Lawsuit
The step action enables the plaintiff in civil proceedings to first sue for the provision of information in order to then assert a precisely defined performance request.
function
The step action, regulated in § 254 ZPO , is a special case of the objective accumulation of actions . The plaintiff therefore makes several claims, which, however, are not decided at the same time, but rather in stages. The advantage over several individual lawsuits is that all applications become pending immediately . Thus, for example, the statute of limitations for a payment claim, the exact amount of which is still unknown, is inhibited ( Section 204 (1) No. 1 BGB ).
The step action combines up to three applications:
- 1st stage
- Right to information;
- possibly 2nd stage
- Obligation of the debtor to submit an affidavit;
- 3rd stage
- concrete entitlement to benefits.
Right to information
In the area of inheritance , company and family law , but also in the case of copyright claims, the step action is of considerable importance. In these areas, the authorized person is often dependent on receiving information from the person obliged to pay or surrender in order to be able to name what he is entitled to at all. Accordingly, there are numerous statutory rights to information (e.g. § 402 , § 666 , § 1379 , § 1605 , § 1799 , § 1839 , § 1978 , § 2027 , § 2314 BGB), but contractual rights to information can also be agreed. In principle, there is no general right to information on invoicing. However, § 242 BGB offers a right to information under certain conditions, provided that
- there is a special legal relationship between the parties
- the nature of the legal relationship means that the person entitled cannot obtain information himself in a reasonable manner
- the opponent is easily able to provide the information
Submission of an affidavit
If the information is given, the plaintiff can now assert a specific claim for benefits. If, on the other hand, there are justified doubts about the information provided, the plaintiff can demand the submission of an affidavit in accordance with Section 259 (2) and Section 260 (2) of the BGB.
Demarcation
The step action is to be distinguished from the contingent action . In the case of contingent actions, two claims are made, but in such a way that the second claim is linked to the internal procedural condition that the first claim is unsuccessful ( genuine auxiliary request ). In the case of a step action, the second application is made just for the success of the first application ( fake auxiliary application ).
decisions
If the right to information (1st stage) proves to be unfounded because the claim to benefits pursued with it does not exist in principle, the action will be dismissed in its entirety at the first stage. If only the right to information itself is unfounded (for example because the information has already been given), the court only rejects the right to information; the claim to benefits remains unaffected.
Only a partial judgment is given for the first and second stages . An appeal against it is admissible. In the third stage, the court finally decides on the actual entitlement to benefits. A final or final judgment is issued . At this point, the costs of the legal dispute are also decided. In the process, each stage is negotiated and decided separately.
Austria
In Austrian civil proceedings, the principle of definiteness of the request for action prevails when an action is brought. The plaintiff must therefore know exactly what he is asking of the defendant, otherwise the court's decision to examine the complaint after it has been brought "in limine litis" is rejected. An exception to this is the step action according to Art. 42 EGZPO (Introductory Act to the Code of Civil Procedure). With this, claims can be brought, the amount of which is not known. The lawsuit consists of two parts, the manifestation request and the surrender claim. In the first step, the plaintiff requests accounting or information about the assets or debts and, in the next step, the surrender of what is due to him or payment of the debts.
First, the court decides on the request for manifestation; if this has been granted, the claimant must specify the claim and then decide on it by the court. The action thus represents a combination of a declaratory action and a performance action (iwS).
literature
- Daniel Schäuble: The step action according to § 254 ZPO , in: Juristische Schulung (JuS) 2011, Heft 6, S. 506-510.
