Default judgment
A judgment by default under German civil procedure law a court decision that is taken against a party who has not appeared at the hearing having been duly summoned or not negotiated despite appearance to the point. In judicial practice, an application will be accepted on a default judgment analogous to the university cum tempore regularly until 15 minutes after the appointment time. The Austrian equivalent is the default judgment. If in the opinion of the Court, a party prevents fault at the show, the process of its own motion is to adjourn. A default judgment may be waived by written pre-trial, if the defendant does not indicate readiness to defend in time. Instead of a default judgment may - if it has already been discussed in an earlier date for the task - a judgment on the location of the files are requested.
Failure by the defendant
Appears the defendant not to a hearing, so is therefore considered all the arguments raised by the applicant in his application and his other pleadings - with the exception of the presentation of territorial jurisdiction - as granted ( § 331 paragraph 1 sentence 1 ZPO). This applies even if the defendant has denied the plaintiffs argument in an earlier trial. As far as the statement of facts schriftsätzliche the order sought to justify this ( consistency of action ), can be seen after the order sought by default judgment. Because of allegations that at the oral hearing in which the defendant fails, prepared by the plaintiff, the court is prevented from a default judgment to adopt. Here, the parties are to be loaded on a new date.
As far as after the fact argument of the plaintiff a claim is not given within the meaning of the claim ( hesitancy of action ), the action is dismissed by a fake default judgment. A fake default judgment was made only because of indecision or inadmissibility of the action and just not because of default (hence: " inauthentic "). It can only be taken against the plaintiff because the defendant has nothing to do with the hesitancy nor the inadmissibility something. A fake default judgment is issued against the plaintiff, even if he is on site and the defendant in default, because it is a "normal" judgment (for inadmissibility: a process judgment, with hesitation: a final judgment ).
Failure by the written preliminary
If the court has the written preliminary gem. § 276 para 1 CCP arranged, at the request of the plaintiff already then ( without a hearing! ) Endure a default judgment against the defendant if the defendant 's intention to defend itself against the lawsuit, does not show on time ( § 331 para 3 ZPO). This application may be already submitted in the application, which is usually the case.
Failure by the plaintiff
Not appear for hearing, the applicant having been duly summoned or not negotiate down to business ( § 333 ZPO), its action is dismissed without examination ( § 330 ZPO).
Special case: failure by due to lack of audience
In the so-called lawyer process - is a representation by a lawyer mandatory here (cf. § 78 ZPO) - will also be treated as a party did not show up unless they are not a licensed attorney occurs. The party is missing here the so-called of audience, that is, it lacks the ability processual action to give the rather substantial appearance.
Contents of the default judgment
The default judgment consists only of Rubrum and tenor. It requires no writing of the facts and the decision ( § 313b ZPO). An exception applies only if the execution is not expected to take place abroad. Then facts and reasons for decisions must be added, because decisions are not provided with the reasons are very often recognized by the foreign authorities not as a basis for enforcement.
The false default judgment, however, is not a default judgment in this sense. It is made against the present plaintiff because of his lack of factual evidence. It is therefore justified as any other judgment also.
Objection
The ( real ) default judgment may be attacked with the remedy of appeal ( § 338 ZPO). The objection within two weeks ( § 339 ZPO) - in labor within one week - from delivery of the judgment in default in writing to the court whose decision is contested (so-called iudex a quo ) insert. The notice of opposition shall contain according to § 340 para 3 of the Code, grounds for appeal. If the grounds for appeal were given after the deadline, so the opponent is not ruled with his talk readily, but is only precluded if the belated presentation would also delay the proceedings ( it applies to § 296 para 1, 3, 4 ZPO accordingly).
The objection is invalid by a judgment which no further hearing shall be preceded discarded. The valid objection puts the dispute back to the state before of default and therefore usually leads to the convening of a new date for the hearing.
Escape to the failure by
With the flight to the failure by a tactical behavior is described in the civil process. The defendant, who has not returned on time to the lawsuit, will often face the situation that, if he puts forward his substantive arguments at the hearing, is heard no more with this, because his argument is too late. Any failure of the defendant in this case, to request the dismissal of the action, so he does not negotiate to the point, though a default judgment may be taken against him. Against this, however, he can appeal and also make the grounds for appeal were that late for the first date argument as to the object of his legal defense.
The disadvantage of escape in such failure is that the person against whom the decision is default judgment, even if he prevails on the merits on the inserted objection to bear the costs of default has ( § 344 ZPO), and that the default judgment a without security provisionally enforceable, § 708 No. 2 ZPO. In this risk a commissioned attorney must point. Often this is less serious than the threat to the rejection of the präkludierten, that is excluded and therefore later not to be considered fact-pleading loss of the process.
Multiple failure by
Does not appear the defaulting party in the notice of opposition to the einberaumten another hearing or negotiate them there beside the point, the opposition is rejected by a technically second default judgment. Against this judgment there is no new objection, but only the remedy of appeal that can be solely based on the fact that a culpable failure to comply with the second appointment was not present ( § 345, § 514, paragraph 2 ZPO). It is controversial whether it is checked in the appeal against the second default judgment if the first default judgment was rendered to right, ie whether the lawsuit was actually founded conclusive. The prevailing opinion in the literature and the case law rejects the a contrario from § 700 para 6 ZPO from.
Failure by the appellate
The failure by the appellee has the consequence that the permissible actual argument of the appellant is to accept them as authority. As far as it justifies the request for appeal, can be seen by the application, if this is not the case, the appeal must be dismissed. If the appellant delinquent, it is his calling without examination by default judgment - against which opposition according to § 338 ZPO is possible - rejected, see § 539 ZPO. The same applies to the failure by the revision process.