights was largely rejected by the case law. A turning point occurred on December 31, 2006 due to the Second Law on the Modernization of the Judiciary (2nd Law Modernization of Justice) of December 22, 2006. A new number 8 has been added toZPO, according to which a restitution action can also take place if the ECtHR has found a human rights violation.