Principle of negotiation

from Wikipedia, the free encyclopedia

The principle of negotiation (also principle of introduction ) is a process maxim that prevails in civil proceedings .

In civil proceedings, it is up to the parties to present all relevant facts in good time, on the basis of which the court then makes a decision ( Section 282 ZPO).

functionality

The term "principle of negotiation" is explained by the fact that the court only takes into account what the parties submit orally in the hearing or replace by reference to written pleadings. However, there is an obligation to inform if the factual presentation is insufficient ( Section 139 ZPO ). Evidence is only raised if facts have been presented and disputed by the opponent ( § 288 ZPO) (but see the truthfulness of § 138 ZPO). The parties are also generally responsible for obtaining the evidence . Witnesses can only be charged if the evidence guide the hearing requested. For documents that applies Edition obligation .

While the court is bound by the submissions of the parties with regard to the substance of the facts (the facts of the case ) ( da mihi factum, dabo tibi ius ), this does not apply to the application of the law. Here in Germany (unlike in various other legal systems , e.g. the Romance legal system ), the principle applies that the court must know the law and apply it correctly without being bound by the legal provisions of the parties ( iura novit curia ).

In order to avoid the dangers of those involved (e.g. by forgetting to submit relevant objections), which may not be taken into account ex officio, in civil proceedings at the Regional Court, Higher Regional Court and the Federal Court of Justice, a lawyer is compulsory ( § 78 ff. ZPO) .

history

Historically, the principle of negotiation can be traced back to the bourgeois- liberal value system of the early 20th century .

Since the National Socialists came to power , this basis of civil procedural law has been continually pushed back. On October 27, 1933 , the parties' obligation to be truthful was added to Section 138 of the ZPO for the purpose of protecting the opposing party .

Demarcation

In criminal proceedings , the principle of inquisition applies instead of the principle of negotiation (also: principle of investigation or principle of official investigation ). In civil proceedings, too, the principle of investigation applies in some areas in which a comprehensive clarification of the facts appears necessary in the public interest, for example in marriage and parentage matters ( Section 26 FamFG ).

In some cases, however, facts must also be checked ex officio in civil proceedings. Namely, if a decision has to be made about indispensable process requirements or the admissibility of legal remedies . However, this examination is based on the facts presented by the parties, so that these restrictions are not those of the principle of disclosure, but of the principle of disposition ( disposition maxim ), although this difference is sometimes blurred (especially in practice).

literature

  • Othmar Jauernig: negotiating maxim, inquisition maxim and subject of dispute (= law and state in past and present 339/340, ISSN  0340-7012 ). Mohr Siebeck, Tübingen 1967

Web links