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Parent Category: Courts

Created on Friday, 12 December 2008 18:58

Last Updated on Saturday, 22 December 2012 18:51

Court Proceedings: Civil Proceedings

I want to sue another person in a civil matter, what do I have toconsider?

According to §12 I GKG you must pay the court fees in advance. If you fail to do so, your case will not be processed. If you do not know how high the court fees are and you are suing buy yourself, that will be no real problem. The court will open your case and send you a bill. But, the judge will only start working on your case if the bill is paid.
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How does a civil case in court run?

First of all, to understand a civil or commercial case you have to know that a judge will never actively detect the facts of the case. It is your obligation to present and prove the facts to show your claim. The facts you claim will have to be proven if the other side disagrees with them. You cannot prove the law, but you have to persuade the judge that the legal facts result to the applied ruling. A case can already fail if your argumentation does not show a legal claim. Example: You say that the opponent wanted to pay you € 1,000, but never has. You will lose this case because you are claiming to receive money without a return. This implies that you are arguing the opponent wants to give you the money as a gift. According to German law, a promise of bestowal needs validity documentation by a notary public. If you do not show that to the court, you have no claim. You will thus lose be ordered to pay all opponent’s legal costs. The procedure depends on what the court believes will be most effective: an “early first hearing (= früher erster Termin)” or written preliminary proceedings (= schriftliches Vorverfahren).    
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What will happen when written preliminary proceedings are ordered?

You or your attorney usually have to exchange briefs through the court arguing on your behalf. The goal is to have everything discussed so that only one hearing will be necessary. In German this is called "schriftliches Vorverfahren". 
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How does a hearing in court work?

Understand this as legal oral discussion with the judge. The amount of discussion depends on what happened up to this point. If this hearing is a so-called “früher erster Termin (early first hearing)” or “Güteverhandlung (conciliation hearing)” the whole case will be discussed. If this hearing was prepared by an exchange of briefs then there will not be much discussion. Thus, it can happen that the judge only mumbles to the recording clerk and the attorneys just nod. Should there be any discussion left, then it will done in this hearing.   
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What is this Güteverhandlung all about?

This amicable resolution is often a good way to end the dispute. The main advantage is that nobody looses his or her face. A judgment makes one person lose. Furthermore, the costs and the emotional strain are significantly lower. A judgment can raise new points of dispute (e.g. revenge from the loser) and other points can be addressed in a settlement which normally cannot be considered in a judgment. But if there is no room for a settlement, then go ahead and accept a judgment.
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Hey, what’s going on? I just learned there is always a hearing, but I just got a judgment in the mail. I was never summoned to go to court.

Well either that is correct or something has gone wrong. Supposing everything is fine, then this were an exclusively written proceeding The law sometimes allows petty matters to be treated totally in writing and without hearings. On the other hand, if something went wrong then you have to act quickly because a default judgment (Versäumnisurteil) was passed. You only have two weeks time to appeal this decision. Keep in mind this is a legal instrument entitling enforcement.  
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What is a default judgment?

A default judgment (Versäumnisurteil) is the result if you (or your attorney) do not show up in court at all, or do not apply anything in a hearing. Supposing the plaintiff’s case has all the merits of the case a judgment in his favor will be passed. Should it be that the defendant has all the merits, the case will be dismissed and the plaintiff will be forced to pay all the costs. The losing party in a default judgment will have only two weeks to appeal. Keep in mind this is a legal instrument for enforcement.
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My opponent and I have been arguing, fussing, renegotiating our problem for ages. My attorney instructed me that neither of us has more or less reasons than the other. And now the opponent went to court. Is there any chance for a settlement without a judgment or is everything in God’s hand?

Do not worry. Nothing is yet lost but just as much not won. Yes, there is still a chance for a consensual settlement of this case. It is even one of the court’s duties to try to reach a settlement. The good thing about a settlement is that nobody will really have to lose his or her face and both will win – at least partially.        
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When will the court exhibit the presented evidence?

The court will exhibit the presented evidence as soon as the plaintiff’s arguments seem shaken. This will usually be the case if the defendant’s arguments tell a different story and he presents adequate proof.
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How and when does a civil proceeding end?

The case always ends with a final decision. This decision can be a judgment due to arguing or defendant’s acknowledgment or a settlement. The judgment will be announced during a special hearing, which nobody needs to attend. Nobody really attends such hearing. The reasons for the decision will be forwarded in writing afterwards. It can also happen that the judge schedules a hearing to announce a decision. You may, but do not have to, visit such hearing. Only when you are personally summoned via a letter in a yellow envelope will you be obliged to appear in person.
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Details

Parent Category: Courts

Created on Monday, 24 November 2008 06:30

Last Updated on Sunday, 03 February 2013 14:57

Court Proceedings

This page will introduce to some very general but just as important details when dealing with German courts. You will know what to do with a yellow envelope or what to do when running late for a hearing.

A few days ago, I received a yellow envelope from the court and I didn't have an idea what they wanted from me. Since I was in hurry, I dumped the envelope on my desk and continued with my urgent tasks. Neat thing, courts now sending yellow envelopes, as if their costs weren't already so high.

Congratulations! You just passed the fools test! This behavior can drive lawyers crazy. What else does the court have to do to attract your attention? What has to be done that you understand, when you receive a letter from court, that a case has been initiated against you? Now do not tell us that you want a remedy that you were too careless not to take a court serious?
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Well, since you mention it. Is there a remedy? What will happened now?

The court has serviced you a letter with a binding response period. Depending on the procedural situation, you might still have time to respond . When the response period is over, you will not have a chance for further legal recourse. In other words, just because you ignored the court's announcement, you can totally loose a case – even if you had all the merits. Lawyers consider this as a procedural losing.
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The judgment was just served to me the other day. That stupid judge made a totally wrong decision. Is there anything I can do about it? What are my rights?

Stupid decision? I cannot say. What you can do is appeal. Most likely, an attorney must do this. If this judgment is an “Urteil”, then you have one month to have your attorney file the appeal. If the decision has a different name, you might only have up to two weeks time without a chance to remedy a late filing. In any case, get active, and that ASAP. Honestly, the best time to have this question answered is yesterday.
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How serious are court deadlines? Ya know, I just have a hard time to be punctual as well as Germans are.

Whenever the courts sets deadlines, take them very seriously! In most cases, you will at least loose most of your rights, if not lose the case itself by not complying. So the excuse “Sorry, I was held up.” does not help. In case that you are e.g. really stuck in a traffic jam, while on your way to court, call your attorney and inform him. If your appearance is really necessary, he will ask the court to wait or take another case first. Usually, that will happen. If your presence is not really necessary, then forget the idea.      
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I have been telling my creditor over and over again that I am willing, but not able, to pay. He just doesn’t listen. Now he pulled me into court. Is there any way of saving costs?

Well, there is. You will have to tell the court in writing that you agree to the plaintiff’s demand but cannot pay. The judge will pass a so-called “Anerkenntnisurteil”, an judgment by confession. But if you continue arguing, which is generally your right, you will usually lose and the costs will be extremely higher. It would be better to agree on a non-enforcement agreement. With this, the plaintiff will have 30 years time to enforce payment. Do not forget: the plaintiff can immediately start enforcing and you cannot hinder him. An attorney cannot really help in this situation. Attorneys argue law, but cannot cast any spells.           
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What can I do? I received a summons for a hearing, but shortly before I got hospitalized. The doctors don’t want me to leave. I can’t make it to the hearing. What can I do?

Write a letter to the court that you are hospitalized and best add a doctor’s certificate of hospitalization. You should not only write that you are hospitalized, but you should also tell them approximately how long you will still be in the hospital and apply for the hearing be rescheduled. If you fail to follow this suggestion, a default judgment will be pronounced. You will still have the chance to appeal that decision and argue anew.
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What am I to do if I get stuck in a traffic jam?

Call the court and ask that the hearing be postponed for a half hour or however long you need. If you do not call, a default judgment will be passed. In that case you will still have the chance to appeal that decision and argue anew.
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What am I to do, if I don’t speak any German and I have a case against me in court. May I defend myself in English in court?

No. You may not defend yourself in court in the English language! §184 GVG clearly rules that the language of the court is German. This usually also applies to all and any documents in English and are to be submitted. However, to work with English documents is in discretion of the judge. Supposing you do not understand enough German this much to really understand what is being said, then an interpreter will be ordered. Incase your attorney overlooks this detail, do remind him, because otherwise the hearing will have to be rescheduled.   
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I have been summoned as a witness. What do I have to consider?

Your duties are to appear and testify with full truth. In case a party is your relative, then you will usually not have to testify, but the judge must instruct you upon this. Lying in court is considered a serious crime and you will be convicted. However, if you just missed the hearing you will only be fined and will have come for the extra costs due to your no-show. Witnesses will be reimbursed for loss of earnings and necessary travel costs.  
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