CODE OF CIVIL PROCEDURE IN GERMANY
This article will provide guidance on the Code of Civil Procedure in Germany. In Germany, a civil lawsuit (Zivilprozess) is started when the plaintiff (Kläger) submits a complaint to the appropriate German court. The German words ‘Klage’ and ‘Klageschrift’ both mean ‘statement of claim’ and refer to the legal document that contains the complaint.
The complaint is served to the defendant when it has been properly filed with the court and has passed a preliminary check for conformity with the formal criteria set out in the German Civil Procedure Rules. Most of the time, the court will handle the service process on its own, but only after the claimant has paid the court costs (Gerichtskosten) or been awarded legal assistance by the court, both of which require the claimant to show that they have a good chance of winning their case.
Germany Service of process, also known as ‘process service’ or ‘service of summons,’ is the legal procedure used to notify a party (such as a defendant), court, or administrative body of the initiation of legal action in an effort to exercise jurisdiction over that party and to allow that party to respond to the proceeding before the court, body, or other tribunals. A process server in Germany will deliver a bundle of legal papers (known as ‘process’) to the addressee to provide them with proper notice of the impending court case.
As long as the claimant has the defendant's current address in Germany, serving of process is not necessary for a civil lawsuit in Germany. The court will also serve the defendant with a letter specifying the date the defendant must notify the court of their decision on the Klageschrift (complaint). As a rule of thumb, this limit is two weeks if the defendant lives in Germany, but it may be much longer if the defendant is outside Germany. The defendant's legal rights and responsibilities will be laid out in great detail in the accompanying court papers. In the event that the defendant does not respond by this date, the German court will issue a default judgment (Veräumnisurteil).
In the Klageschrift (civil complaint), the plaintiff or their lawyer must first explain why this particular German court has jurisdiction (Zuständigkeit) and demonstrate that all other formal requirements are satisfied, such as the plaintiff being represented by a German licensed lawyer, which is required at the High Court level and above (Postulationsfähigkeit), the case not being pending elsewhere (anderweitige Rechtshängigkeit), and the lawsuit not being frivolous. The German phrase for this complaint section is ‘Zulässigkeit der Klage’ (admissibility of the complaint).
CIVIL CLAIMS IN GERMANY
The ‘Begründetheit der Klage’ (justification of the claim) section of the German statement of claim addresses the claim's real legal grounds. The German plaintiff's attorney elaborates on the harm suffered and the monetary losses sustained, detailing how the defendant was at fault.
As the first part of the complaint, the ‘application for remedy’ (Klageantrag) states the specific relief sought. However, some traditional German litigation attorneys place the remedy sought statement at the conclusion of the German civil complaint. The plaintiff's remedies in the Klageantrag might range from monetary compensation for damages (Zahlungsanspruch) to a court order compelling the defendant to cease a certain action (Unterlassungsanspruch).
No closing arguments are often given in German courts since there is no jury, and the judges thoroughly understand the case thanks to the filed briefs. After the court has questioned all relevant witnesses (questions, not arguments! ), the judge will hold settlement discussions between the parties. The judge will likely adjourn the session without much fanfare if this doesn't work.
A multilateral convention known as the Hague Service Convention was adopted in the Netherlands on November 15, 1965, by members of the Hague Conference on Private International Law, including Germany. It was created so that lawyers could effectively and reliably serve papers on defendants and plaintiffs in another nation. Service of process in civil and commercial cases, but not criminal ones, is governed by the convention. At Undisputed Legal, our private process servers are up to date on German and international legal procedures, and we serve processes in conformation with these legal intricacies. We are accountable to our clients and attempt to ensure that any process service is done quickly and effectively.
If the prerequisites for service under Article 5(1)(a) of the Convention have been satisfied, the Central Authorities are authorized to implement requests for service immediately via postal channels. However, for a document to be validly served in Germany in accordance with Article 5(1) of the Convention, it must either be created in German or translated into German. It's possible to allow someone else to accept the service of process in this scenario (substitute service).
PRELIMINARY HEARINGS IN GERMANY
Civil trials in Germany have shorter oral hearings. If neither side wishes to call witnesses or provide evidence, and negotiations toward a resolution are futile, the hearing might be wrapped up in under ten minutes! After all the evidence has been submitted, expert opinions have been received, and at least one oral hearing has taken place, the court will determine if another oral hearing is necessary or whether the parties may submit one final statement within a time set by the court (Schriftsatzfrist).
The court will notify the parties of the date on which judgment will be handed down (Verkündungstermin) if it has determined that all material issues have been properly addressed and that each party has had enough chance to explain their arguments and submit their evidence... On the day of the Urteilsverkündung (delivery of the judgments), attorneys for both sides often have a paralegal contact the court to request an early copy of the ruling through fax or email. Within a few days, the party should get the official German ruling by mail. The attorneys for both sides will typically be given a copy of the decision and asked to review the court's reasoning before it is officially entered. They will use this assessment to recommend to their clients whether or not to appeal the German ruling formally.
If the parties cannot agree on whether damages occurred or how much they should be compensated for, the court will make the call based on the evidence presented and its appraisal of the situation. The court has the discretion to determine whether or not to order the collection of evidence as requested or to engage experts in preparing a report, and if so, in what capacity. The court may examine the party submitting proof of the harm or the equivalent in money; the requirements shall apply mutatis mutandis.
Exterritorial-entitled German nationals and government employees overseas shall continue to be subject to the law of their former place of residence in Germany. In the event that neither party has such a place of abode in Berlin, the Schöneberg Amtsgericht (AG) will have jurisdiction.
LEGAL ACTIONS IN GERMANY
The parties to a Landgericht action must be represented by attorneys, with limited exceptions for seeking state-provided legal help and other specific reasons. Similarly to American lawyers, German attorneys are called barrister-solicitors.
In Amtsgericht proceedings, the complaint is submitted in writing or converted to writing by a court clerk based on the plaintiff's oral declaration. In Amtsgericht proceedings, other parties' written submissions are welcome but not obligatory. It is preferable to involve a private process service agency like Undisputed Legal, even in this case, as we ensure that any court documents reach their desired recipient conveniently. It should be known that for the international service process, the timelines for service will inevitably be longer to comply with the requirements of the Hague Service Convention.
The client is not prevented from communicating with possible witnesses, so the attorney may instruct the client on how to gather the facts and then review the reports the client provides. Injured parties may pursue civil claims inside the criminal procedures(Adhasionsverfahren)); however, this is not a common practice. After interviewing the client and gathering evidence, the plaintiff's attorney initiates the case by submitting a complaint (Klageschrift) with the court. The case files are taken to a Landgericht room where at least three judges will deliberate. A presiding judge and two associate judges oversee the case inside the chamber; one of the associate judges is designated as the ‘reporting judge’ and is responsible for keeping up with the case in great detail.
A Landgericht's caseload is divided among its chambers according to a schedule published at the start of each judicial year. Many Landgerichte has established specialized ‘commercial chambers’ having jurisdiction over a narrow range of business disputes as required by law. These chambers have a professional presiding judge and two associate judges who are local merchants.
SERVICE OF PAPERS IN GERMANY
The clerk's office serves the defendant's attorney and a copy of the complaint, a summons to a Termin zur miindlichen Verhandlung, a session for oral argument or conference, and an order to provide a statement of defenses and supporting evidence. The summons will specify whether the session will take place before the whole three-judge court or before a single judge thereof appointed by the presiding judge, termed the Einzelrickter, who will almost always be the associate assigned with functioning as reporting judge. When a session is scheduled to be conducted in front of the whole court, the presiding judge will set the date; otherwise, the single judge will have set the date.
In German law, service primarily serves the purpose of giving notice and is handled pragmatically. The clerk's office can use a court bailiff or the mail for routine matters. If an action is appropriate for such a chamber, it will be allocated only if one of the parties requests it; otherwise, it will be assigned to a standard Landgericht chamber. A private process server like Undisputed Legal handles all kinds of legal documents, including but not limited to summons and complaints, divorce papers, family court documents, and subpoenas. We have served legal papers worldwide and can assure you of the safety of your papers. We strive to provide you with a seamless experience and involve you in the status of your documents.
Whether the defendant is a natural or a legal person, the nature of the case and the remedy sought, the specifics of service are often the same. A defendant may waive venue objections by engaging in oral argument on the merits without a first challenging venue unless one of the exceptions in the text applies. If the defendant does not object before the merits are argued, the case may be tried in either the Amtsgericht or the Landgericht depending on the amount in dispute. For most purposes, a Landgericht action begins after the complaint and summons to the first session have been served. However, for determining the start of any applicable limitation periods, the date the complaint was filed is used instead.
There must be at least fourteen days between the date of delivery of the complaint and the first session unless a court order reduces the term. The court will transfer the case to the court deemed competent if the defendant objects to the venue (or subject-matter jurisdiction) and the plaintiff agrees to the transfer. Such a transfer is final and binding on the court ad quem, which means it continues the matter from when it was transferred to it. The case may be appealed as usual if the defendant's objection is overruled. In theory, the higher-ranking court in the chain of courts is responsible for settling such disputes.
It is not unusual for the defendant to attend the session without having filed a response since the penalties for failing to submit an answer and filing a late answer are minimal. Nonetheless, a response is often filed to reach the plaintiff's attorney before the session. When a lawsuit is initiated, the first step is to file a complaint with the court and then exchange copies of subsequent pleadings between attorneys or have them served by an official of the court.
We are familiar with the supplementary steps that must be taken in accordance with international treaties and service of process requirements. Using our global network of process servers, we can offer you prompt, accurate, and compliant service of process in foreign jurisdictions.
Documents can be faxed at (800) 296-0115, emailed to email@example.com, or uploaded to our website. We do require prepayment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist receives all documents.
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FOR ASSISTANCE SERVING LEGAL PAPERS IN GERMANY
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1. As per Article 5(1)(a) of the Convention, the courts in Germany typically handle Process Service via mail unless specifically asked differently.
2. Section 286 of the German Civil Procedure Rules (Zivilprozessordnung) specifies the burden of evidence that must be met in civil litigation in Germany.
3. Whether an accusation as to fact is to be judged genuine or false is a question of fact that the court must resolve in its discretion and conviction after considering the complete substance of the proceedings and the findings gained by evidence being gathered, if any. The ruling will explain the judges' verdict and their reasoning behind it.
4. Neither the barrister/solicitor difference nor the avocat/avoue distinction is recognized in the German system.
5. The process of obtaining evidence might result in something like the American discovery (Beweissicherungsverfahren). For situations where witnesses can suddenly become unavailable, the law allows for their prompt court examination (ZPO 485-94).
6. However, they will probably advise against pressuring potential witnesses for fear that their evidence in court may be tainted, and they will not generally recommend obtaining signed statements.
7. For example, a typical chamber could hear issues involving rentals, accidents, or ‘family’ matters, as well as instances that don't fit into any other chamber's topic area but need the defendants' appropriate service of process.
8. H. v. Siuddeutsche Baugesell- schaft (2d Civ. Sen., April 9, I937)
9. The defendant is expected to submit a replying paper before the session to comply with section I29 (I) of the ZPO, which mandates the preparation of oral argument by writings