Counterclaim

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In German civil and criminal proceedings, a counterclaim is a lawsuit that is brought by the defendant ("counter-plaintiff") against the plaintiff ("counter-defendant") in a pending litigation between the plaintiff and the defendant . It can only be raised in criminal proceedings if the plaintiff is a private plaintiff . A counterclaim in criminal proceedings is only possible in the first instance , in civil proceedings both in the first and in the second instance . It is sufficient to collect data up to the end of the last oral hearing ( Section 256, Paragraph 2, ZPO , Section 388, Paragraph 1 of the Code of Criminal Procedure ) and in the written procedure (in the absence of an oral hearing) until the end of the written period ( Section 128, Paragraph 2, Sentence 2 of the German Code of Civil Procedure) . Thereafter, it is not permitted.

Unlike offsetting in the process, which serves to defend against a lawsuit and can bring down the claim, the counterclaim is a counterattack that can lead to a conviction of the plaintiff (and counter-defendant).

Details in the civil process

General

“The legal institution of the counterclaim is intended to prevent the duplication and fragmentation of processes. Claims that belong together should be able to be negotiated and decided uniformly. "

There can therefore be reasons of process economy in favor of filing a counterclaim (clarification of mutual claims in just one process), but also cost advantages, since the costs of the lawsuit and counterclaims can only be decided jointly.

Tactically, a third-party counterclaim can, under certain circumstances, result in a witness for the plaintiff becoming a party himself, thereby worsening the plaintiff's ability to provide evidence.

Eligibility requirements

Proper filing of a lawsuit

The filing of a counterclaim is facilitated by the fact that it can be brought not only by serving a written statement, but also by asserting it in the oral hearing ( Section 261 (2) ZPO). Furthermore, according to Section 12 (2) No. 1 GKG, no advance payment of court costs has to be made.

Material jurisdiction

Section 33 ZPO does not regulate the subject matter jurisdiction. According to Section 5 Hs. 2 ZPO, thedisputed jurisdiction values ​​of the action and counterclaim arenot to be added together. If neither action nor counterclaim reaches the value in dispute of € 5,000 ( Section 23 No. 1 GVG ), the local court is responsible. If the regional court is responsible for the action, it is also responsible for the counterclaim, even if the value in dispute is less than € 5,000. If the action is below € 5,000 - i.e. the district court is responsible, but the counterclaim for more than € 5,000 - if the district court were actually responsible, it depends: On application, the district court must refer the matter to the district court, § 506 ZPO. However, the parties can also reach an agreement on the place of jurisdiction or the plaintiff can indulge in the counterclaim without complaint ( Section 39 ZPO).

Local jurisdiction (place of jurisdiction)

The place of jurisdiction for a counterclaim can be

  • from the general jurisdiction regulations ( §§ 12 ff. ZPO),
  • from the regulation of a special place of jurisdiction in Section 33 ZPO,
  • in the absence of a place of jurisdiction due to a complaint admission.

Section 33 ZPO regulates a special place of jurisdiction . This on the condition that there is a connection between the claim and the counterclaim. Furthermore, no - overriding - exclusive place of jurisdiction may apply to the counterclaim. According to Section 33 (2) ZPO, special jurisdiction for the counterclaim is also not given ifthe prorogation would be inadmissibledue to the subject matter of the counterclaim in accordance with Section 40 (2) ZPO.

Pending main action

The counterclaim is an independent lawsuit in civil proceedings, but in turn requires a lawsuit against which it can be directed: "The filing of a counterclaim assumes that the action against the defendant is mainly pending at the time it is brought."

  • Once the action has been withdrawn, a counterclaim is no longer permissible, even if the decision on costs according to Section 269 (3) sentence 3 ZPO is still outstanding.

However, if the counterclaim was already effectively filed, it does not make a withdrawal inadmissible.

  • Accordingly, a counterclaim can no longer be considered after a mutual declaration of completion ( Section 91a ZPO).
  • If, in the case of a lawsuit against several defendants, the action is (completely) terminated by a partial judgment against a defendant, a counterclaim for this defendant is inadmissible, even if the cost decision in the final judgment is still pending with regard to this partial judgment.

Identical process type

The admissibility of a counterclaim presupposes that the counterclaim can be carried out in the same type of process as the claim.

  • Example: A counterclaim cannot be filed against a dunning request.

No legal exclusion

According to Section 595 (1) ZPO, a counterclaim is legally excluded in the document, bill of exchange and check process.

Connectivity as a prerequisite for a factual judgment?

According to the controversial case law of the BGH, the existence of a "connection" (an economic or legal context) is a precondition for admissibility for a counterclaim. In the literature, the connection is predominantly only considered to be significant for the special place of jurisdiction and, among other things, the position of § 33 ZPO in the other places of jurisdiction, the design as a special and non-exclusive place of jurisdiction and that in § 145 para. 2 are against the opinion of the BGH ZPO envisaged possibility of process separation of an "unconnected" counterclaim cited from the lawsuit. The dispute does not matter if the plaintiff engages in the counterclaim without complaint and the lack of the admissibility requirement according to § 295 ZPO is then cured or the connection is already present.

Limited admissibility in the appeal

The filing of a counterclaim is generally permissible in the appellate court, Section 525 ZPO, but only under special conditions ( Section 533 ZPO in conjunction with Section 529 ZPO).

fees

The coincidence of suit and counterclaim affects the amount of court and lawyer fees. According to Section 45, Paragraph 1, Clause 1 of the GKG, the claims asserted with the lawsuit and counterclaims are generally added together to calculate the fees. As an exception, however, in accordance with Section 45 (1) sentence 3 of the GKG, only the higher claim is to be used if the objects of both actions are identical . The subject does not mean the litigation-related subject of the dispute : According to the identity formula , the subjects of both actions are rather identical if the mutual claims are mutually exclusive in such a way that the award of one necessarily necessitates the denial of the other. The same object is therefore present, for example, in the case of a lawsuit for performance from a contract and counterclaims for the determination of the non-existence of the contract; in this case, the higher claim would have to be used. Various items exist, for example, in the case of a lawsuit for delivery of the purchased item and counterclaims for damages; in this case both claims would have to be added together.

Special forms of counterclaim

Contingent counterclaim (auxiliary counterclaim)

The counterclaim can also be filed in the alternative (contingent or auxiliary counterclaim). As a procedural act , the counterclaim is also fundamentally anti-conditional. In relation to the plaintiff, however, it is permissible to make the counterclaim dependent on an internal procedural condition. Then a decision will only be made on the counterclaim if the set condition is met.

"The claim asserted with the counterclaim does not have to be directly dependent on the claim."

- Federal Labor Court : judgment of November 8, 2006

The main case of an allowable intra-litigation condition is the counterclaim's dependence on the success or failure of the action. Terminologically, a distinction is made between a genuine and a fake contingent action :

  • If a counterclaim is only filed in the event that the plaintiff is successful with his main claim, it is called a real contingent claim (a real contingent motion ; a real contingent relationship ).
  • If a counterclaim is only filed in the event that the plaintiff loses his main claim, it is called a spurious contingent claim , etc.

Examples:

- The plaintiff is suing for a purchase price claim of € 5,000. The defendant denies this, alternatively sets off a counterclaim in the amount of € 5,000 and, alternatively, raises an auxiliary counterclaim in the event that the set-off is inadmissible. This is a real contingent litigation case.

- If the counterclaim is only filed in the event that the set-off is ineffective due to the lack of a claim, a spurious contingent relationship exists.

- The defendant is at liberty to raise his counterclaim both in the event that the plaintiff wins (claim exists, (auxiliary) set-off does not apply) and in the event of the plaintiff's defeat (claim does not exist, for example).

In labor law, due to the uncertainties regarding the admissibility of offsetting ( protection against garnishment of wages) , it is likely that the employer's representative made a legal error not to file a counterclaim as an alternative to a declared offsetting in the case of a lawsuit for payment of wages.

In relation to a third party (third party counterclaim), an auxiliary counterclaim is inadmissible: "Because it is not to be expected of any opposing party to get involved in proceedings in which there is a possibility that it will dissolve again into legal nothing."

Third party counterclaim

The involvement of third parties is also possible (so-called third-party counterclaim):

  • The defendant is suing a third party in addition to the plaintiff as a comrade in the dispute (most frequent case; motive under certain circumstances is the elimination of the third party as a witness).
  • The defendant is only suing a third party (isolated third party counterclaim).
  • A third party is suing the plaintiff together with the counter-plaintiff.

The individual treatment of these cases is disputed.

Interim determination counterclaim (Section 256 (2) ZPO)

According to Section 256, Paragraph 2 of the German Code of Civil Procedure (ZPO), an interim determination counterclaim may be filed, which serves to extend the legal force of a decision to an anticipatory legal relationship.

Petitarian counterclaim

A petitioner counterclaim is a counterclaim with which a right to possession (e.g. from property ) is asserted against a possessorial property protection suit ( § 861 , § 862 BGB ).

According to the Federal Court of Justice, this does not contradict § 863 BGB, "according to which no objections can be raised against claims for property protection ( § 861 , § 862 BGB) from the right to possession or to carry out the disruptive act." "According to this, concerns against the admission of a corresponding counterclaim against property protection suits could only be derived from the meaning and purpose of § 863 BGB if the counterclaim delayed the decision on the suit. Such a concern is dispelled when the suit is ready for decision that the court has to decide on this by partial judgment without being allowed to wait for the counterclaim to be ready for decision "( § 301 ZPO).

Counterclaim

The counterclaim is a counterclaim by the plaintiff against the counterclaim by the defendant. It is only admissible if the counterclaim is still pending: "A counterclaim can no longer be raised in a legal dispute in which a final decision on a counterclaim has already been made." If it is admissible, it enjoys the advantages of a counterclaim: "If a counter-counterclaim was caused by the actual counterclaim and it is related to this within the meaning of ZPO § 33, it is not according to the provisions on the amendment of the suit, but according to those on the Treat counterclaim ". This means that § 263 ZPO does not apply, nor does an advance court fee have to be paid and § 33 ZPO applies to the place of jurisdiction.

Details in the criminal process

In criminal proceedings, a decision is made on the claim and counterclaim at the same time. The counterclaim is only admissible if the act alleged by it has injured the defendant and is related to the subject of the original lawsuit. In addition, it must also be prosecutable with a private lawsuit . If the (original) plaintiff is not also the injured party (e.g. if the injured party is a minor and a legal representative acts as the plaintiff), a counterclaim will result in the injured party being summoned if the injured party is not already present at the court hearing.

If the plaintiff withdraws his complaint, the counterclaim according to Section 388 (4) StPO remains unaffected.

literature

Web links

Individual evidence

  1. ^ BGH , judgment of April 19, 2000, Az. XII ZR 334/97, full text .
  2. ^ BGH, judgment of April 5, 2001, Az.VII ZR 135/00, full text .
  3. ↑ a b c d BGH, judgment of April 18, 2000, Az. VI ZR 359/98, full text ; see. also BGH, judgment of October 16, 2008, Az. III ZR 253/07, full text speaking here of "pending"
  4. ^ BGH, judgment of October 6, 2004, Az. IV ZR 287/03, full text .
  5. ↑ BGH, judgment of January 30, 1992, Az. IX ZR 222/91, guiding principle = NJW-RR 1992, 1404.
  6. ↑ BGH, judgment of January 30, 1992, Az. IX ZR 222/91, guiding principle = NJW-RR 1992, 1404.
  7. ^ BGH, judgment of September 30, 1999, Az.VII ZR 457/98, full text .
  8. ↑ BAG , judgment of November 8, 2006, Az. 5 AZR 706/05, full text = NZA 2007, 321 (323)
  9. ↑ See Musielak / Heinrich, ZPO, 11th edition 2014, § 33 ZPO marginal no. 12: "[...] or in the event of other conditions, provided they do not exist in an extra-procedural event"
  10. ↑ See also Wagner, JA 2014, 655 (657).
  11. ^ BGH, judgment of April 5, 2001, Az.VII ZR 135/00, full text .
  12. ^ Wagner, JA 2014, 655 (657)
  13. ^ BGH, judgment of January 23, 1970, Az. V ZR 2/67, full text .
  14. ^ BGH, judgment of January 23, 1970, Az. V ZR 2/67, full text .
  15. ^ BGH, judgment of October 16, 2008, Az. III ZR 253/07, full text .
  16. ↑ BGH, judgment of September 13, 1995, Az. XII ARZ 14/94, full text .
  17. ↑ Wagner, JA 2014, 655 (656 f.)