Default judgment

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Enforceable copy of a default judgment (district court)

The default judgment or default judgment is in German civil procedure law a court decision taken against a party which behaves delinquent in the process. Anyone who does not appear at an oral hearing without excuse or who does not get involved in a controversial hearing is in default. If there is a case of default, the non-defaulting party can apply to the court for a default judgment to be issued and thereby obtain a decision solely on the basis of the plaintiff's submissions.

Through the possibility of default judgment, the legislature wants to prevent parties from delaying the process by failing to act. Thus, the judgment serves to promote the constitutionally required guarantee of effective legal protection . Since a default judgment is only issued if the defaulting party had the opportunity to participate in the process, his right to be heard ( Art. 101 of the Basic Law ) is impaired, but not violated.

The default judgment is regulated in § 330 - § 347 of the Code of Civil Procedure (ZPO). In Austrian civil procedure law , the default judgment is a comparable regulation.

Default of the defendant, § 331 ZPO

The most significant practical area of ​​application of the default judgment is the default of the defendant . This case is regulated in § 331 ZPO. If the defendant acts in default, he takes the opportunity to challenge the plaintiff's submission. This increases the risk of him being convicted according to the plaintiff's application. Such a judgment is known as a default judgment. The defendant can be in default in an oral hearing as well as in the written preliminary proceedings.

Oral hearing, Section 331 Paragraphs 1–2 ZPO

(1) If the plaintiff applies for the default judgment against the defendant who did not appear at the hearing, the actual oral submissions of the plaintiff shall be accepted as admitted. This does not apply to submissions on the jurisdiction of the court according to Section 29 (2), Section 38.

(2) Insofar as it justifies the claim, is to be recognized after the request; if this is not the case, the action must be dismissed.

Conditions of default judgment

In order for a default judgment to be issued against the defendant, four prerequisites must be met: the plaintiff's request for such a judgment to be issued, the factual decision requirements of the complaint being met, the defendant's failure to attend an oral hearing and the conclusiveness of the complaint.

Request of the plaintiff

Section 331 (1) sentence 1 ZPO allows the plaintiff to apply for a default judgment to be issued against the defendant. It is controversial in jurisprudence whether this has to be a separate application by the plaintiff, which is specifically aimed at the issuance of a default judgment, or whether the plaintiff's application to convict the defendant can already be interpreted as an application for a default judgment. The case law is based on the latter. However, due to the judicial duty to lead the process in accordance with § 139 ZPO, which calls on the courts to support the plaintiff in correctly filing the application, this dispute has little practical relevance.

Factual decision prerequisites

The default judgment is a special judgment in the matter . In order for it to happen, the prerequisites for a decision on the merits of the action on which the process is being conducted must be met. Therefore, the court seised must, for example, have factual and local jurisdiction for the legal dispute .

If there is no prerequisite for a decision on the matter, the action is inadmissible, so that the application for a default judgment has no chance of success either. In this case, a negative trial judgment is issued to the detriment of the plaintiff. In jurisprudence, this is often referred to as a spurious default judgment, even if the default of the defendant is irrelevant for this form of judgment. If the court cannot clarify whether a prerequisite for a factual decision is missing, it will reject the application for the default judgment in accordance with Section 335 (1) number 1 of the ZPO.

Default in a hearing

Furthermore, the defendant must be in default in an oral hearing. This applies if he does not appear at such a hearing despite proper scheduling and summons. According to Section 333 of the German Code of Civil Procedure (ZPO), it is equivalent to not appearing if a party appears but does not negotiate the matter.

If a lawyer is required in a lawsuit, i.e. if there is a legal process , the person of the lawyer is decisive: If a party appears without a lawyer, or if the lawyer does not negotiate the matter, it is considered to be in default. This is based on the fact that, in accordance with Section 78 of the German Code of Civil Procedure , the parties must be represented by lawyers in the legal process. The parties themselves therefore lack the ability to postulate , i.e. the ability to undertake litigation themselves. Legal proceedings are processes before regional courts , higher regional courts and before the Federal Supreme Court . There is no compulsory lawyer before the district court , except in certain family matters .

There is no default if one of several defendants who appear as necessary comrades in the dispute does not appear for the hearing. In this case, the absent person is represented by his comrades in accordance with Section 62 ZPO. In this case, a default judgment can only be considered if all parties to the dispute are in default. A necessary dispute union exists if the decision of the court can only be made uniformly vis-à-vis all parties to the dispute for procedural or substantive reasons. This applies for example to a resolution of a general partnership -oriented action under § 133 of the Commercial Code to. According to the case law, there is also no default if a person joins the absent person in the process, appears in his place and hears the matter. The ZPO describes this person as a secondary intervener .

Conclusiveness of the action

If the conditions mentioned above are met, the court assumes, in accordance with Section 331 (1) sentence 1 ZPO, that the facts presented by the plaintiff are true. The plaintiff therefore does not have to prove his allegations . This also applies if the defendant disputed the plaintiff's submissions in an earlier hearing. A judicial assessment of evidence according to § 286 ZPO is therefore also excluded . This fictional confession finds its limit in the plaintiff's obviously untrue assertions.

Based on this fictitious confession, the action is well founded if it is conclusive. This is the case if the plaintiff presents all the facts which the merits of his claim requires. If the plaintiff sues for damages , for example , the court will grant his application if his submission results in the factual requirements for a claim for damages. The granting decision is a real default judgment.

However, if the requirements of the plaintiff's motion do not result from the plaintiff's submission, i.e. the claim is inconclusive, it will be rejected as unfounded. This is referred to as a spurious default judgment, because it is only issued due to the lack of conclusiveness of the action, and thus not due to the defendant's default. Furthermore, the action is inconclusive if the plaintiff submits the prerequisites for a claim, but it also emerges from his application that the claim has expired or is not enforceable, for example due to a statute of limitations . Before the complaint is rejected as inconclusive, the court usually points this out to the plaintiff in accordance with Section 139 (2) ZPO, so that he can supplement his submission if necessary.

Exclusion of the default judgment

In certain case constellations, regardless of the existence of the prerequisites, no default judgment can be issued. Reasons for exclusion are standardized in § 335 ZPO and § 337 ZPO. According to this, a default judgment is out of the question if the defendant is not at fault with regard to the default.

Section 335 of the ZPO standardizes five different case constellations in which the application for a default judgment is rejected as inadmissible. According to § 335 paragraph 1 number 2 ZPO, this applies, for example, if the defendant in default has not been properly summoned by the court. Furthermore, a default judgment according to § 335 paragraph 1 number 3 ZPO is excluded if an assertion by the plaintiff has not been communicated to the inactive party in a timely manner by means of a brief. According to Section 335, Paragraph 1, Number 4 of the German Code of Civil Procedure (ZPO), certain formal errors in the preliminary written proceedings preclude the issuance of a default judgment.

According to § 337 sentence 1 ZPO, a default judgment cannot be issued if the inactive party cannot be accused of inactivity. This applies if either the admission or summons period is too short or the defaulting party is prevented from appearing through no fault of their own. The default is culpable, for example, if the party negligently calculates travel times incorrectly or fails to inform the court of this in the event of a foreseeable non-appearance. If a party can be represented by a lawyer, but this does not appear at the hearing, it must be attributed to his fault according to § 85 paragraph 2 ZPO. On the other hand, the fault of vicarious agents of the lawyer, such as his office staff , is not attributed to the party . If this is responsible for the lawyer not appearing in the process, there is no default on the part of the party. If there is a case under Section 337 sentence 1 ZPO, the court postpones the hearing on the application for the default judgment or a decision based on the location of the files ex officio , provided it is aware of the case or it is obvious. If the court cannot determine that the inaction of the person concerned cannot be criticized, it will issue a default judgment.

If the applicant assumes that his application for a default judgment has been wrongly rejected, he can lodge an immediate complaint against this in accordance with § 336 ZPO . According to Section 569, Paragraph 1, Clause 1 of the Code of Civil Procedure, this must be submitted within two weeks of the announcement of the rejection.

Content of the default judgment

The default judgment consists of rubrum and tenor . According to Section 313b of the German Code of Civil Procedure ( ZPO), there is no need to state the facts and reasons for the decision . An exception only applies if enforcement is expected to take place abroad. Then the facts of the case and the reasons for the decision must be added, because decisions without a reason are very often not recognized by the foreign authorities as a basis for enforcement. Finally, in accordance with Section 232 Clause 1 ZPO and Section 59 Clause 3 of the Labor Court Act, a default judgment must contain information on legal remedies about the admissibility of an objection.

Since the spurious default judgment is a regular judgment issued as a result of an unsuccessful application for default judgment, it is structured like a regular judgment.

Default in the written preliminary procedure, Section 331 (3) ZPO

(3) If, contrary to Section 276, Paragraph 1, Clause 1, Paragraph 2, the defendant has not given notice in good time that he wishes to defend himself against the claim, the court shall make the decision at the request of the plaintiff without an oral hearing; this does not apply if the defendant's declaration is received before the judgment signed by the judges has been transmitted to the registry. The application can already be made in the application. A decision without an oral hearing is also permissible insofar as the plaintiff's submissions do not justify the claim in an ancillary claim, provided that the plaintiff was informed of this possibility before the decision.

Section 331 (3) ZPO was introduced by the 1976 amendment to simplification. The written preliminary proceedings are used to prepare for the main hearing in the first instance. In accordance with Section 276 (1) ZPO, the court orders such a procedure if it does not set an early first date for the oral hearing. This is to avoid that negotiations are arranged for processes in which the defendant does not want to defend himself; The preliminary procedure promotes the efficiency of the legal protection system.

In the preliminary proceedings, the court asks the defendant, within the framework of the service of the application, to indicate his readiness to defend against the claim. If he fails to do so within two weeks from the delivery of the complaint, the plaintiff can, in accordance with Section 331 (3) sentence 1 ZPO, request that the court issue a default judgment against the defendant. If the defendant does not submit a statement of defense to the court in due time, his or her previous defense is deemed to have been implicitly withdrawn and a default judgment is indicated.

According to Section 331 (3) sentence 2 ZPO, this application can already be made in the application, which is the normal case in practice. If the action is admissible and conclusive, the default judgment is issued. Otherwise the court will schedule an oral hearing.

Default of the plaintiff, § 330 ZPO

If the plaintiff does not appear at the hearing at the hearing, the default judgment is to be issued upon application so that the plaintiff is to be dismissed with the complaint.

If the plaintiff does not appear at the oral hearing despite having been properly summoned, or if he does not negotiate on the matter, the defendant can request that the action be dismissed under Section 330 ZPO. A genuine default judgment, which rejects the claim of the plaintiff in the matter, presupposes that the prerequisites for a factual decision of the action are met. This has to be proven by the defendant, who by ruling on the matter would have the advantage that further actions in the same dispute would be inadmissible. If he does not provide this evidence, a dismissive trial judgment is issued.

Appeals against the default judgment

Objection, §§ 338–344 ZPO

requirements

The real default judgment can be attacked by the convicted party according to § 338 ZPO with the legal remedy of the objection . The appeal is in accordance with § 339 ZPO within two weeks after delivery of the judgment in default with the court whose decision is contested, the iudex a quo , inserted. This is an emergency period . In labor jurisdiction proceedings , this period is only one week in accordance with Section 59 Clause 1 of the Labor Court Act . The appeal is in accordance with § 340 1 CCP paragraph by submitting a brief filed who calls the attacked default judgment and declared the appeal. In addition, he should state the reasons that support the objection to the judgment. Accordingly, the grounds for the objection should be submitted within the objection period. If it takes place later, the appellant will not be heard with his presentation in court if the legal dispute would otherwise be delayed. This follows from § 340 Paragraph 3 Clause 3 ZPO, which refers to the preclusion provision § 296 ZPO.

The admissibility of the objection is examined ex officio by the court in accordance with Section 341 (1) sentence 1 ZPO. If one of the conditions mentioned is not met, the objection will be rejected as inadmissible according to § 341 paragraph 1 sentence 2 ZPO. As a result, the challenged default judgment remains. The objection is rejected in accordance with Section 341 (2) ZPO in the form of a rejection judgment. According to Section 341 (2) ZPO, this can also be given without an oral hearing. It represents an adversarial judgment against which an appeal is permissible. A rejection judgment is also issued if the inadmissibility of the objection is only established during the oral hearing, or if the opponent is in default of the oral hearing. In the latter case, jurisprudence describes the rejection judgment as a spurious default judgment.

Legal effect

A permissible objection resets the legal dispute in accordance with § 342 ZPO to the status it existed before the default. Thus, the trial continues in the court where the lawsuit was filed, as if the convict had never been in default. Therefore, the objection leads to the setting of a new date for the oral hearing by the court, which is referred to as the objection date in accordance with Section 341a ZPO. As part of this, the court examines the admissibility and merits of the claim. Insofar as the decision made in the default judgment agrees with the decision to be made after the objection, it remains in effect according to § 343 ZPO, otherwise it is revoked and a new decision is made on the matter. Even if the appellant wins against the opponent in this regard, he bears the costs caused by his default in accordance with Section 344 of the German Code of Civil Procedure.

The functioning of the objection can be used by the parties to escape into default. This is a tactical procedural behavior: a defendant who does not respond to a complaint in due time runs the risk of not being heard with his future submissions according to § 296 ZPO, because this occurs too late and could delay the process. By defaulting on the defendant, he provokes that a default judgment will be passed against him. If he then objects to this default judgment, he can also make up for the previously belated submission within the framework of the grounds for the objection and make it the subject of his legal defense. Since, according to § 341a ZPO, a new hearing must be scheduled anyway, in which the evidence can be taken again, there is no risk of delay if a decision can be made on the subsequent submission within this hearing. Such a procedure harbors several risks for the defaulting party: On the one hand, even if he wins the main thing after an objection has been lodged, he must bear the costs of the default according to § 344 ZPO. On the other hand, the party applying for the default judgment receives with this judgment a provisionally enforceable title according to § 708 number 2 ZPO without the provision of security .

Appeal, § 345 ZPO

If the appellant is again in default after a permissible objection in the objection date, a second default judgment is issued against him in accordance with § 345 ZPO, by which the objection is rejected. No objection can be raised against this default judgment. According to Section 514 (2) ZPO, unlike the first default judgment, it can be challenged to a limited extent with an appeal. This legal remedy is admissible if the appellant asserts that there was no culpable default in the second judgment.

A second default judgment presupposes that the appellant is in default after a successful appeal. Whether the legality of the first default judgment has to be checked before a second default judgment is issued is controversial in jurisprudence. Some legal scholars argue that the convicted person must also be able to appeal against the first default judgment if it was wrongly issued. According to the prevailing view, which is also shared by the case law, this is to be denied in the reverse of Section 700 (6) ZPO: This provision expressly provides for a corresponding check for the enforcement order , which is why the legislature deliberately decided against such a check also in the case of the second default judgment. In addition, the person against whom a first default judgment is issued is already sufficiently protected by the possibility of objection.

The default of the appellant has the consequence that the admissible factual submission of the appellant is considered admitted. As far as the appeal request justifies it, the court will recognize the request. If this is not the case, it rejects the appeal. If the appellant is in default, his appeal will be rejected without a substantive examination by default judgment against which an objection is possible according to § 338 ZPO. The same applies to the default in the revision procedure.

If a further default judgment is issued against the appellant not in the appeal date but in a later hearing due to renewed default, this is not a second default judgment according to § 345 ZPO, but a first according to §§ 330, 331 ZPO.

Decision based on the files, § 331a ZPO

If one of the parties fails to attend the hearing, the opponent can apply for a decision based on the location of the files instead of a default judgment; the request is to be complied with if the facts appear to be sufficiently clarified for such a decision. Section 251a (2) applies accordingly.

As an alternative to the default judgment, the party appearing at the trial can apply for a decision according to § 331a ZPO according to the files . The court decides on the basis of the facts communicated to it by the parties during the proceedings. From the applicant's point of view, the advantage of the decision based on the files is that, unlike the default judgment, it cannot be challenged with an objection.

Failure of both, § 251a ZPO

(1) If both parties fail to appear or negotiate at one meeting, the court may decide on the basis of the files.

(2) A judgment based on the location of the files may only be issued if an earlier hearing was held. It may be announced in two weeks at the earliest. The court has to inform the non-appearing party of the announcement date. It determines a new date for the oral hearing if the party requests this at the latest on the seventh day before the date specified for the announcement and provides credible evidence that it was through no fault of its own and that it was not able to request the postponement of the date in good time.

(3) If the court does not decide according to the location of the files and does not postpone it in accordance with Section 227, it shall order the suspension of the proceedings.

If both parties are in default in an oral hearing, the court can make a decision according to § 251a paragraph 1, 2 ZPO, postpone the date according to § 251a paragraph 2 sentence 4 ZPO or order the suspension of the proceedings according to § 251a paragraph 3 ZPO. This provision is intended to speed up the process.

literature

  • Kurt Herget: §§ 330–347 . In: Richard Zöller (Ed.): ZPO . 31st edition. Otto Schmidt, Cologne 2016, ISBN 978-3-504-47022-7 .
  • Erik Kießling: §§ 330–347 . In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  • Hanns Prütting: §§ 330–347 . In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  • Klaus Reichold: §§ 330–347. In: Heinz Thomas, Hans Putzo (Ed.): Code of Civil Procedure: ZPO . 39th edition. CH Beck, Munich 2018, ISBN 978-3-406-71928-8 .

Web links

Individual evidence

  1. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 499
  2. ^ A b Michael Huber: Basic knowledge - civil procedural law: default of the defendant. In: Legal Training 2013, p. 18.
  3. ↑ Hanns Prütting: § 331 , Rn. 1. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 . Petra Pohlmann: Civil Procedure Law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 575.
  4. ↑ Hanns Prütting: § 331 , Rn. 6. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  5. ↑ Kurt Herget: § 331 , Rn. 5. In: Richard Zöller (Ed.): ZPO . 31st edition. Otto Schmidt, Cologne 2016, ISBN 978-3-504-47022-7 . Petra Pohlmann: Civil Procedure Law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 576.
  6. ↑ BGHZ 37, 79 (83).
  7. ↑ Erik Kießling: § 331 , Rn. 2. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  8. ↑ Hanns Prütting: § 331 , Rn. 4. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  9. ↑ Erik Kießling: § 331 , Rn. 4. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  10. ^ Petra Pohlmann: civil procedure law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 577. Jens Adolphsen: Civil Procedure Law . 5th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2223-5 , § 18, marginal no. 2.
  11. ↑ Hans-Joachim Czub, Göbel: § 331 , Rn. 5. In: Hanns Prütting, Markus Gehrlein (Ed.): Code of Civil Procedure: Commentary . 9th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-08998-8 .
  12. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 87.
  13. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 276c.
  14. ↑ Ralf Bendtsen: § 62 , Rn. 10. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  15. ^ BGH, judgment of April 13, 1994, II ZR 196/93 = Neue Juristische Wochenschrift 1994, p. 2022 (2023).
  16. ↑ Stephan Weth: § 67 , Rn. 4. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  17. ↑ Hanns Prütting: § 331 , Rn. 12, 14. In: Wolfgang Krüger, Thomas Rauscher (Eds.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 . Klaus Reichold: § 331 , Rn. 5. In: Heinz Thomas, Hans Putzo (Ed.): Code of Civil Procedure: ZPO . 39th edition. CH Beck, Munich 2018, ISBN 978-3-406-71928-8 .
  18. ↑ Hanns Prütting: § 331 , Rn. 11. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  19. ↑ BGHZ 37, 154 .
  20. ↑ Erik Kießling: § 331 , Rn. 7. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  21. ↑ Erik Kießling: § 331 , Rn. 9. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 . Petra Pohlmann: Civil Procedure Law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 578
  22. ↑ Erik Kießling: § 331 , Rn. 5. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 . Hanns Prütting: § 331 , Rn. 16. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  23. ↑ Erik Kießling: § 331 , Rn. 9. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  24. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 276c-278.
  25. ↑ Michael Huber: Basic knowledge - civil procedural law: default of the defendant. In: Legal Training 2013, p. 19.
  26. ↑ Hans-Günther Borck: § 335 , Rn. 46. ​​In: Bernhard Wieczorek, Rolf Schütze (ed.): Code of civil procedure and ancillary laws. Vol. 5th Part. 1. Sections 300–329 . 4th edition. De Gruyter, Berlin 2015, ISBN 978-3-11-024842-5 .
  27. ^ BGH, judgment of March 22, 2007, IX ZR 100/06 = Neue Juristische Wochenschrift 2007, p. 2047.
  28. ↑ BGH, judgment of July 16, 1998, VII ZR 409/97 = Neue Juristische Wochenschrift 1998, p. 3125.
  29. ↑ Hanns Prütting: § 337 , Rn. 8. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  30. ↑ BT-Drs. 7/2729 , p. 80.
  31. ↑ Hans-Joachim Czub, Göbel: § 331 , Rn. 1. In: Hanns Prütting, Markus Gehrlein (Ed.): Code of Civil Procedure: Commentary . 9th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-08998-8 .
  32. ↑ Hanns Prütting: § 331 , Rn. 41. In: Wolfgang Krüger, Thomas Rauscher (ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  33. ↑ Stoffel / Strauch, NJW 1997, 2372
  34. ↑ Erik Kießling: § 331 , Rn. 13. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  35. ↑ Erik Kießling: § 331 , Rn. 16. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  36. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 506.
  37. ^ Petra Pohlmann: civil procedure law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 583.
  38. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 512.
  39. ↑ Hanns Prütting: § 340 , Rn. 13. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  40. ↑ Erik Kießling: § 341 , Rn. 3. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  41. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 283. Michael Huber: Basic knowledge - civil procedural law: Defendant's appeal against default judgment and “technically second” default judgment. In: Juristische Schulung 2015, p. 985 (987).
  42. ↑ Hans-Joachim Czub, Göbel: § 340 , Rn. 12. In: Hanns Prütting, Markus Gehrlein (Ed.): Code of Civil Procedure: Commentary . 9th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-08998-8 . Hanns Prütting: § 344 , Rn. 2. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  43. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 282.
  44. ↑ Astrid Stadler: § 345, Rn. 4. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  45. ↑ Kurt Herget: § 345 , Rn. 4. In: Richard Zöller (Ed.): ZPO . 31st edition. Otto Schmidt, Cologne 2016, ISBN 978-3-504-47022-7 .
  46. ↑ BGHZ 97, 341 (344).
  47. ↑ Hanns Prütting: § 345 , Rn. 15. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 . Petra Pohlmann: Civil Procedure Law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 593.
  48. ↑ Hanns Prütting: § 345 , Rn. 1. In: Wolfgang Krüger, Thomas Rauscher (Ed.): Munich Commentary on the Code of Civil Procedure . 5th edition. tape 1: §§ 1–354 . CH Beck, Munich 2016, ISBN 978-3-406-61031-8 .
  49. ^ Petra Pohlmann: civil procedure law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 , Rn. 584.
  50. ↑ Heinz Wöstmann: § 251a , Rn. 1. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .