Legal aid

About the legal aid ( PKH ) ( formerly known as " Poor Law ") may acc. § § 114 ff.Vorlage: § / Maintenance / buzer ZPO -income individuals for financial support for the implementation of court proceedings be granted. Legal aid comes in proceedings before the civil, administrative, labor and social courts in consideration when a litigant is unable to apply the legal fees and court costs for the process. In criminal proceedings can only co-plaintiffs or Adhäsionsklägern legal aid be granted. Legal aid covered by the state. She is a special statutory establishment of social assistance in the field of justice and serves to implement the legal equality. In certain proceedings under the FamFG legal aid is known as legal aid ( VKH ).

The Swiss conditions are described under the entry Gratuitous justice.

Requirements

Legal aid may be granted in a judicial proceeding pursuant to § 114 sentence 1 ZPO each party. Typically, this is the plaintiff and the defendant. However, intervenors, or ( in special processes ) applicants or defendants, creditors and debtors may be granted legal aid. In addition to natural persons and legal persons can obtain legal aid (§ 116 ZPO), but under much tighter conditions. A grant to foreigners or stateless persons is possible. This is only true for the prosecution before the German state courts. § / Maintenance / buzer Code of Civil Procedure: The regulations apply to cross-border procedures in the European Union in § § 1076 to 1078Vorlage.

The application for legal aid must be addressed to the court in which the process is pending or in which it is to be brought. In addition to the need, which is to demonstrate on the basis of a declaration of personal and financial circumstances, the chances of success of the process leading to a summary court preliminary examination are subjected. Legal aid is granted only when reasonable prospect of success. Has the prosecution or defense only to the extent taken over the process costs only partly sufficient prospects of success are. Moreover, it must appear willfully bringing actions; there must be a process that would lead a non- needy, and understanding person in the same way.

For the out of court (except in the states of Bremen and Hamburg) advisory assistance of the advisory Assistance Act ( BerHG ) is granted. As a rule of thumb that someone ( plaintiff as defendant ) denied legal aid, if believed by file review of the judge that the other side will win.

By amending legislation, a new paragraph 2 is added to § 114 ZPO) from 2014, which changes material legally next to procedural changes and test right here also the conditions. § 114 para 2 CCP: " ( 2) Wanton is the prosecution or defense when a party who does not claim legal aid, would waive the prosecution or defense of a reasonable appraisal of all the circumstances, even though a reasonable prospect of success. "

Be expressed simply, because of the adopted new rules in the PKH ( printed matter 17/13538 ) only exacerbated the test accuracies and amplifies a needs analysis based on the personal income ratios. The supposed Eligible applicants must therefore truthfully provide information about his financial situation. What is new is that now the method opponent can be asked about the circumstances when it is fairly certain that this may contribute to the Enlightenment. In addition to this practice, there is in § 114 para 2, a single deviation and exception to this rule, stating that the material conditions for the grant of PKH were presiding sheet and is made clear what is meant by the concept of understanding " wantonness ". In a proposed resolution amending PKH, the SPD has complained that the proposed amendment to § 114 ZPO is already being implemented by judge-made law. Nevertheless, the Committee recommends IV of the printed matter 17/13538 does not change, but refers to a judgment of the Federal Constitutional Court ( Bundesverfassungsgericht NJW 2010, 988 f ) that applying these changes already in legal practice. In the literature it is often criticized that ... is compared by this change at a ... sufficient prospect of success, approval of PKH can be denied here always, with the behavior of a person who receives no PKH in the same situation and weigh whether when expecting to obtain reasonable prospect of success a lawsuit would be useful in spite of the cost risk. Affected could include tenants who must turn only an expensive expert due to their burden of proof, if the landlord refuses to blame for the occurrence of the defect ( § 536 BGB).

Follow the granting of legal aid

Where legal aid is granted and the applicant loses the process, the court costs and attorneys' fees of one's own lawyer be taken over by the Treasury. If the process is obtained, must bear the legal fees and litigation costs except labor court procedures of First Instance, the opponents.

Legal aid covers only the court costs and the fees of their own lawyer, but according to these lowered rates. Lose the party the process, it must be the opposing lawyer and possibly court costs to the same extent refund, as is the case with no dependents, 123Vorlage §: § / Maintenance / buzer ZPO. An exception is the labor court processes of First Instance.

The granting of legal aid triggers a demand barrier with respect to the attorney fees, § 122 Section 1 No. 3 of the ZPO. Accordingly, it denied to the lawyer, paid directly to the client.

If legal aid is rejected, the appeal of immediate appeal 567 ZPO is protected against possible according to §. The rejection decision shall contain a statement of reasons from which arises if the court considers that the action has no chance of success or they will wantonly or the applicant is able, from its own funds to finance his litigation. The rejection of an application for legal aid is not subject to appeal, where the value of the main € 600 does not exceed, in that the Court has not only denies the personal and economic conditions ( § 127 paragraph 2 sentence 2 second sentence ZPO).

Against the background of wantonness is highly debatable whether a defendant who has not delivered an opinion in PKH - examination procedure, after litigation of the request the granting of PKH may be denied for its own defense because of wantonness (see Weißbrodt FF 2003, 237 ).

In contrast, however, already speaks that he is not obliged to such an opinion by the clear wording of § 118 paragraph 1 sentence 1 CCP ( as OLG Karlsruhe FamRZ 2002, 1132, OLG Hamm FamRZ 2004, 466; OLG Schleswig FuR 2006, 142; OLG Hamm FamRZ 2008, 1264, OLG Brandenburg FamRZ 2010, 142; OLG Oldenburg FamRZ 2013, 59; Büte FuR 2006, 533, 535; A. OLG Oldenburg FamRZ 2002, 1712, OLG Brandenburg FamRZ 2006, 349; OLG Brandenburg FamRZ 2008, 70 m abl abl Note Note Gottwald and nickel, MDR 2008, 65;. .. OLG Köln JurBüro 2009, 145; OLG Köln FamRB 2012, 11; differentiating OLG Köln FamRZ 2011, 125; OLG Celle FamFR 2011, 444 ). Article 103 § 1 of the Basic Law is indeed a right, but does not lead to an obligation of the opponent against the VKH parties or even the Treasury (OLG Oldenburg MDR 2012, 995 ). In particular, no process legal relationship is created between the parties (OLG Dusseldorf JurBüro 2011, 655).

Also differentiated § 118 paragraph 1 sentence 1 CCP does not distinguish between " poor" and "rich" litigants. An indigent party can be so not aware of their responsibilities as the well-off ( see OLG Oldenburg MDR 2012, 995 ). In addition, the PKH - method, only a process between the court and petitioner is, in its context, although the defendant is given a fair hearing, to which it is but otherwise not involved (OLG Karlsruhe FamRZ 2002, 1132, OLG Schleswig FuR 2006, 142 ). In particular, the defendant may not be granted (OLG Naumburg FamRZ 2008, 1088) at this time PKH. In this connection it is also to note that the court may consist reason, the applicant acc. § 124 ZPO No. 1 to withdraw already granted legal aid, if it turns out in the subsequent entering an defendant that the applicant has concealed him known relevant facts ( Viefhues FuR 2012, 291, 296 ).

In family matters, however, with regard to § 243 FamFG otherwise apply if not taken a position on a request for information to upkeep, but the ( radical ) objection of inefficiency is withheld pending formal notification of information request (OLG Celle FamRZ 2012, 47; OLG Hamm FuR 2012, 202): the maintenance debtor may revoke namely. § 243 FamFG the costs will also be imposed if he has given rise to a maintenance level application, even if the main thing even before formal application delivery done (OLG Dusseldorf FamRZ 2004, 1661, OLG Celle FamRZ 2009, 72; Reinken FPR 2009 406).

However, where the defendant has an opinion and thereby worsen the chances of success for the applicant, that fact must be taken into account in assessing the prospects of success (OLG Schleswig FamRZ 2013, 62).

Verification procedures

The change in the legal aid decision within four years after the conclusion of the procedure, § 120, paragraph 4, sentence 3 ZPO. During this period the personal and financial circumstances can be checked again. Depending on the outcome of the review, the court may modify the grant of legal aid to the effect that an installment or lump-sum payment is arranged. It can also change an existing rate arrangement with regard to the amount of the rates. Inadequate participation in the audit process, in accordance with § 124Vorlage: § / Maintenance / buzer lead No. 2 ZPO repealing legal aid. The review carried out by the judicial officer, § 20Vorlage: § / Maintenance / buzer No. 4 RPflG.

Costs of the authorization process

Initially incurred no legal costs for the process on the grant of legal aid. Different, however, if an immediate appeal is filed and rejected. According No 1812 of GCS- cost directory ( KV ), the court fee is 60 euros for this purpose, it is at the discretion of the court, to reduce it to half or waive (Note to KV No 1812 GKG ). For non-contentious proceedings 131bVorlage §: § / Maintenance / buzer KostO, the fee is 50 euros.

If a lawyer instructed to apply for legal aid, this is a fee pursuant to Section 3335 of the RVG Vergütungsvezeichnisses (VV). This is as much as the method of subscription fee proceedings for which legal aid is requested, but not exceeding a full charge (1.0 ). For proceedings before the social courts, where these procedures are to be settled according to magnitude scale fees, the No. 3336 RVG VV; the fee is between 30 and 320 Euro.

Who hired a lawyer with the legal aid application, you must pay for it themselves. If it comes later for approval and the court procedures performed, these fees go into the later ( covered by the legal aid ) charges on, 16Vorlage §: § / Maintenance / buzer No. 2 RVG.

During the approval process, no reimbursement will take place, 118Vorlage §: § / Maintenance / buzer paragraph 1 sentence 4 of the Code of Civil Procedure. The enemy does not have to reimburse costs incurred So, even if legal aid is granted.

For the legal aid process itself has no legal aid is granted, since the method does not apply insofar as judicial proceedings (BGH VIII ZR 298/83 ). For the legal aid process, no legal aid is granted, since the method does not apply insofar as judicial proceedings. Advisory assistance, however, can be applied as long as no proceedings are pending, in order to let the prospects of the process and assess the conditions for the grant of legal aid are legally qualified.

Withdrawal of the application

Has the meantime granted the insurance, legal expenses insurance, the court asked the application for the grant of legal aid must be returned.

Criminal proceedings

In criminal proceedings, the accused or defendants no legal aid is granted. This is where, in the cases of necessary defense legal defense. In contrast, victims may be granted for offenses which are entitled to co-plaintiff, this legal aid.