Protective letter

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A protective letter (in criminal law also a defense letter ) is a written submission to a court , which is intended to prevent a decision to the detriment of the party who submitted the written statement as a precautionary measure in the context of a feared preliminary legal protection procedure.

Germany

General

With the protective letter, which was first developed by the practice and explicitly recognized 2 ZPO since 1 January 2016 in § 945a para. 1 sentence, a preventive defense means to be prevented in the sense that in preliminary injunction proceedings a disposal decision without a hearing ( § 944 ZPO ) of the respondent takes place or an application for arrest is approved. Whether the court orders an oral hearing or decides directly through a resolution is at the discretion of the court ( Section 937 (2) ZPO) and is handled differently. In making its decision, however, the court must always take into account the content of the protective letter submitted in accordance with the principle of the right to be heard. Despite the protective letter being deposited, an interim injunction can be issued if the presiding judge of the responsible chamber is free to believe that the arguments in the protective letter cannot be accepted.

In order for a resolution to be passed without an oral hearing, an urgency (= reason for disposal) is required in addition to the right to dispose (e.g. § 1004 BGB or § 8 UWG ). There must be an "urgent case". An urgent case is when delaying the decision would not serve the purpose of the decision. The protective letter is u. a. to be found in the field of commercial legal protection, as competition disputes trigger quick proceedings. In these disputes, urgency is presumed to be rebuttable, Section 12 (2) UWG. The purpose of the protective letter is, on the one hand, that the representation of the opposing party who speaks against a disposition claim is taken into account and, on the other hand, that at least one resolution without an oral hearing is prevented.

The protective letter is only one way of responding to a warning . There are other variants: the negative declaratory action , the counter warning that submission or non-submission of punitive cease and desist . Given the u. In any case, a careful examination and weighing is recommended.

The electronic register of protective documents

In accordance with Section 945a of the German Code of Civil Procedure, which came into force on January 1, 2016 , the State Justice Administration of Hesse maintains a central, transnational electronic register for protective writings (protective writings register) for the federal states. As soon as a protective letter is entered in this central electronic protective letter register (ZSSR), it is considered to be available in all ordinary courts of the federal states ( Section 945a, Paragraph 2, Clause 1 ZPO) and all labor courts of the federal states (Section 62, Paragraph 2, sentences 3, 85 Para. 2 sentence 3 ArbGG). This legal fiction does not apply to the procedure for issuing an interim order according to §§ 49 ff FamFG , as well as to the public law courts.

Since the potential respondent and protective letter depositor could not always be sure at several courts that might be considered for the anticipated application for an injunction , in particular due to the " flying place of jurisdiction ", to which court the applicant would submit the application for an injunction, it was in It has been common practice to date to submit the protective letter to several courts. This multiple filing does not apply, which makes the defense easier for the defendant. If a lawyer is called in to submit a protective letter despite the fact that there is no legal obligation to use a lawyer , he / she is obliged to use the ZSSR in accordance with Section 49c BRAO . For all others, however, the ZSSR is only an alternative type of filing, while the previously customary written filing with the court deemed competent for the expected application is still open to them.

When submitting the protective letter to the ZSSR in accordance with Section 2 Paragraph 1 Sentence 2 of the Protective Letter Register Ordinance (SRV), a uniformly structured data record must be attached, which at least contains the name of the likely parties and information on the possible subject of the dispute . Together with any attachments, these files must be submitted to the registry as an electronic document (Section 2 (2) SRV). According to § 2 para. 4 sentence 1 SRV, the electronic document must contain a qualified electronic signature . However, if the submission is made via a secure transmission channel (via a De-Mail account , the special electronic lawyer’s mailbox (beA) or an electronic mailbox corresponding to the beA), a simple electronic signature has been sufficient since January 1, 2017 (Section 2 Para . 4 p. 1 SRV).

After submission, the protective letter must be posted in the ZSSR immediately and a confirmation of posting must then be sent to the depositor (Section 3 SRV). From Article 103, Paragraph 1 of the Basic Law , the courts are obliged to check the ZSSR for any protective documents that may have been deposited upon receipt of an application for an interim injunction . Pursuant to Section 945 a (3) of the ZPO, access by the courts must be restricted to the extent necessary and each access must be logged. The potential applicant, on the other hand, has no right to find out before the application is submitted whether his potential opponent has submitted a protective letter.

The protective text that has been set remains in the ZSSR for 6 months before it has to be deleted in accordance with Section 945a (2) sentence 2 ZPO and Section 6 (1) SRV. This short recruitment period is based on the protection of the data of the submitter, as well as the fact that protective letters are always submitted in response to anticipated interim injunction requests for current reasons. Furthermore, the protective letter will be deleted immediately at the request of the submitter, whereby the request for deletion must meet the same requirements as the submission (Section 6 (2) SRV).

According to Section 1 No. 5a of the Justice Administration Costs Act, No. 1160 List of Costs, the costs for posting a protective letter in the ZSSR amount to € 83. These are to be paid by the depositor. If the presumed application for injunction does not come about or if the respondent is defeated in the proceedings, he must continue to bear this. However, if the depositor is successful in the disposition procedure, the costs of the submission are reimbursable.

The register of protective letters, which was previously operated by the EEAR ( European EDV Academy of Law gGmbH), was replaced on January 1, 2016 by the new central register of protective letters. The protective script register is to be continued in parallel in addition to the protective script register according to § 945a ZPO until a nationwide supply of the lawyers with signature cards and thus a comprehensive use of the new register is guaranteed.

Switzerland

The protective letter is expressly provided for in Art. 270 ZPO, which came into force on January 1, 2011. According to this, anyone who has reason to believe that an application for a super-provisional measure, arrest, a declaration of enforceability under the Lugano Convention or another measure will be applied for against him or her without a prior hearing can, as a precautionary measure, express his position in a protective letter.

literature

Germany
  • Andreas Wehlau: The protective letter. Legal bases, procedural tactics, forms. Carl Heymanns, 2011. 264 pp. ISBN 978-3-452-27440-3
  • Valentin Spernath: The protective letter in civil law proceedings. Mohr Siebeck, 2009. ISBN 978-3-16-149803-9 (dissertation)
  • Hefermehl, Köhler, Bornkamm: competition law. 25th edition. Munich 2007.
  • Baumbach, Lauterbach: Code of Civil Procedure. 61st edition. Munich 2003.
  • Schuschke, Walker: "Enforcement and preliminary legal protection.", 5th edition. Cologne 2011.
Switzerland
  • Andreas Güngerich: The protective letter in Swiss civil procedural law. Bern 2000.

Web links

Individual evidence

  1. ↑ BeckOK ZPO / Mayer, 32nd Ed. March 1, 2019, ZPO § 945a Rn. 1; Saenger / Ullrich / Siebert, Code of Civil Procedure, Annotated Process Forms, 4th Edition 2018, Section 945a Rn. 1.  
  2. ↑ MüKoZPO / Drescher, 5th edition. 2016, ZPO § 937 Rn. 9; Huber, JuS 2018, 1266, p. 1266.
  3. ↑ BeckOK ZPO / Mayer, 32nd Ed. March 1, 2019, ZPO § 945a Rn. 1; Erfurt Commentary / Koch, 19th edition 2019, ArbGG § 62 Rn. 18th
  4. ↑ Saenger / Ullrich / Siebert, Civil Procedure Code, Annotated Process Forms, 4th Edition 2018, § 945a Rn. 6; JuS 2018, 1266, p. 1266.
  5. ^ Protective writings register ordinance (SRV) of November 24, 2015 ( BGBl. I p. 2135 )
  6. ↑ Musielak / Voit / Huber, ZPO 16th ed. 2019, § 945a Rn. 2.   
  7. ↑ BeckOK ZPO / Mayer, 32nd Ed. March 1, 2019, ZPO § 945a Rn. 2; Musielak / Voit / Huber, ZPO 16th edition 2019, § 945a marginal no. 3; BT-Drs. 17/12634, 35.
  8. ↑ Saenger / Ullrich / Siebert, Civil Procedure Code, Annotated Process Forms, 4th Edition 2018, § 945a Rn. 3; Musielak / Voit / Huber, ZPO 16th edition 2019, § 945a marginal no. 5.   
  9. ↑ BeckOK ZPO / Mayer, 32nd Ed. March 1, 2019, ZPO § 945a Rn. 2; Musielak / Voit / Huber, ZPO 16th edition 2019, § 945a marginal no. 5   
  10. ↑ Musielak / Voit / Huber, ZPO 16th ed. 2019, § 945a Rn. 5.
  11. ↑ Musielak / Voit / Huber, ZPO 16th ed. 2019, § 945a Rn. 5; JuS 2018, 1266, p. 1267.
  12. ↑ Musielak / Voit / Huber, ZPO 16th ed. 2019, § 945a Rn. 5; Germelmann / Matthes / Prütting, Labor Court Act 9th edition 2017, Rn. 100d.
  13. ↑ Musielak / Voit / Huber, ZPO 16th ed. 2019, § 945a Rn. 5; Germelmann / Matthes / Prütting, Labor Court Act 9th edition 2017, Rn. 100e.
  14. ↑ Musielak / Voit / Huber, ZPO 16th ed. 2019, § 945a Rn. 8th; JuS 2018, 1266, p. 1268. 
  15. ↑ BeckRS 2016, 15057.
  16. ↑ https://schutzschriftenregister.hessen.de/
  17. ↑ https://www.schutzschriftenregister.de/default.aspx