Lawsuit

The suit is in civil process of initiation, ie, the application for judicial decision by the plaintiff against the defendant. Also in the proceedings before the administrative, social, labor and tax courts referred to the application instituting the proceedings for a court decision as action. In criminal proceedings, to be collected by the prosecution indictment public action is called before a court.

Germany

The action is through a brief to the court ( in the proceedings before the local courts also to the transcript of the registrar ) and its delivery to the defendant raised ( § 253, paragraph 1 ZPO). Instead of a lawsuit, a request for a court order for payment procedure or an application may be made for a temporary injunction. Furthermore, an action be brought, that the plaintiff makes an application for legal aid and at the same time submit an application to the court.

The appeal shall be filed with the court in several copies (in triplicate mostly ). One version is for the court file. In addition, the defendant and his counsel are delivered the other copies.

Content of the application in accordance with § 253 ZPO in conjunction with § 130 ZPO

Mandatory requirements:

  • Names of the parties;
  • Identification of the local and the competent court;
  • Indication of the subject-matter ( plea and head of claim );
  • Handwritten signature of the applicant or counsel.

The Department of the competent court does not have to be called, unless that should be heard by the Commercial Chamber of the District Court. The assignment of the action to the respective departments is up to the mailing list of the court and depends on the respective organizational chart.

How exactly the plea must be shown in the application, which is in dispute. It is both held that the dispute must be individualized, and that the head of claim must be presented to substantiate. In any case, no consistency of the plaintiff's claim, it is required for the admissibility of the action.

Of the recommendations:

  • Information on the value of the matter in dispute in order to determine the subject matter jurisdiction § 253;
  • Declaration on the composition of the court § 253 (in practice unnecessary, since in contrast to the previously applicable legal position of the single judge ipso jure jurisdiction );
  • Applications that intend to submit at the hearing the plaintiff;
  • Description of evidence § 130

For the plaintiff, it is feasible, coherent carry forward the its head of claim is founded facts already in the application and not only at the hearing and already possible to call the evidence because the court if they would due to late provision delaying the process and the delay is caused by gross negligence of the plaintiff, may reject the appropriate offensive or defensive means ( estoppel ). An estoppel does not affect the admissibility of the action. However, the plaintiff runs the risk of getting dismissed the action as unfounded. If the action is in the application not submitted conclusive, is failure by the defendant, even if the plaintiff's action by another actual argument does fit in the hearing, a decree obstacle for a default judgment before.

Submit an application to adopt, in the case of non-display of defense Already shaft by the defendant a default judgment, recommended already to put in the application. Applications bear the costs and safety performance due to preliminary enforceability concerning are not required because the court also recognizes ex officio.

Legal arguments are not required in the application, because the court knows the law ( " iura novit curia ", Latin for " the court knows the law " ) and on questions of law by the parties or their legal representatives do not need to be taught. In practice, legal submissions are in the application, but not uncommon.

For actions in labor law in the form of provision of § 92 SGG applies.

Lawsuit conditions

The pending court action is only delivered when the German jurisdiction is empowered to decide. In addition, the application must be written in the language of the court (sometimes also German, Sorbian =, ). The applicant has to pay particular advance for the court costs. Unless a conciliation hearing before an arbitrator or magistrate is required, proof of their implementation must be provided as a service requirement. Does the court in first instance not matter jurisdiction, the application suffers from filing defects such as a missing signature or missing of audience, so the pending lawsuit is also not served on the defendant.

Austria

In Austria turns out - in the sense of the above granted, cursory coarse overview of the German legal situation - the situation is similar represents the action is also the summonses set in the "classic " civil process - ie the first pleading, with mainly the dispute and the parties to the proceedings are determined, and with which the plaintiff ( the first court against ) makes known what he for any reason by the defendant desires ( shortened eg: payment of 400,00 €, because the defendant causal, unlawfully and culpably the plaintiff damage has caused at this altitude ). In the act of judgment - related to this procedure - the action has also logically ON (ordinal number ) 1

The standard, in which the application is directly governed, is § 226 ZPO, but also have other standards central to the action.

Amtsgericht Party (law) Security deposit Justice of the Peace
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