Legal aid

About the legal aid ( PKH (formerly known as ") Poor Law ") is may gem. Sections 114 et seq. Of the German Code of Civil Procedure (ZPO) provide financial support for people in need to carry out legal proceedings. Legal aid comes in proceedings before the civil , administrative , labor , financial and social courts , the Federal Patent Court and the Federal Constitutional Court considered if a party to the proceeding is unable, the court costs and any necessary own legal fees for the process to apply . In criminal proceedings, legal aid can only be granted to co-plaintiffs and adhesion plaintiffs or applicants in enforcement proceedings, but legal aid must also be introduced for accused and defendants by 2019 due to an obligation under European law . Legal aid is borne by the state and, through the fees, which are in some cases considerably lower than those of the regular calculation, the legal profession. It is a social welfare institution regulated by special law in the administration of justice and serves to achieve equality of legal protection . In the method according to the FamFG well as in matters of intellectual property rights , the process aid is a process aid designated (VKH).

At the European level, access for Union citizens is regulated by the EU Legal Aid Directive .

requirements

Eligible and eligible procedures

Legal aid can be granted to each party in judicial proceedings according to § 114 sentence 1 ZPO. Typically these are the plaintiff and the defendant . But legal aid can also be granted to secondary interveners or other parties involved in proceedings under the FamFG or (in special proceedings) applicants or opponents, creditors and debtors. In addition to natural persons, legal persons (cf. § 116 ZPO) can also receive legal aid, but under much more stringent conditions. If the general requirements are met, foreigners and stateless persons also have an unrestricted right to legal aid for litigation in German courts, even if the person concerned is not domiciled in Germany. For cross-border proceedings within the European Union, the regulations in §§ 1076 to 1078 ZPO apply .

For the extrajudicial area (except in the federal states of Bremen and Hamburg), only advisory assistance can be granted in accordance with the Advisory Assistance Act (BerHG).

application

Legal aid is generally only granted on application, whereby the application can be made in writing or on record at the office or at a court hearing, cf. Section 117 (1) ZPO. There is no compulsory form for applying for legal aid per se, but the use of the official forms is required when describing the economic situation. If no information is given on the economic situation when the application is submitted or the official forms are not used, this will usually be requested by the court.

The application for legal aid must be submitted to the court at which the process is pending or at which it is to be brought or at which an intended appeal against a decision of the lower court is to be lodged. In the case of constitutional complaints, the application must be submitted to the Federal Constitutional Court . The application for legal aid can therefore

are brought before an action is brought (so-called isolated proceedings on legal aid); in this case usually together with a draft complaint or some other description of the facts and at least a sketch of the reasons for the complaint,
be brought together with the action or
at any time after the action has been brought, but before the end of the proceedings. In this case, however, there is no entitlement to reimbursement within the framework of legal aid for costs that were incurred before the application was submitted.

If deadlines are to be observed for a lawsuit or legal remedy and if these deadlines have expired during the processing time of an isolated legal aid application, not only must the lawsuit actually be filed within two weeks of receipt of the decision on legal aid, but also reinstatement in its previous status in order to safeguard the law to apply. If it is a legal process, a lawyer must also be commissioned for the process during this time so that he or she can file the lawsuit or appeal with power of attorney.

In principle, there is no compulsory lawyer for legal aid proceedings, not even if a lawyer would be required for the main case for the intended procedure.

Personal and economic requirements

The economic need is to be shown and documented by means of a declaration of the personal and economic circumstances . The exact calculation modalities can be complicated in individual cases. Receipt of current benefits according to SGB II or SGB XII is, however, always an indication of the need and obliges a lawyer to point out that the approval of legal aid could be possible. Even without such benefit claims, however, the economic prerequisites for approval of legal aid may exist.

The applicant must therefore provide truthful information about his financial situation. Since 2014 it has been made clear by law that the opposing party can also comment on the applicant's economic circumstances; nevertheless, according to As a rule, not to make the submitted documents accessible or only with the consent of the applicant in accordance with Section 117 (2) sentence 2 ZPO.

In personal matters, there may be a claim for maintenance against a capable spouse, even if the partners should live separately, for the conduct of legal proceedings, the so-called advance payment of costs . In the case of an existing and enforceable claim, the economic prerequisites for the approval of legal aid are not met.

Chances of success and a lack of willfulness

The approval of legal aid also requires that there are sufficient prospects of success and that the prosecution does not appear willful.

On the basis of the submitted documents on the dispute and any detailed comments from the opponent or the other parties involved, the court conducts a summary preliminary examination . For approval, the outcome of the procedure must at least be open and z. B. can only be clarified in the context of a gathering of evidence. If the legal prosecution or legal defense only partially has a sufficient chance of success, then an approval and consequently assumption of the legal costs will only be given.

In addition, legal prosecution must not appear willful within the meaning of Section 114 (2) ZPO . A lawsuit is considered deliberate if, despite the existing chances of success, an economically better off and sensible person would not file the lawsuit (e.g. because of disproportionately high legal costs in relation to the achievable goal).

Section 114 (2) ZPO reads:

(2) Legal prosecution or legal defense is willful if a party who does not claim legal aid would refrain from legal prosecution or legal defense after a reasonable assessment of all circumstances, although there is a reasonable chance of success.

The wording of the law is incomprehensible, although it does not pursue such a goal: at least according to its wording, it would be presumed willfulness even if a well-off would not lead a lawsuit, although there is a reasonable chance of success. In such a case, he could expect reimbursement of costs from the losing opponent.

In the literature it is often criticized that this restriction could lead to the refusal of PKH approval even if there is a sufficient chance of success. This can be a tenant, for example, who, due to his burden of proof, would first have to call in an expensive appraiser if the landlord denies the fault of the occurrence of a defect (Section 536a BGB).

In the case law, the question whether the prospect of success of a lawsuit can be denied solely because of the lack of factual jurisdiction of the court is controversial. While some courts answer this question in the affirmative, other courts see a referral of legal aid proceedings to the relevant court in analogous application of § 17a GVG to avoid a negative conflict of jurisdiction.

Decision on the application for legal aid and consequences

Legal aid granted

If legal aid is granted, the party is exempt from paying court and procedural costs. Depending on the financial circumstances of the person concerned, legal aid is granted with payment in installments or without payment in installments. The legal aid with payment in installments is a so-called judicial loan according to § 120 ZPO. If legal aid has only been granted in installments, the fixed installments must be paid until the expected costs are covered or the upper limit of the installment has been reached.

If the application for legal aid has already been submitted by a lawyer or if the applicant has already specified a lawyer of his choice who is willing to represent, the court will assign this to him in accordance with Section 121 ZPO. If no assignment of a specific lawyer has been applied for before the approval decision, the person entitled can also subsequently request the assignment of a lawyer of his choice who is willing to represent him. According to Section 121 (3) ZPO, a lawyer who is not established in the district of the trial court can only be assigned if this does not result in additional costs. If understood correctly, this can only affect travel expenses incurred for the attorney's journey to the trial court, but not the fee.

The assignment gives the assigned attorney a claim for remuneration against the state treasury and triggers a block of claims with regard to attorney fees vis-à-vis the client, Section 122 (1) No. 3 ZPO. Accordingly, the lawyer is not allowed to settle accounts directly with the client from the time of assignment. However, other important points of the relationship between lawyer and client are not regulated by the assignment. In particular, the assignment does not replace a power of attorney; the power of attorney must always be issued separately by the person seeking the right. Also, the person entitled to legal aid cannot force the assignment of a particular lawyer against his will (Section 121 (1) ZPO: “lawyer ready to represent”) or demand that the assigned lawyer conclude an attorney's contract that goes beyond the statutory provisions. Conversely, a remuneration agreement that grants an associated lawyer a higher remuneration than the statutory remuneration is in accordance with. Section 3a (3) RVG is void.

If legal aid is granted and the applicant loses the process, the court costs, the costs of any possible taking of evidence (e.g. expenses for witnesses or experts) as well as the attorney's fees for your own attorney are covered by the state treasury, but not the costs of the opposing attorney, Section 123 ZPO. The applicant must reimburse this to the same extent as is the case with people who are not in need. Legal aid only covers court costs and the fees of your own lawyer, which are calculated from a value in dispute of more than € 4,000 according to reduced rates (Section 49 RVG). If the applicant wins the process, the opponent must bear all legal and litigation costs - except in labor court proceedings of the first instance.

Refusal of legal aid

If legal aid is rejected, a legal remedy is given in accordance with Section 127 (2) ZPO (not to be confused with the immediate complaint in accordance with Section 569 ZPO, which provides for an emergency period of two weeks). On the basis of Section 127 (2) ZPO, an immediate complaint can be made within an emergency period of one month after delivery or other receipt of the rejection decision.

The prerequisite is that the amount in dispute mainly exceeds € 600 ( § 511 ZPO). Likewise, there is no legal remedy against a negative legal aid decision if no legal remedy would be possible against a decision in the main proceedings or the complaint is excluded by law, e.g. B. in asylum procedures according to § 80 AsylG . The negative decision must contain a justification from which it can be seen whether the court denies the prospect of success of the action or whether it appears wanton or whether the applicant is able to finance his litigation from his own resources. With legal aid, a complaint against the refusal of legal aid can be filed by the person concerned without a lawyer.

In proceedings before the tax courts , Section 142 FGO regulates legal aid and the provisions of the Code of Civil Procedure (ZPO) on legal aid apply accordingly. According to Section 128 (2) FGO, decisions in the process of legal aid cannot be challenged with a complaint. However, in the event of a rejection, if the chances of success are moderate, a hearing complaint according to § 133a FGO is permissible . There is no compulsory lawyer before the tax courts (Section 62 (1) FGO).

A tax advisor or auditor can also be assigned to a party who has been granted legal aid in legal proceedings before the financial jurisdiction (Finanzgericht, Bundesfinanzhof ) . Their remuneration is also based on the provisions of the Lawyers' Remuneration Act, Section 142 (2) FGO, which apply to the assigned lawyer.

Before the Federal Fiscal Court (Section 62 (4) FGO), those involved must be represented by an authorized person. However, the person concerned can submit an application for legal aid to the Federal Fiscal Court himself. The application must be submitted to the Federal Fiscal Court within the respective period of appeal with evidence of the financial court decision and its delivery or other access and the applicant will be informed of the file number by the Federal Fiscal Court.

Insofar as the application for approval of legal aid with all the necessary procedural evidence, the declaration of personal and economic circumstances and a justification for the appeal, which is sufficient in layman's form, is submitted to the Federal Fiscal Court within the period that a lawyer or tax advisor for the application and justification is available, the constitutionally required equality of treatment is sufficient.

The decision on the PKH application is made by resolution and is free of court fees.

Because legal aid proceedings are free from compulsory representation, in the event of a rejection there is the theoretical possibility, albeit with no prospect of success, to file a complaint against the rejection decision pursuant to Section 133a FGO, which the person concerned can also do himself. This would only be conceivable at all if a hearing impairment had actually occurred. A hearing objection is not given against a decision that is perceived as “incorrect”, but rather a constitutional complaint in the event that the refusal of legal aid is palpably flawed and therefore violates the basic rights of the person concerned.

In civil matters, an appeal on a point of law to the Federal Court of Justice against a negative decision by the appellate court may still be permissible if the appellate court has expressly allowed this. In this case, the complainant must also be represented in legal aid proceedings by a lawyer approved by the Federal Court of Justice.

Review process

The change in the legal aid decision is possible within four years after the conclusion of the procedure, Section 120a (1) sentence 3 ZPO. During this period, the personal and economic circumstances can be checked again. Depending on the result of the review, the court may change the grant of legal aid to the effect that an installment payment or a one-off payment is ordered. It can also change an existing rate arrangement with regard to the rate level. Insufficient participation in the examination procedure can lead to the repeal of legal aid in accordance with Section 124 (1) No. 2 ZPO. The review is carried out by the Rechtspfleger , Section 20 No. 4 RPflG.

Cost of the approval process

General cost regulations

There are initially no court costs for the procedure for the approval of legal aid. However, it is different if an immediate complaint is filed and rejected. In accordance with no. 1812 of the GKG cost register (KV) or for the voluntary jurisdiction no.19116 of the GNotKG cost register, the court fees for this amount to 60 euros, but the court may decide to reduce them by half or not to charge them Note on KV No. 1812 GKG). Likewise, costs can arise in the practically rare case that witnesses or experts are heard during an examination procedure, Section 118 (1) sentence 5 ZPO.

If a lawyer is commissioned to apply for legal aid, a fee is due for this in accordance with No. 3335 of the RVG compensation register (VV). This amounts to as much as the procedural fee for the reference procedure for which legal aid is requested, but no more than a full fee (1.0). No. 3336 RVG-VV applies to proceedings before the social courts, insofar as these proceedings are to be settled according to the amount of the framework fees; the fee is between 30 and 320 euros.

Anyone hiring a lawyer to apply for legal aid has to pay him / herself. However, if the approval is obtained later and the court proceedings are carried out, these fees are included in the later fees (covered by legal aid), Section 16 No. 2 RVG.

There is no reimbursement of costs in the approval process, Section 118 (1) sentence 4 ZPO. The opponent does not have to reimburse the costs incurred, even if legal aid is granted.

If the process is lost, the person who received legal aid must also bear his own costs and those of the opponent.

Advisory assistance and legal aid for the procedure for legal aid

In principle, no legal aid is granted for the legal aid procedure itself, since the procedure is not considered to be a judicial procedure. Rather, the legal seeker has the option of (preparatory) advisory assistance for this (ibid.) For a complaint procedure against a decision in legal aid proceedings, the situation is still controversial, but the aforementioned decision of the Federal Court of Justice indicates that, as a rule, also for the complaint procedure no legal aid can be granted. However, something different applies to the complaint procedure in matters of financial jurisdiction , since the PKH complaint there is already subject to legal requirements and the Federal Fiscal Court has therefore expressly approved the granting of legal aid for a complaint procedure. The same applies to the legal complaint procedure.

Legal protection insurance

An existing legal protection insurance does not prevent the application and approval of legal aid. However, if a cover letter is given, the economic requirements for the approval of legal aid are no longer applicable. There is an obligation to notify in accordance with § 120a Abs. 2 S. 1 ZPO to the court.

Criminal proceedings

In criminal cases where it is accused does not grant legal aid. In cases of necessary defense, compulsory defense applies here . However, this is not possible for all criminal offenses, but only in the case of detention, difficulty in the factual and legal situation, etc. On the other hand, victims of criminal offenses who are entitled to incidental charges can be granted legal aid. According to Section 379 (3) of the Code of Criminal Procedure, private plaintiffs are also granted legal aid in private litigation according to the same principles and conditions as in civil proceedings.

literature

Hundt: Legal aid and advice, guidelines for practice. 1st edition. 2008, ISBN 978-3-472-06940-9 .
Kalthoener / Büttner / Wrobel-Sachs: Legal aid and advice. 4th edition. 2005, ISBN 978-3-406-53385-3 .
Michael Nickel: Current developments in jurisprudence on legal aid and advice , monthly for German law 2012, 1261
Michael Nickel: Change in legal aid law - economic necessity or window dressing? , Family and Law 2013, 82
Michael Nickel: Legal aid for intended complaint - all problems solved? , Der Familienrechtsberater 2013, 129
Schoreit / Groß: Advice on legal aid. 9th edition. 2008, ISBN 978-3-8114-3432-5 .
Poller / Teubel: Legal aid, hand comment . Nomos Verlagsgesellschaft, Baden-Baden 2012, ISBN 978-3-8329-6479-5 .
Martin Weigl, Pitfalls and the handling of legal aid proceedings - the client's interest in avoiding costs and the interest of the litigator in fees, AO-StB 2013, 19–24