Civil Procedure Law (Germany)

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The civil procedure law of the Federal Republic of Germany includes as a legal area all legal provisions that the formal course of court proceedings in civil disputes. It is therefore called formal civil law . It serves to determine and enforce rights and claims that arise from substantive civil law.

In civil proceedings, two parties, the plaintiff and the defendant, argue about their civil rights in the ordinary courts . The process is intended to clarify this dispute bindingly. For this purpose, a cognitive procedure takes place in front of the court, in which the facts are clarified and legally assessed. If the court determines the existence of a claim, enforcement proceedings follow in which the court decision is enforced.

Legal sources and systematic classification

The legislative powers for the control of civil procedure is in accordance with Art. 74 no. 1 of the Basic Law (GG) the federal government. The central legal sources of German civil procedure law are the Code of Civil Procedure (ZPO) and the Courts Constitution Act (GVG). Both laws came into force on October 1, 1879 and standardized procedural law, which had been severely fragmented up to that point. In the following years they were changed many times. In 2002 there was an extensive reform of the code of civil procedure.

The code of civil procedure regulates the course of civil proceedings. It contains guidelines on how a lawsuit is to be brought, whether a party must use a lawyer in court, how evidence is to be obtained and in what form the court decides. It also regulates foreclosure. The Courts Constitution Act contains judicial constitutional law , which concerns the structure and jurisdiction of the courts.

In addition, the Basic Law and the European Convention on Human Rights (ECHR) must be observed in civil proceedings . If the case to be decided has a foreign connection, the rules of the autonomous international civil procedure law (IZVR) as well as Europe-wide uniform EC guidelines must also be observed.

For civil law disputes in the field of labor law , procedural law is regulated separately in the Labor Court Act (ArbGG) due to many special features , which assigns labor law disputes to the labor courts . According to Section 46 (2) sentence 1 ArbGG, the provisions of the ZPO apply subsidiary to the proceedings before the labor courts. Special rules also exist for proceedings in family matters and in matters of voluntary jurisdiction .

Cognitive process

The civil process serves to implement the unwritten legal guarantee claim by giving individuals the opportunity to enforce their rights in court and to defend themselves against unjustified claims. This claim arises from the fact that, because of the state monopoly of force, it is fundamentally forbidden for individuals to enforce their rights independently by means of enforcement. In this way, civil procedural law maintains the rule of law. In addition, civil proceedings serve to enforce objective law. Ultimately, it is intended to create legal certainty and legal peace through a binding decision at the end of the procedure .

In order to achieve these goals, the civil process begins with a criminal investigation. There, the court should decide the legal dispute on the basis of the substantive law between the parties in a binding manner.

Parties to the dispute

The parties to the dispute are called the plaintiff and the defendant . The plaintiff is the party who brings an action on its own behalf. The defendant is the person against whom a lawsuit is directed. The party status is therefore linked to the formal position of those involved in the process. That is why one speaks of the formal concept of party.

Party ability

Only those parties can be in civil proceedings who are capable of taking part in accordance with Section 50 of the ZPO.

Pursuant to Section 50 (1) ZPO, anyone who has legal capacity, i.e. who can be the bearer of rights and obligations, is eligible to participate . This applies to natural and legal persons as well as general partnerships , limited partnerships and European economic interest groups . The legal capacity of the society under civil law is not provided for in the law, but recognized in the case law for practical reasons. Therefore, this is also party to. According to Section 50 (2) ZPO, the non-incorporated association is ultimately capable of forming a party.

Process capability

Process capability describes the ability to lead a process independently. It is necessary to be able to act effectively in the process.

Process capability is according to § 52 ZPO, who with unlimited legal capacity is. This applies to natural persons who are at least 18 years old; This does not apply to persons to whom a supervisor ( § 1902 BGB) or carer ( § 1915 , § 1793 BGB) is assigned in the process. If a party lacks litigation capability, it must have litigation activities carried out by its legal representative . A minor is represented by his or her parents in accordance with Section 1626 (1) sentence 1, Section 1629 (1) sentence 1 BGB.

Representation in the process can also take place on a voluntary basis; one speaks here of willed representation. It is established by granting a process power of attorney ( Section 80 ZPO) and, in accordance with Section 85 ZPO, causes the actions and fault of the authorized representative to be attributed to the person represented.

Litigation authority and factual legitimation

The term litigation authority refers to the authority to conduct a process in one's own name about a right. A lack of litigation authority renders a lawsuit inadmissible.

In principle, only those involved in the disputed legal relationship may litigate this. A third party is authorized to do this if there is litigation . Such can result from a statutory order . In this regard, a distinction is made between litigation in the interests of others and in one's own interests. The former group includes the case by virtue of office parties, such as the liquidator ( § 80 InsO ), the administrative receiver ( § 152 BMA ), the executor ( § 1984 BGB) and the executor ( § 2212 BGB). The latter case group includes, for example , the co- creditor ( Section 432 BGB), the co-owner ( Section 1011 BGB), the co-heirs ( Section 2039 BGB) and the spouse ( Section 1368 BGB).

If no legal authority can be derived from the law, the holder of the rights can authorize a third party to stand trial; one then speaks of arbitrary litigation. This assumes that the authorized person authorizes the third party to conduct the process and that the third party has its own legal interest in the process. The last-mentioned criterion is intended to prevent one party from gaining advantages at the expense of the other which it is not entitled to under the law. While the arbitrary litigation status on the plaintiff's side is largely recognized in law, it is disputed whether it is also possible on the defendant's side.

Chance admits the law associations for the protection of public interests own rights, which means these collective actions to enforce. Such are possible in the area of consumer protection . As associations proceed in their own right, this is not a form of litigation.

The legitimation of fact must be strictly distinguished from the litigation authority. This is about the question of whether the plaintiff is entitled to the alleged subjective right under substantive law ( active legitimation ) and whether it is directed against the defendant ( passive legitimation ). For example, in a surrender action based on Section 985 BGB, the owner is actively and the owner is passively legitimized. Lack of factual legitimation leads to the unfoundedness of a lawsuit.

Postulation ability

Postulation ability is the ability to carry out process actions in person. If a party lacks the ability to postulate, it cannot act in the process itself, but has to rely on a representative for this.

A party can postulate before the local court. Before the Regional Court, the Higher Regional Court and the Federal Court of Justice, however, representation by a lawyer is required in accordance with Section 78 (1) ZPO. This is to ensure that the parties receive legal advice in more complex cases and that the proceedings are carried out professionally by all parties involved.

Disputes association (subjective accumulation of claims)

If several people file a joint action or if several people are sued jointly, there is a dispute between them (also: subjective accumulation of lawsuits). The law differentiates between simple and necessary disputes.

Easy

The purpose of the simple cooperative is to negotiate a lawsuit by or against several people as economically and appropriately as possible. For this purpose, § 59 , § 60 ZPO give the parties the option of forming a simple dispute union in certain cases in which it is appropriate to deal with several disputes within one process. The law provides for this if there is a legal community between the parties to the dispute, if their entitlement or obligation is identical, and if their claims or obligations are similar. Unwritten prerequisites for a simple dispute association are the existence of the same type of process and the absence of a connection ban, as inferred by analogy from § 260 ZPO . If a lawsuit is brought by or against a simple dispute association, although its prerequisites are not met, the processes are separated in accordance with Section 145 (1) ZPO.

If there is a simple dispute association, a joint negotiation and a uniform assessment of evidence take place. The processes of the respective contestants remain legally independent according to § 61 ZPO, so that the behavior of one has no influence on the procedural position of the other.

Necessary

In cases of the necessary dispute union, a uniform decision of the court vis-à-vis the contestants is required. According to Section 62 (1) ZPO, the need for a dispute union may arise for procedural and other reasons.

A dispute union according to § 62 Abs. 1 Var. 1 ZPO, if the disputed legal relationship towards all parties in dispute must be decided in the same way. The formulation goes back to Leo Rosenberg that the extension of legal force leads to a necessary dispute union in the case of an imaginary sequence of processes. This applies, for example, if the heir and the executor are sued for the fulfillment of an estate liability ( Section 2213 (1) sentence 1 BGB). In this case, Section 327 (2) ZPO orders that the judgment in the legal dispute against the one works for the other. Since this applies regardless of the success of the lawsuit, one speaks of all-round extension of legal force. Another example of this is Section 856 (4) of the ZPO, which is relevant if a seizure creditor joins another in a lawsuit against the third party debtor from Sections 853 to 855 of the ZPO. However, it is sufficient if the legal force only extends unilaterally, i.e. only in the event of success or failure, depending on the area of ​​law. This is the case, for example, in Section 248 (1) sentence 1 of the Stock Corporation Act , which deals with the contestation of resolutions by the general meeting.

With the concept of other reason , § 62 Paragraph 1 Var. 2 ZPO substantive reasons. Such is the case on the plaintiff's side if the right in dispute can only be exercised jointly. It is present on the defendant's side if the disputed obligation can only be fulfilled jointly. A necessary dispute union exists, for example, in cases of joint action and joint debt . However, it is rejected for the joint liability of OHG and shareholders according to § 129 of the Commercial Code and of main debtors and guarantors according to § 768 Paragraph 2 BGB.

In the process, the necessary dispute association in accordance with Section 62 (1) ZPO ensures that one party in default is deemed to be represented by the other. This excludes the issuance of a default judgment and a decision based on the files. This is to prevent the prosecution of a comrade from failing because another does not want to participate.

Main intervention

Under the conditions of § 64 ZPO, a third party can enter the ongoing process as the main intervener. To this end, he must assert that the disputed matter or the disputed right is in truth his. The main intervention allows several disputes to be linked and assessed in one process. This promotes process economy and avoids contradicting decisions. In legal practice, the main intervention rarely occurs.

Side intervention and third party notice

If a third party has a legal interest in a party winning the process, he can join it as a secondary intervener (also: intervener) in accordance with Section 66 ZPO. A legal interest exists if the decision of the process affects the relationship between the party and the third party. This is the case, for example, if the intervener, if the party loses in the process, must fear that they will take recourse. This can happen , for example, in the context of the entrepreneurial recourse according to § 445a BGB.

The intervener can support the party in the process in accordance with Section 67 ZPO in order to improve its chances of success. Furthermore, according to § 68 ZPO , the intervention causes the third party to be bound to the ongoing process. This is similar to the legal force , but is more extensive: In a follow-up process, the third party can neither question the tenor of the judgment nor - in contrast to the legal force - the factual findings.

If the party itself has an interest in being supported by a third party, for example because it would have claims against the third party in the event of defeat or must fear the third party’s claims, it can announce the dispute to the third party in accordance with Section 72 ZPO. According to Section 74 (3) ZPO, the third party announcement results in the intervention effect of Section 68 ZPO.

The judge appointed to rule

Former Hereditary Grand Ducal Palace , today the main building of the Federal Court of Justice, Karlsruhe

According to Section 13 of the GVG, civil matters are heard before the ordinary courts. These include the local courts , the regional courts , the higher regional courts and the Federal Court of Justice . Civil matters are disputes in civil law matters, family matters and matters of voluntary jurisdiction. If the plaintiff submits his complaint to a court in a different branch of the law, this refers the complaint to the competent court of legal recourse pursuant to Section 17a (2) sentence 1 GVG.

In order for the court to decide a legal dispute in the matter, it must have international , local and factual jurisdiction for it.

According to Section 12 of the German Code of Civil Procedure (ZPO), the local court with the general place of jurisdiction of the defendant is generally competent . In the case of natural persons, this is at their place of residence in accordance with Section 13 of the German Code of Civil Procedure , and in the case of legal persons in accordance with Section 17 of the German Code of Civil Procedure at their registered office . The ZPO provides exclusive and special places of jurisdiction for certain disputes. While exclusive ones displace the general place of jurisdiction, special ones appear beside it. If the plaintiff has several places of jurisdiction, he can freely choose between these within the limits of abuse of law in accordance with Section 35 ZPO.

In accordance with Section 71 (1) of the GVG, the factual jurisdiction in the first instance lies with the regional courts, unless Section 23 and Section 24 of the GVG state that the local courts are responsible. As a rule, jurisdiction is based on the amount in dispute . This is measured in accordance with § 2 ZPO according to § 3 - § 9 ZPO. In the case of a value in dispute of more than 5,000 euros, the regional court is responsible in the first instance, in the case of a lower value in dispute the district court. The GVG assigns certain matters to a court regardless of the amount in dispute. The district court, for example, is always responsible for disputes about residential tenancy , the district court is always responsible for official liability matters .

If an action is brought before a court that does not have jurisdiction, it will reject it as inadmissible if the claimant does not submit a request for referral under Section 281 (1) sentence 1 of the Code of Civil Procedure. A court that is not competent can, however, become competent if the defendant, in accordance with Section 39 of the German Code of Civil Procedure, indulgently gets involved. In addition, the jurisdiction of a court in accordance with Section 38 of the German Code of Civil Procedure (ZPO) can be agreed between traders , legal entities under public law and special funds under public law . If the circumstances which justify the jurisdiction of the court are no longer applicable during the process, this has no influence on the factual jurisdiction with the exception of Section 506 (1) ZPO according to Section 261 (3) No. 2 ZPO; the perpetuatio fori therefore applies .

The competent judge is determined at the respective court through a business distribution plan; this serves to protect the claim to the legal judge under Article 101, Paragraph 1, Sentence 2 of the Basic Law. For certain cases in which the neutrality of the judge appears to be endangered, § 41 ZPO provides for the exclusion of the judge concerned. According to § 42 ZPO, a judge can also be rejected by a party if there is concern about bias .

Procedure in the first instance

In contrast to criminal proceedings , the parties to the dispute determine the subject matter, the evidence and, to a certain extent, the course of the proceedings. This follows from the disposition maxim that characterizes civil proceedings.

Filing a lawsuit

The civil process begins with the filing of a lawsuit. To this end, the plaintiff submits a brief , the application, to the court. This can be done in writing or, in the case of district court proceedings, orally for the minutes of the office.

Pursuant to Section 253 (2) ZPO, the application must name the parties and the competent court. It must also contain the subject matter and reason for the claim as well as a precise claim . The plaintiff must always quantify a monetary claim. If he asks for compensation for pain and suffering , it is sufficient to specify a magnitude as an application, as a more precise determination is difficult for him. If the plaintiff does not have the information necessary to formulate a sufficiently specific application, he can use a step-by-step complaint in accordance with Section 254 of the German Code of Civil Procedure (ZPO) to bring an action for information upstream of his actual complaint in order to enable the exact description of his complaint.

The law provides for several types of claims for action: The performance action is aimed at the plaintiff providing a service, such as the surrender of an item or the fulfillment of a monetary claim. The declaratory action ( § 256 ZPO) serves to determine the existence or non-existence of a legal relationship, such as a claim. The design action finally amends an existing legal situation, such as the dissolution of a commercial company .

The application was lodged with the court has the consequence that litigation pending is. When the statement of claim is served on the defendant in accordance with § 166 - § 190 ZPO, the subject of dispute referred to in it becomes pending . From a procedural point of view, according to Section 261 (3) No. 1 ZPO, this means that no further action can be brought with the same subject matter. The perpetuatio fori also begins with lis pendens . In material terms , the existence of a pending lawsuit in accordance with Section 204 (1) No. 1 BGB prevents the statute of limitations of the claim being brought. In accordance with Section 167 of the German Code of Civil Procedure, the suspension begins with the filing of the lawsuit, provided that service is due soon. Finally, the lis pendens leads to the occurrence of a more stringent liability of the opposing party, for example according to § 292 , § 818 Abs. 4, § 987 and § 989 BGB.

Subject of dispute

Through his action, the plaintiff determines the subject of the dispute, which forms the content of the process in accordance with Section 261 (1) ZPO. Since the court according to Section 308 (1) ZPO may not go beyond the plaintiff's application, the subject of the dispute also limits the scope of the process. Finally, in accordance with Section 322 (1) ZPO, it stipulates the extent to which the final decision of the court becomes final.

The law does not define the subject of the dispute. The historical legislature assumed that the subject of the dispute corresponds with the substantive legal claim . This is also the starting point for modern material law theory, which equates procedural and material law claims. The prevailing opinion, on the other hand, defines the subject of the dispute in a purely procedural manner in order to avoid too narrow the subject of the dispute. Within the prevailing opinion, the views are again divided: According to the one-tier concept of the subject of dispute, which is partially represented, the subject of dispute is determined solely from the plaintiff's claim. In the opinion of the Federal Court of Justice and the prevailing teaching, this understanding is too broad. Therefore, they assume that the subject of the dispute is composed equally of real life facts and the application for a claim. This understanding is also laid out in Section 253 (2) ZPO, which makes the facts and applications the necessary prerequisites for a lawsuit.

Change of lawsuit

A change of action exists if the subject of the dispute is changed after the action has been brought. According to Section 263 of the German Code of Civil Procedure (ZPO), this presupposes that the defendant consents to the amendment to the complaint or that the court considers the amendment to be relevant. Section 264 of the German Code of Civil Procedure (ZPO) exempts certain cases from these prerequisites for procedural reasons, such as the extension of the application for a claim.

Appropriateness is given if the litigation material obtained so far also remains a usable basis for decision-making for the amended complaint and the approval promotes the final settlement of the legal dispute. The consent is a procedural act that is presumed for reasons of legal certainty in accordance with Section 267 of the German Code of Civil Procedure (ZPO) if the defendant engages in the amended complaint on the matter.

If consent has not been given and the court denies that it is relevant, the prevailing opinion is that it rejects the amended complaint as inadmissible by means of a trial judgment , while the original complaint remains pending.

Objective accumulation of lawsuits

The objective accumulation of actions enables several disputes to be negotiated within one proceeding. According to § 260 ZPO, this is possible if the parties are identical, the court is competent for all claims and all claims are asserted with the same type of process. Furthermore, there may be no connection ban, for example according to Section 578 ZPO, Section 126 Paragraph 2 FamFG or Section 179 Paragraph 2 FamFG.

Procedural claims can be cumulative but also possibly (alternatively). A distinction is made between real (if not A, then B) and fake auxiliary requests (if A, then B). As an additional prerequisite for the accumulation of contingent actions, the prevailing view is that the main and auxiliary requests must have an economic or legal connection. In the literature, this requirement is often tightened: the main and auxiliary requests must be aimed at the same goal, one view even requires that both be mutually exclusive.

The dispute over jurisdiction is calculated in the accumulation of actions according to § 5 ZPO by adding the claims. If the objective accumulation of actions is inadmissible, the proceedings are separated according to Section 145 (1) ZPO.

Preparation of the main appointment

After the court has checked the essential procedural requirements, such as party and litigation capability, and confirmed their existence, it decides at its discretion , in accordance with Section 272 (2) ZPO , whether a written preliminary procedure ( Section 276 ZPO) or an early first appointment ( § 275 ZPO) is to be scheduled. In the written preliminary proceedings, the court asks the defendant to indicate that he is ready to defend himself and to comment on the matter. In the early first appointment, which can also be the main appointment, the dispute is negotiated with the parties. Both procedures serve to speed up the procedure by clarifying the facts at an early stage.

In addition, the court can take further measures to prepare the process. According to Section 273 (2) ZPO, for example, he can request the parties to add to their written pleadings and order them to appear. § 358a ZPO still gives him the opportunity to collect evidence.

According to Section 278 (1) ZPO, the court should seek an amicable settlement of the legal dispute or individual points of dispute in every stage of the proceedings. For this purpose, the oral hearing is generally preceded by a quality negotiation in accordance with Section 278 (2) sentence 1 ZPO .

Hearing

According to Section 128 (1) of the German Code of Civil Procedure (ZPO), the parties will negotiate the legal dispute orally in court. The oral hearing is an essential element of the process, which is used to fully discuss the case. After in § 169 laid down S. 1 GVG public principle of the hearing loss of generality is basically freely accessible. Its content forms the basis of the judicial decision. The great importance of the oral hearing for the procedure shows the principle of orality applicable in civil proceedings . The parties can, however, waive an oral hearing in accordance with Section 128 (2) ZPO. In proceedings before the local court, the value of which in dispute does not exceed EUR 600, the judge may also waive an oral hearing in accordance with Section 495a of the German Code of Civil Procedure, provided that the parties do not insist on such.

A date for the oral hearing should only be set by the court if the plaintiff has paid the process fee or an advance payment as an advance on the court costs .

At the beginning of the oral hearing, the parties submit their respective applications in accordance with Section 137 (1) ZPO. According to the disposition maxim, these are binding for the court, so that its decision may not go beyond the application (Latin ne ultra petita ). The further course of the hearing is directed by the court. In accordance with Section 136 of the German Code of Civil Procedure (ZPO), on the one hand, it fulfills formal tasks, such as opening and closing the negotiation as well as granting and withdrawing the word. On the other hand, in accordance with Section 139 of the German Code of Civil Procedure (ZPO) , it discusses the matter in the proceedings with the parties who disputed the admissibility and merits of the claim during the hearing. For example, it asks questions, helps with the formulation of applications and works towards the full discussion of the case.

Since the parties determine the content of the civil process, it is up to them to determine the truth. The court therefore basically bases its decision only on the facts presented by the parties and does not conduct its own investigations.

According to § 282 ZPO, the parties should contribute to accelerating the process of their own accord. This is an expression of the concentration principle , according to which excessively long procedures should be avoided. In order to promote this goal, the parties should, in particular, introduce means of attack and defense into the process as quickly as possible. If a party delays bringing in litigation material without excuse, it will no longer be heard in court in accordance with § 296 ZPO . Submissions made after the oral hearing are also fundamentally disregarded in accordance with Section 296a of the German Code of Civil Procedure ( ZPO) in the court's decision. An application for a change of date submitted at short notice with the intention of delaying the process can be rejected as a legal abuse.

Evidence

If a decisive fact is disputed between the parties, the court will raise evidence of this. According to Section 279 (2) of the ZPO, the taking of evidence should immediately follow the oral hearing. In accordance with Section 355, Paragraph 1, Sentence 1 of the German Code of Civil Procedure (ZPO), evidence is collected immediately before the trial court; So the principle of immediacy applies .

The evidence presupposes that the party obliged to provide evidence offers suitable evidence. For this purpose, witness interrogations , expert reports , documentary evidence , party interrogation and inspection come into question. In principle, the burden of proof lies with the party benefiting from a fact. According to § 286 ZPO , the court is free to evaluate evidence . If an assertion relevant to the decision can neither be proven nor refuted, the court decides on the basis of the burden of proof.

Once the taking of evidence has ended, the oral hearing is resumed in order to continue negotiating the legal dispute, in particular with a view to the knowledge gained through the taking of evidence. After the case has been fully discussed, the hearing will be closed in accordance with Section 136 (4) ZPO.

Defense acts of the defendant

The defendants are to ward off the relief sought open the possibilities for its part with its own claim against the plaintiff offset or even yourself to go on the offensive and a counterclaim to rise.

Process offsetting

If an offset is carried out in the process, it is called a process offset. As a double fact, it is twofold: on the one hand, procedural act , on the other hand, substantive declaration of intent within the meaning of Section 388 sentence 1 BGB.

Often the defendant does not want to lose his claim by offsetting and therefore only offsets as an alternative: For this purpose, he makes offsetting subject to the condition that he does not penetrate his primary defense, for example the non-existence of the claim; this is called contingent offsetting . Although the offsetting according to § 388 sentence 2 BGB is unconditional, there is still agreement in jurisprudence and teaching that the contingent offsetting is possible. There are different justifications for this in the literature: It is sometimes assumed that the eventual set-off contains a condition in the legal sense, since the judge's decision is legally established from the outset, i.e. the case only allows one correct decision anyway. According to another opinion, it is a legal institution of its own kind, to which § 388 sentence 2 BGB does not apply. Finally, it is argued that § 388 sentence 2 BGB should be reduced teleologically : Although contingent offsetting is a condition, the purpose of the norm - protecting the opponent of offsetting against legal uncertainty - is ineffective in litigation offsetting.

If the court rejects the set-off, for example because of a delay, it would appear unreasonable to consider the set-off to be materially effective. According to the prevailing opinion, the offsetting is conditioned by the fact that the court considers it admissible.

It is also controversial whether the offsetting claim becomes pending as a result of the offsetting process. This is supported by one view on the grounds that the defendant is asking the court to rule on his claim. The Federal Court of Justice and large parts of the literature do not follow this, however, as this prevents the defendant from making the claim for offsetting in a second process. The danger of contradicting decisions can be prevented by § 148 ZPO.

In order to avoid that the defendant offsets with invented claims in order to delay the process, the court can issue a conditional judgment in accordance with § 302 ZPO. Both in the case of unsuccessful and successful offsetting, the legal force also extends to the claim submitted for offsetting according to Section 322 (2) ZPO.

Counterclaim

The counterclaim is a new independent lawsuit with a new subject matter which the defendant brings against the plaintiff after the plaintiff's action has become pending. For them, the prerequisites for the assessment must be available independently. According to § 5 Hs. 2 ZPO, the amount in dispute is to be calculated separately for the factual jurisdiction. According to the prevailing doctrine, the local jurisdiction is extended to include a further special place of jurisdiction by § 33 ZPO. According to another view, which is also shared by the BGH, § 33 ZPO sets an additional procedural requirement, according to which the counterclaim is only admissible if it is related to the first lawsuit.

End the litigation in the first instance

The procedure can be terminated in the first instance in a number of ways.

Acknowledgment and waiver

In the case of admission, the defendant declares in the process that the claim alleged by the plaintiff exists. As a result, the court convicts the defendant without further examination of the substantive legal situation according to § 307 sentence 1 ZPO according to the application. If the defendant declares that the claim only partially exists, a partial acknowledgment judgment is issued. The recognition of the ability to postulate is required as an act of effect. The acknowledgment is to be distinguished from the confession according to § 288 ZPO, which only refers to facts; it is also to be distinguished from the admission of guilt according to § 781 BGB, which is a contract under civil law.

For the consequences of costs, § 93 ZPO must be observed: Basically, the loser bears the costs of the process according to § 91 ZPO. However, if the defendant has given no cause for complaint at all and he immediately recognizes the claim of the plaintiff in the process, it would appear unreasonable to order him to pay the costs, since the plaintiff has initiated legal proceedings without any reason. Section 93 ZPO therefore obliges the plaintiff to bear the costs of the proceedings on the basis of the inducement principle. The plaintiff also bears the costs if the defendant acknowledges the defendant claim as soon as the plaintiff's submission is conclusive or the claim is admissible or well founded during the process.

As a reflection of the acknowledgment, the plaintiff can waive his action according to § 306 ZPO . As a result, a waiver judgment is issued, which determines that the claimed claim does not exist.

Withdrawal of action

The plaintiff can unilaterally withdraw his complaint and thereby terminate the proceedings until the defendant enters into the matter at the oral hearing. According to Section 269, Paragraph 3, Sentence 1 of the German Code of Civil Procedure (ZPO), this means that the lawsuit is treated as if it had never become pending. In contrast to the waiver of the action, there is therefore no legal force against a later action. Motives for the withdrawal of the action can be, for example, the deteriorated evidence or the defendant's lack of assets.

After the start of the oral hearing, the withdrawal of the action in accordance with Section 269 (1) ZPO generally requires that the defendant consents to it. This is necessary because the defendant has an interest in a dismissal decision in the matter, as this denies the plaintiff the opportunity to litigate again on the same matter in dispute.

As a result of the withdrawal of the action, the plaintiff generally bears the legal costs. Exceptionally, however, the obligation to bear the costs can also affect the defendant, especially in accordance with Section 269 (3) sentence 3 of the ZPO.

Completion declaration

In the course of a process, events can occur that make the process that has already started superfluous. This is the case, for example, if the defendant fulfills the claimed claim ( Section 362 BGB), the parties conclude a settlement , or the defendant nullifies the claim by offsetting ( Section 389 BGB). Since the merits of the action are based on the facts of the case at the last hearing, the fulfillment before the conclusion of the hearing leads to the unfounded action, so that the plaintiff loses the process. In order to avoid the associated obligation to bear the costs, the legal dispute can be declared settled. This can be done in agreement by both parties or only by the plaintiff.

Double-sided declaration of completion

Section 91a of the German Code of Civil Procedure (ZPO) provides for the possibility for the parties to terminate the process by virtue of their freedom of disposition by mutual declaration of completion.

The legal nature of the bilateral declaration of completion is controversial in legal literature. According to one view, it is a privileged form of the withdrawal of the action. According to another opinion, it represents a procedural agreement between the parties. Furthermore, it is argued that it consists of a waiver by the plaintiff and a waiver of a dismissal judgment by the defendant. The predominant view is that these are procedural declarations of consent to the procedure without judgment break up.

The parties are exempted from the requirement to use a lawyer in the oral hearing, which follows from Section 78 (3) ZPO in conjunction with Section 91a ZPO. The completion declarations can also be submitted before lis pendens, even if - strictly speaking - there is no legal dispute at this point in time.

If both parties declare completion, the main thing is no longer pending. As a result, the court decides in accordance with Section 91a, Paragraph 1 , Clause 1 of the German Code of Civil Procedure (ZPO) at its reasonable discretion by way of a resolution who bears the legal costs incurred to date. In doing so, it carries out a summary examination of the main issue and takes into account who would have been charged with the costs of the process in the case of the previous dispute and whether the defendant gave cause for complaint. The court does not make a decision on the matter, which is why the plaintiff can in principle sue again on the same subject of dispute. However, if the defendant agrees to settle the dispute, trusting in the final settlement of the dispute, the plaintiff can be countered with an objection of malice in the event of a breach of good faith .

Unilateral declaration of completion

If the defendant objects to the declaration of completion within two weeks of the delivery of the brief, the declaration of completion remains unilateral. The unilateral declaration of completion is not regulated by law, but is recognized in legal practice and teaching.

The legal nature of the unilateral declaration of completion is controversial. In some cases, as with the mutual declaration, this is seen as a privileged form of withdrawal of the action. According to another opinion, it is an act of effect that is aimed at establishing that the court has settled the matter. According to the prevailing view in doctrine and practice, however, it represents a legal amendment that is permissible according to § 264 No. 2 ZPO: The claim is changed to the effect that it is to be established that the claim was permissible and well-founded up to the occurrence of the settling event.

As a result, the different views agree that the unilateral declaration of execution has the consequence that the court will now decide on the chances of success of the action before execution. If this was originally admissible and justified and if settlement has occurred, it charges the defendant to pay the costs in accordance with Section 91 of the German Code of Civil Procedure, otherwise the plaintiff.

What is disputed is the amount in dispute from a unilateral declaration of settlement: The prevailing opinion applies the costs of the legal dispute that have been incurred so far. A contrary view is based on the original amount in dispute, as the court is reviewing the original claim. A third view halves the amount in dispute, since it is reduced by the fact that an admissible declaratory judgment, unlike a performance judgment, is not enforceable.

Process comparison

If the subject of the dispute is subject to the disposition of the parties, they have the option at any time to settle the dispute amicably by way of a settlement. Pursuant to Section 278 (1) ZPO, the court should work towards this during the entire procedure.

In accordance with Section 779 of the German Civil Code (BGB), the settlement is a contract through which the parties resolve a legal dispute by giving in to each other. The settlement is not regulated separately in civil procedure law; However, Section 794 (1) No. 1 ZPO presupposes the existence of the litigation settlement as a special form of the civil-legal settlement. The litigation settlement is a civil law contract with direct procedural effect. It is therefore both a contract and a process act, so it has a dual nature.

The dual nature of the process comparison means that it must meet both procedural and material requirements in order to be effective. Therefore, it can be ineffective for procedural as well as substantive reasons. The first is, for example, the lack of the necessary logging in accordance with Section 160 (3) No. 1 ZPO. The latter includes, for example, the challenge . If a settlement is void from the start or with ex-tunc effects, the proceedings are deemed not to have ended and will be continued. The procedural situation is controversial if the settlement is subsequently omitted with ex nunc effect, for example as a result of a resignation . The Federal Labor Court and large parts of the literature advocate the continuation of the dispute before the court dealing with the old process, since it is already familiar with the dispute and there cannot be an end to the process without a settlement. In contrast, the Federal Court of Justice assumes that the settlement, despite its ineffectiveness, has a process-ending function, so that a new procedure must be started.

judgment

The court decides on the legal dispute through judgment following an oral hearing. The judgment is usually issued after the oral hearing has been held. According to § 300 ZPO, a final judgment is issued as soon as the matter is ready for decision. This ends the first instance. If the court considers the action admissible and well-founded, it will uphold it, otherwise it will reject it by means of a process or factual judgment . According to Section 318 of the German Code of Civil Procedure, the judgment is binding for all parties involved and can only be subsequently changed by the court in a few legally regulated exceptional cases.

If the court only makes a final decision on part of the application, this is done in the form of a partial judgment in accordance with Section 301 ZPO . If the court makes a binding decision on preliminary questions that are necessary to clarify the subject matter of the dispute, this is done in the form of an interim judgment ( Section 303 ZPO). A practically common form of interim judgment is the basic judgment ( § 304 ZPO), through which the existence of a claim is basically decided.

decision

A court can make a decision on a legal issue without an oral hearing taking place. A decision is made to order the taking of evidence, dismiss an appeal and refer a legal dispute to another court.

Default procedure

If a party does not appear on the date for the oral hearing or does not negotiate by the end of the oral hearing ( Section 333 ZPO), it is in default . If a lawyer is required, the presence of the lawyer is required in order to avoid default.

If the plaintiff defaults, his action will be dismissed at the request of the defendant ( Section 330 ZPO). If the defendant is in default, a fictitious confession is triggered by Section 331 (1) ZPO, according to which the plaintiff's submissions are deemed to have been admitted. As a result, the judge examines the suit for its conclusiveness : If the suit is conclusive, a default judgment is issued that upholds the suit. However, if the action is inconclusive, a judgment dismissing the action is issued. In the cases of Section 335 ZPO, no default judgment may be issued.

The parties can appeal against a default judgment within two weeks after delivery of the default judgment in accordance with § 338 , § 339 ZPO to the trial court. According to Section 342 of the German Code of Civil Procedure (ZPO), a permissible objection has the consequence that the process is returned to the position before the default judgment. If the complainant is also in default on this date, a second default judgment is issued , against which only an appeal is permitted in accordance with Section 514 (2) sentence 1 ZPO.

costs

In the taxation of costs proceedings ( § 103 - § 107 ZPO), the Court finds, in what amount a party to the other extrajudicial costs, such as legal fees , paid as an advance court costs shall reimburse travel costs and expenses. The question of the cost debt, i.e. who has to bear what proportion of the costs, is determined in the basic cost decision , unless the parties settle the costs in a settlement and make a court decision superfluous. The actual amount of the court costs to be paid is determined in the cost approach according to § 19 GKG. Overpaid costs as part of an advance will be reimbursed.

In order to reduce the cost burden for the needy and thereby make it easier for them to prosecute, § 114 ZPO opens up the possibility of legal aid. This is an expression of the requirement following from Art. 20 and Art. 3 GG that everyone has equal access to effective legal protection. For this purpose, it opens up the possibility of exempting a party from the costs of the proceedings or of limiting them.

Legal aid proceedings are initiated by applying to the trial court. It is permitted if the applicant is unable to bear the costs of the legal dispute due to his economic circumstances. According to Section 114 (1) sentence 1 ZPO, the application is successful if the legal remedy sought has a chance of success and the prosecution does not appear willful.

Remedies

Legal remedies are procedural acts that enable a court decision to be corrected. A special group within the legal remedies are the legal remedies, which include in particular appeal and revision . These develop a devolutive and suspensive effect . The former justifies the jurisdiction of a higher court ( iudex ad quem ), the latter prevents the contested decision from becoming formal.

If a court uses a wrong form of decision, the question arises for the person making the appeal which appeal he should lodge: that against the actually correct form of decision or that against the form of decision actually chosen. According to the most-favored nation principle , he can freely choose between the two options. However, the party does not have any legal remedies that would be excluded even if the correct form of decision had been chosen immediately.

vocation

According to Section 511 (1) ZPO, the appeal serves to correct a first-instance final judgment. For this purpose, the court of appeal clarifies the facts again to a limited extent and subjects the contested judgment to a legal review. The scope of the examination is determined by Section 513 (1), Section 529 (1), and Section 531 (2) ZPO. Section 528 ZPO binds the appellate court to the appellant's request, which is why a reformatio in peius is excluded.

The regional court for district court judgments and the higher regional court for regional court judgments act as courts of appeal. As a result of the ZPO reform in 2002, the higher regional courts were also given jurisdiction over legal disputes with a foreign element.

The admissibility of the appeal presupposes that the value of the subject of the complaint exceeds 600 euros or the court of origin allows the appeal. The subject of the complaint is the difference between the first-instance judgment and the appeal request. The appeal must be permitted in accordance with Section 511 (4) of the ZPO if the matter is of fundamental importance, a decision by the appellate court is required for further legal training or if uniform case law is required to ensure a decision. A legal matter is of fundamental importance if it raises a legal issue that is relevant to the decision and requires clarification, which has not yet been decided by the Federal Court of Justice and which can become just as important for the decision in an indefinite number of other cases. In the opinion of the BGH, there is a need for further training in the law if the individual case gives rise to drafting guidelines for the interpretation of legal provisions or to fill in legal loopholes; the practical difference between this variant and the characteristic of fundamental importance is slight. The characteristic of ensuring uniform jurisdiction is fulfilled if the court of first instance deviates from the jurisdiction of a court of equal rank or of a higher-ranking court. However, according to the criticized view of the BGH, no approval should be necessary if a court only exceptionally disregards the highest court rulings in individual cases.

The appeal must be submitted in due form and in due time ( § 517 , § 519 ZPO) and justified ( § 520 ZPO). The justification must reveal a substantiated discussion of the justification of the first-instance judgment. All reasons supporting the decision must be attacked.

Finally, the admissibility of the appeal presupposes that the appellant is adversely affected by the challenged judgment . This is true when the judgment falls short of its request.

If the appeal is well founded, the appellate court decides on the legal dispute according to § 538 Paragraph 1 ZPO itself. In exceptional cases, it overturns the judgment of the court of first instance and refers the legal dispute back to it in accordance with Section 538 (2) ZPO.

Revision

According to Section 542 of the German Code of Civil Procedure (ZPO), appeals can be challenged before the Federal Court of Justice. According to § 545 ZPO, the judgment in the appeal procedure is only checked for legal errors, so that a factual review does not take place, unlike the appeal.

The admissibility of the appeal presupposes that the appellate court or the Federal Court of Justice approves the appeal on appeal against their non-admission . The non-admission complaint is admissible if the party who wants to appeal has an amount of more than 20,000 euros. The revision is form and time-bound in accordance with § 548 , § 549 ZPO and must be justified in accordance with § 551 ZPO. After all, the auditor must be weighed down by the challenged judgment.

If the appeal is justified, the court of appeal generally refers the legal dispute back to the court of appeal, which decides again on the case, taking into account the opinion of the court of appeal. In exceptional cases, it decides itself on the matter in accordance with Section 563 (3) ZPO.

complaint

Revision and appeal are only permitted against judgments and are therefore ruled out in the event of a decision by resolution . Instead, resolutions can be challenged by means of a complaint. The ZPO differentiates between immediate complaints and legal complaints .

Immediate complaint

Immediate complaint is permissible in accordance with Section 567 of the German Code of Civil Procedure (ZPO) if the law so requires, for example in Section 387 (3) of the German Code of Civil Procedure for the dispute about the right to refuse to testify . It is also permissible if a request relating to the procedure is rejected without an oral hearing, for example a rejection request according to § 42 ZPO.

The immediate complaint must be submitted to the court of origin or appeal court within an emergency period of two weeks after delivery, but no later than five months after the decision has been announced ( Section 569 ZPO). It should be justified according to § 571 ZPO.

The court of first instance has the option to remedy the complaint ( Section 572 (1) ZPO). If it does not do so, the matter is submitted to the appellate court: the latter rejects the appeal if it is inadmissible or rejects it if it is unfounded. If the appeal is well founded, the appeal court can either decide itself or, in accordance with Section 572 (3) ZPO, leave the decision to the court of origin.

Legal complaint

The appeal shall be in accordance with § 574 admissible ZPO, if the law so provides, such as rejection of the appeal by § 522 paragraph 1 No. 4 ZPO -.. Always without value limit of § 26 no. 8 EGZPO - or it has been approved by the court. It can be approved if the requirements of Section 574 (2) ZPO are met. The appellate court is bound by the admission, unless the appeal is already inadmissible by law, for example according to § 238 Abs. 3 ZPO, § 321a Abs. 4, S. 4 ZPO and § 522 Abs. 3 ZPO.

The appeal on a point of law must be lodged with the appeal court and substantiated within an emergency period of one month after the contested decision has been served ( Section 575 ZPO).

The complaint will be rejected if it is inadmissible, if it is unfounded it will be rejected. It is justified if the contested decision contains a violation of the law and the decision is based on it. It follows from Section 577, Paragraph 2, Sentence 1 of the ZPO that the prohibition of reformatio in peius also applies in legal complaints proceedings .

Hearing complaints

The hearing complaint (also: hearing complaint) can be raised in accordance with § 321a ZPO in order to complain of a violation of the right to be heard under Article 103 (1) of the Basic Law. A considerable part of the literature intends to apply the hearing complaint analogously to cases in which other essential procedural principles have been violated.

The hearing complaint has neither devolutive nor suspensive effect. It serves to realize the fundamental right to a right to be heard ( Article 103, Paragraph 1 of the Basic Law) and must be lodged before a constitutional complaint about a hearing violation is filed. However, it does not serve to reprimand an incorrect legal opinion by the court if the court has granted a fair hearing beforehand and has taken the arguments of the parties into account in the decision. Only a constitutional complaint is permitted.

Legal force

Judicial decisions grow into legal force. A distinction is made between formal and material legal force.

Formal and material legal force

A judgment in accordance with Section 705 sentence 1 ZPO becomes legally binding as soon as it can no longer be contested through an appeal or legal remedy.

Material legal force ( Section 322 (1) ZPO) means, according to the procedural legal force theory that prevails today, that every future judge is bound in terms of content to the findings made in the judgment. Is controversial within the procedural legal force doctrine in turn whether only later a different decision is forbidden (procedural bond theory) or whether additional new hearing on the same subject-matter is not permitted (as the ruling ne bis in idem - teaching). The substantive legal force doctrine, according to which the judgment forms the substantive legal situation as the reason for its origin and expiration, is hardly represented.

Objective limits of legal force

The objective limits of the legal force are described in Section 322 (1) ZPO. According to this, a judgment becomes final to the extent that it decides on the subject of the dispute.

Subjective limits of legal force

Who must allow the material legal force to apply against you is determined by the subjective limits of the legal force. These are only regulated fragmentarily in the law.

According to Section 325 (1) ZPO, the judgment initially acts against the parties to the legal dispute as well as against their legal successors and intermediaries . According to Section 325 (2) of the German Code of Civil Procedure (ZPO), the provisions of good faith acquisition apply accordingly. According to the prevailing opinion, the judgment does not bind the legal successor if he is in good faith with regard to the substantive legal appearance and the absence of lis pendens.

If the disputed thing is sold during the process, this has no influence on the process according to Section 265 (2) sentence 1 ZPO. The party therefore continues to litigate the now foreign law in its own name as a legal advisor for the new right holder. If the defendant sells the thing, his legal successor cannot take over the process and must accept the result of the process against him. The plaintiff can then enforce against the legal successor by changing the title according to § 727 ZPO. According to the prevailing opinion, § 265 (2) ZPO applies to a sale by the plaintiff with one restriction: He must convert the claim for payment to the legal successor; in this respect the sale of the disputed matter is relevant , which is why one speaks of relevance theory . An exception applies according to Section 265, Paragraph 3 of the Code of Civil Procedure if the plaintiff sells the disputed matter and the legal force of the judgment does not affect the legal successor, Section 325 of the Code of Civil Procedure: The defendant can then object that the plaintiff lacks the legal authority .

In the case of arbitrary litigation, the legal force of the judgment applies for and against the right holder. In the case of legal litigation, the prevailing opinion differentiates between exclusive and competitive litigation: In the first case, the right holder cannot assert his rights himself, which is why the litigation is in his interest, which is why the legal force acts against him. The situation is different if litigators and right holders can assert the right, for example in cases of § 432 , § 1011 and § 2039 BGB.

Breaches of legal force

In a few exceptional cases, the legal force can be broken. With a successful nullity or restitution action , a legally concluded procedure according to Section 578 (1) ZPO is resumed for a new decision . A judgment can be changed retrospectively by means of an action for amendment pursuant to Section 323 of the German Code of Civil Procedure (ZPO) if the factual basis subsequently changes significantly. According to the case law, enforcement can ultimately be prevented by Section 826 of the German Civil Code if the plaintiff steals a title in an intentional and immoral manner.

Clause procedure

The clause procedure follows the discovery procedure. This serves to prepare for foreclosure. In order to carry out this, the obligee needs an enforceable copy of the enforcement order . This will be given to him at the request of the trial court as part of the clause procedure. The ZPO provides for special legal remedies for the clause procedure, such as the clause reminder ( § 732 ZPO) and the clause counterclaim ( § 768 ZPO).

Enforcement proceedings

If the plaintiff has an enforceable title against the debtor, he can have it enforced in enforcement proceedings with the help of state organs. He is dependent on this because of the state's monopoly on the use of force.

Special procedures

Dunning procedure

The dunning procedure ( § 688 - § 703d ZPO) is used to quickly obtain an enforcement title against the debtor of a quantified monetary claim. It is initiated in accordance with Section 690 of the German Code of Civil Procedure (ZPO) by means of a dunning request in which the applicant specifies the parties, court and required service. According to Section 689 (2) sentence 1 ZPO, the court at the general place of jurisdiction of the applicant is locally responsible . According to Section 689, Paragraph 3, Sentence 1 of the German Code of Civil Procedure, however, the state governments are authorized to concentrate at a local court.

If the formal requirements of § 690 ZPO are met and there are no obstacles according to § 691 ZPO, a reminder is issued against the respondent with the request to pay within two weeks or to raise an objection. If this contradicts, it comes to a contentious legal procedure according to § 696 ZPO. Even if the respondent immediately recognizes in the litigation, the prevailing opinion is that he can no longer benefit from the privilege of Section 93 of the ZPO. If the respondent does not object, an enforcement order will be issued, which is an enforcement title according to Section 794 (1) No. 4 ZPO. Since the decision according to Section 700 (1) ZPO is equivalent to a default judgment, however, an objection according to Section 338 ZPO is permissible.

A peculiarity applies if the defendant who filed an objection against the enforcement order is in default in the objection date. In this case, the court will issue a second technical default judgment . In accordance with Section 700 (6) of the German Code of Civil Procedure (ZPO), it must, as an exception, check the conclusiveness of the asserted claim, as this has not yet happened in the dunning procedure. As an exception, the defendant can therefore attack the second technical default judgment with an appeal and justify this by stating that the action is inconclusive.

If the creditor deliberately sneaks an incorrect enforcement order and the enforcement appears grossly offensive, the debtor is entitled, in the opinion of the BGH, to refrain from enforcement under Section 826 BGB.

Provisional legal protection

With the arrest and the temporary injunction ( § 916 - § 945 ZPO) , the ZPO provides for two urgent proceedings which serve to provisionally regulate a disputed legal relationship . The obligee can carry out these proceedings if it cannot be expected of the applicant to await the result of a regular legal action.

Independent evidence procedure

With an independent evidence procedure ( § 485 - § 494a ZPO) evidence can be secured, even before a legal dispute if the evidence threatens to be lost.

Document, bill of exchange and check process

The document, bill of exchange and check process makes things easier for the plaintiff compared to the general litigation procedure if it is sufficient to present the respective document as evidence to demonstrate his claim. In the documentary process, the defendant's defense options are limited to those facts that can in turn be proven with documents.

literature

Legal materials

  • Karl Hahn, Eduard Stegemann (ed.): The entire material on the Reich justice laws . 2nd Edition. tape 2 : Materials on the Code of Civil Procedure . Scientia-Verlag, Aalen 1983, ISBN 3-511-06983-1 (new printer of the Berlin edition 1881.).

Historical textbooks

  • Oskar Bülow: The doctrine of procedural defenses and the process requirements . 1868. New edition 2007, ISBN 978-3-8364-3521-5 .
  • Oskar Bülow: The right to confess. A contribution to the general theory of legal acts. 1899. New edition 2007, ISBN 978-3-8364-3520-8 .
  • Konrad Hellwig: Textbook of German civil procedure law . Scientia, 1980, ISBN 3-511-03220-2 (first edition: 1903, reprint).

Textbooks

  • Jens Adolphsen: Civil Procedure Law . 5th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2223-5 .
  • Wolfgang Grunsky, Florian Jacoby: Civil Procedure Law . 15th edition. Franz Vahlen, Munich 2016, ISBN 978-3-8006-5238-9 .
  • Burkhard Hess, Othmar Jauernig, Friedrich Lent: Civil Procedure Law: A Study Book . 30th edition. CH Beck, Munich 2011, ISBN 978-3-406-60680-9 .
  • Wolfgang Lüke: Law of civil procedure: criminal proceedings, foreclosure, European civil procedure law . 11th edition. CH Beck, Munich 2020, ISBN 978-3-406-72442-8 .
  • Christoph Paulus: Civil Procedure Law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 .
  • Rainer Oberheim: Successful tactics in civil litigation . 7th edition. Luchterhand, Cologne 2017, ISBN 978-3-472-08950-6 .
  • Petra Pohlmann: Civil Procedure Law . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-72405-3 .
  • Leo Rosenberg, Karl Heinz Schwab, Peter Gottwald: civil procedure law . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-71085-8 .
  • Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 .

Magazines

Web links

Wiktionary: civil law  - explanations of meanings, word origins, synonyms, translations
Wikibooks: Civil Procedure Law in the 2nd State Examination  - Learning and Teaching Materials
Wikibooks: Substantive civil law in the 2nd state examination  - learning and teaching materials

Individual evidence

  1. ↑ Eberhard Schilken: Judicial Constitutional Law . 4th edition. Carl Heymanns, Cologne 2007, ISBN 978-3-452-26312-4 , Rn. 42.
  2. ↑ Eberhard Schilken: Judicial Constitutional Law . 4th edition. Carl Heymanns, Cologne 2007, ISBN 978-3-452-26312-4 , Rn. 37.
  3. ↑ Heinz Bamberger: The reform of the code of civil procedure - an impact control . In: Journal for legal policy 2004, p. 137. Reinhard Greger: The ZPO reform - 1000 days after . In: JuristenZeitung 2004, p. 805. Michael Huber: Procedures and judgments of the first instance according to the Civil Procedure Reform Act (ZPO-RG). In: Juristische Schulung 2002, p. 483.
  4. ↑ Eberhard Schilken: Judicial Constitutional Law . 4th edition. Carl Heymanns, Cologne 2007, ISBN 978-3-452-26312-4 , Rn. 2.
  5. ↑ Jens Adolphsen: Civil Procedure Law . 5th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2223-5 , § 2, marginal no. 1. Roman Kehrberger: The Materialization of Civil Procedure Law , Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-158276-9 , pp. 299-318. Andreas Voßkuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The general right to justice . In: Legal Training 2014, p. 312.
  6. ^ Roman Kehrberger: The materialization of civil procedure law . Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-158276-9 , pp. 294-299 .
  7. ↑ Hans Gaul: On the question of the purpose of the civil process . In: Archiv für civilistische Praxis 168 (1968), p. 27 (46).
  8. ↑ Hans Gaul: On the question of the purpose of the civil process . In: Archiv für civilistische Praxis 168 (1968), pp. 27 (57-64).
  9. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 17. Götz Schulze: Before Section 50 , marginal no. 17-18 . In: Bernhard Wieczorek, Rolf Schütze (ed.): Code of civil procedure and ancillary laws. Vol. 2nd part. 1: §§ 50-77 . 4th edition. De Gruyter, Berlin 2017, ISBN 3-11-024836-0 .
  10. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 82.
  11. ^ Leo Rosenberg, Karl Heinz Schwab, Peter Gottwald: civil procedure law . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-71085-8 , § 43, Rn. 13.
  12. ↑ BGHZ 146, 341 . BGHZ 151, 204 .
  13. ^ Johann Kindl: Company Law . Nomos, Baden-Baden 2011, ISBN 978-3-8329-1995-5 , § 5, marginal no. 10. Jochen Markgraf, Arne Kießling: Societies as parties in civil proceedings . In: Juristische Schulung 2010, p. 312 (314).
  14. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 84.
  15. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 267-270.
  16. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 74.
  17. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 272-273.
  18. ↑ Hans-Martin Pawlowski: The civil law process standing . In: Juristische Schulung 1990, p. 378.
  19. ↑ BGHZ 4, 153 . BGH, judgment of June 10, 2005, V ZR 235/04 = Neue Juristische Wochenschrift 2005, p. 2622.
  20. ^ Klaus Schreiber: The litigation authority in civil proceedings . In: Jura 2010, p. 750 (752).
  21. ^ BGH, judgment of December 22, 1988, VII ZR 129/88 = Neue Juristische Wochenschrift 1989, p. 1932.
  22. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 36. Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 77-78.
  23. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 275.
  24. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 38.
  25. ^ Christian Alexander: Collective legal protection in civil law and civil procedure law . In: Legal Training 2009, p. 590.
  26. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 276.
  27. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 72-73.
  28. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 86.
  29. ↑ Guido Toussaint: § 78 , 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 . Rolf Schütze: § 78 , Rn. 1. In: Bernhard Wieczorek, Rolf Schütze (Ed.): Code of Civil Procedure and Ancillary Laws. Vol. 2nd part. 2: §§ 78–127a . 4th edition. De Gruyter, Berlin 2014, ISBN 978-3-11-041086-0 .
  30. ↑ Peter Gottwald: Basic problems of the armed union in civil proceedings . In: Legal worksheets 1982, p. 64. Walter Lindacher: The dispute association . In: Juristische Schulung 1986, p. 540.
  31. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 663.
  32. ↑ Götz Schulze: § 59 , Rn. 42. In: Bernhard Wieczorek, Rolf Schütze (Hrsg.): Code of civil procedure and subsidiary laws. Vol. 2nd part. 1: §§ 50-77 . 4th edition. De Gruyter, Berlin 2017, ISBN 3-11-024836-0 .
  33. ^ Leo Rosenberg, Karl Heinz Schwab, Peter Gottwald: civil procedure law . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-71085-8 , § 48, Rn. 11.
  34. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 668.
  35. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 672.
  36. ↑ Burkhard Hess, Othmar Jauernig, Friedrich Lent: Civil Procedure Law: A Study Book . 30th edition. CH Beck, Munich 2011, ISBN 978-3-406-60680-9 , § 82 I, Rn. 2.
  37. ^ Leo Rosenberg, Karl Heinz Schwab, Peter Gottwald: civil procedure law . 18th edition. CH Beck, Munich 2018, ISBN 978-3-406-71085-8 , § 49, Rn. 4th
  38. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 46.
  39. ↑ Stephan Weth: § 62 , 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 .
  40. ↑ Eberhard Schilken: civil procedure law . 7th edition. Franz Vahlen, Munich 2014, ISBN 978-3-8006-4824-5 , Rn. 675.
  41. ↑ Götz Schulze: § 59 , Rn. 35. In: Bernhard Wieczorek, Rolf Schütze (Hrsg.): Code of civil procedure and subsidiary laws. Vol. 2nd part. 1: §§ 50-77 . 4th edition. De Gruyter, Berlin 2017, ISBN 3-11-024836-0 . Stephan Weth: § 62 , Rn. 2. In: Hans-Joachim Musielak, Wolfgang Voit (Ed.): Code of Civil Procedure: ZPO . 15th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5622-6 .
  42. ↑ Martin Schwab: Civil Procedure Law . 5th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4018-0 , Rn. 49-50.
  43. ^ BGH, judgment of March 10, 1988, IX ZR 194/87 = Neue Juristische Wochenschrift 1988, p. 2113.
  44. ↑ Andreas Mayer: The necessary dispute union - a look at the case processing . In: Jura 2015, p. 1095 (1100).
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