The rules concerning the evidentiary value of public records and documents shall be applied mutatis mutandis to public records or documents that have been transformed, using state-of-the-art technology, into electronic documents by a public authority, or a person or entity vested with public trust, and where a confirmation is available that the electronic document is a true and correct copy of the original, both as an image and in terms of its substance. Where the document and the confirmation bear a qualified electronic signature, section 437 shall apply mutatis mutandis.
Section 372
Taking of evidence
(1) The court hearing the case may instruct that, in taking visual evidence on site, one or several experts be involved.
(2) The court hearing the case may allocate to a member of the court hearing the case or to another court the task of taking visual evidence on site, and may likewise leave it to such member of the court hearing the case or to another court to appoint the experts to be involved.
Section 372a
Testing performed to establish parentage
(1) To the extent required in order to establish parentage, each person is to tolerate testing, in particular to having blood tests taken, unless this cannot reasonably be expected of the person to be so tested.
(2) Sections 386 to 390 shall apply mutatis mutandis. Should a person refuse to have testing performed in repeated instances, without such refusal being justified, measures of direct coercion may be taken, in particular by ordering the forcible production of the person concerned for testing.
Title 7
Taking of evidence by hearing witnesses
Section 373
Offer to provide evidence
Evidence by hearing witnesses shall be offered by naming the witnesses and designating the facts regarding which the witnesses are to be examined.
Section 374
(repealed)
Section 375
Taking of evidence by a judge correspondingly delegated or requested
(1) The task of taking evidence by hearing witnesses may be allocated to a member of the court hearing the case or to another court only if, and to the extent, that it is to be assumed from the outset that the court hearing the case will be able to properly evaluate the results obtained in taking the evidence, without obtaining a direct impression of the course of the taking of evidence, and:
1. If it seems expedient, by way of assessing the truth, to examine the witness on site or if, according to the stipulations of the law, the witness is not to be examined at the seat of the court, but instead at a different location;
2. If the witness is prevented from appearing before the court hearing the case and the witness is not examined in the form governed by section 128a (2);
3. If, in light of the great distance the witness would have to travel, and taking account of the significance of his statement, it cannot be reasonably expected of the witness to appear before the court hearing the case, and the witness is not examined in the form governed by section 128a (2).
(1a) The task of taking evidence by hearing witnesses may be allocated to a member of the court hearing the case also in those cases in which this seems suitable for the purpose of simplifying the oral argument before the court hearing the case, and if, and to the extent, that it is to be assumed from the outset that the court hearing the case will be able to properly evaluate the results obtained in taking the evidence without obtaining a direct impression of the course of the taking of evidence.
(2) The President of the Federal Republic of Germany is to be examined in his residence.
Section 376
Examination of persons subject to official secrecy obligations
(1) The specific rules of civil service law shall apply when examining as witnesses: judges, civil servants, and other persons in the public service where the examination concerns circumstances falling within the scope of their official secrecy obligations; said rules shall likewise apply to the permission granted to such persons to make such a statement.
(2) The special rules governing their actions shall apply for members of the Bundestag, of a Land Parliament, of the Federal government, or of a Land government, as well as for the employees of a parliamentary group of the Bundestag or of a Land Parliament.
(3) In the cases set out in subsections (1) and (2), the court hearing the case shall procure the corresponding permission and shall make this known to the witness.
(4) The President of the Federal Republic of Germany may refuse to testify if such testimony would be detrimental to the welfare of the Federal Republic or of one of the German Länder.
(5) These rules shall continue to apply also if the above-referenced persons are no longer in the public service or employees of a parliamentary group, or if their electoral mandate has ended, to the extent that the facts and circumstances in question occurred during the time of their service, employment or electoral mandate, or to the extent they became aware of such facts and circumstances during such time.
Section 377
Summons of a witness
(1) The court registry is to execute the summons issued to a witness, with reference being made to the order for evidence to be taken, and is to give notice ex officio. Unless the court orders that such a summons be served, it is to be communicated by simple letter.
(2) The summons must include:
1. The designation of the parties;
2. The subject matter of the examination;
3. The instruction of the witness to appear at the hearing, at the time and place provided in the summons, for the purpose of testifying before the court, and must include the warning that failure to do so may be sanctioned by the means of administrative coercion provided for in the law.
(3) The court may instruct that the question regarding which evidence is to be taken may be answered in writing should it believe that, in light of the content of the question regarding which evidence is to be taken and taking into consideration the person of the witness, it suffices to proceed in this manner. The attention of the witness is to be drawn to the fact that he may be summoned to be examined as a witness. The court shall direct the witness to be summoned if it believes that this is necessary in order to further clear up the question regarding which evidence is to be taken.
Section 378
Documents facilitating a witness’s testimony
(1) To the extent they enable him to better testify, the witness is to inspect records and other documents and is to bring them along to the hearing, provided he has been permitted to do so and provided this can reasonably be expected of him. Sections 142 and 429 shall remain unaffected hereby.
(2) Should, upon a specific order of the court having been issued, the witness fail to comply with the obligation pursuant to subsection (1), the court may take the measures designated in section 390; the witness’s attention is to be drawn to this fact previously.
Section 379
Advance payment to cover expenditures
The court may make the summons of the witness dependent on an advance payment being made by the party tendering evidence; this advance must suffice to cover the expenditures that the Treasury will incur as a result of examining the witness. Should the advance not be paid within the period determined, the witness will not be summoned, unless such payment is made retroactively and in such due time that, in the opinion of the court, formed at its discretion and conviction, it enables the witness to be examined without causing a delay to the proceedings.
Section 380
Consequences of a witness’s failure to appear
(1) The costs resulting from the fact that a duly summoned witness fails to appear shall be imposed on that witness without this requiring any application to be filed. Concurrently, a coercive fine shall be levied against that witness and, for the case that this cannot be recovered from same, he shall be sentenced to coercive detention.
(2) In the event of a witness failing to appear in several instances, the means of administrative coercion shall be levied or ordered once again; likewise, the forcible production of the witness may be ordered.
(3) A complaint subject to a time limit may be lodged against these orders.
Section 381
Sufficient excuse for failing to appear
(1) The costs shall not be imposed on the witness, nor shall any means of administrative coercion be ordered, where the witness provides timely and sufficient excuse for his failure to appear. Should the excuse pursuant to the first sentence hereof not be brought forward in due time, the imposition of costs or the order of means of administrative coercion shall be refrained from only if it is demonstrated to the satisfaction of the court that the witness is not responsible for the excuse having been submitted to the court late. Should the sufficient excuse or the demonstration to the court’s satisfaction be performed retroactively, the instructions given shall be cancelled, provided the prerequisites set out in the second sentence hereof having been met.
(2) The notifications and requests by the witness may be made in writing, or may be recorded with the registry for the files of the court, or they may be made orally in the new hearing determined for the witness’s examination.
Section 382
Examination of certain witnesses at specific locations
(1) The members of the Federal Government or of a Land government are to be examined at their official residence or, if they are spending time outside of their official residence, they shall be examined at that place of abode.
(2) The members of the Bundestag, of the Bundesrat, of a Land parliament or of a second chamber are to be examined at the venue of that assembly while they have their abode there.
(3) For any deviation from the above rules, the following permits must be issued: for members of the Federal Government, a permit from the Federal Government; for members of a Land government, a permit from the Land government; for members of one of the assemblies set out in subsection (2), a permit from that assembly.
Section 383
Refusal to testify on personal grounds
(1) The following persons are entitled to refuse to testify:
1. The fiancé of a party, or that person to whom the party has made a promise to establish a civil union;
2. The spouse or former spouse of a party;
2a. The partner or former partner under a civil union with a party;
3. Those who are or were directly related to a party, either by blood or by marriage, or who are or were related as third-degree relatives in the collateral line, or who are or were second-degree relatives by marriage in the collateral line;
4. Clerics, with a view to what was entrusted to them in the exercise of their pastoral care and guidance;
5. Persons who collaborate or have collaborated, as professionals, in preparing, making or distributing printed periodicals or radio or television broadcasts, if their testimony would concern the person of the author or contributor of articles or broadcasts and documents, or the source thereof, as well as the information they have been given with regard to these persons’ activities, provided that this concerns articles or broadcasts, documents and information published in the editorial part of the periodical or broadcast;
6. Persons to whom facts are entrusted, by virtue of their office, profession or status, the nature of which mandates their confidentiality, or the confidentiality of which is mandated by law, where their testimony would concern facts to which the confidentiality obligation refers.
(2) The persons designated under numbers 1 to 3 are to be instructed about their right to refuse to testify prior to being examined.
(3) Even if the persons designated under numbers 4 to 6 do not refuse to testify, their examination is not to be aimed at facts and circumstances regarding which it is apparent that no testimony can be made without breaching the confidentiality obligation.
Section 384
Refusal to testify for factual reasons
Witnesses may refuse to testify:
1. On questions, the answer to which would cause direct losses under property law to the witness, or to a person with whom the witness is in a relationship as designated hereinabove in section 383 numbers 1 to 3;
2. On questions, the answer to which would result in the witness, or a person with whom the witness is in a relationship as designated hereinabove in section 383 numbers 1 to 3, being dishonoured, or if this would entail the risk of their being prosecuted for a criminal offence or an administrative offence;
3. On questions that the witness would not be able to answer without disclosing a technical or trade secret.
Section 385
Exceptions from the right to refuse testimony
(1) In the cases provided for by section 383 number 1 to 3 and section 384 number 1, the witness may not refuse to testify:
1. Regarding the implementation of a legal transaction and its subject matter, for the implementation of which he was involved as a witness;
2. Regarding the births, marriages, or deaths of family members;
3. Regarding facts concerning property matters governed by the family relationship;
4. Regarding actions taken with a view to the legal relationship at issue, of which it is alleged that the witness took such action as the predecessor in title of a party or as its representative.
(2) The persons designated in section 383 numbers 4 and 6 may not refuse to testify wherever they have been released from their confidentiality obligations.
Section 386
Declaration of refusal to testify
(1) The witness refusing to testify is to submit to the court the facts on which he is basing such refusal, and is to substantiate them, prior to the hearing scheduled for his examination; this substantiation shall be made in writing, or by recording such facts for the files of the court registry, or by submitting them to the court at the hearing itself.
(2) In the cases provided for by section 383 number 4 and 6, the refusal shall be deemed to have been sufficiently substantiated if an assurance is given that an oath of office has been sworn.
(3) Where the witness has declared his refusal in writing, or has recorded it for the files of the court registry, he shall not be obligated to appear at the hearing determined for his examination.
(4) The court registry is to notify the parties to the dispute should it receive a declaration by the witness to this effect, or should such a declaration have been recorded for its files.
Section 387
Interlocutory proceedings regarding the refusal to testify
(1) Upon having heard the parties, the court hearing the case shall rule on whether or not the refusal is lawful.
(2) The witness is not under obligation to have an attorney represent him.
(3) A complaint subject to a time limit may be lodged against the interlocutory judgment.
Section 388
Interlocutory proceedings regarding a written refusal to testify
Where a witness declares his refusal in writing or has such refusal recorded with the registry for the files of the court, and where the witness has failed to appear at the hearing, a member of the court hearing the case is to report based on the witness’s declarations.
Section 389
Refusal to testify before a judge correspondingly delegated or requested
(1) Should the witness bring such refusal before a judge correspondingly delegated or requested, the declarations of the witness shall be included in the record of the hearing in addition to the declarations made by the parties, unless the witness’s declarations have been submitted to the court in writing or have been recorded with the registry for the files of the court.
(2) The witness and the parties to the dispute are summoned ex officio to the hearing before the court hearing the case.
(3) A member of the court hearing the case is to report on the basis of the declarations made by the witness and the parties. Following such submission by the reporting judge, the witness may make statements for the record; the parties to the dispute may do so in order to provide the reasoning for their petitions to the court; no new facts and circumstances and no new evidence may be asserted in this context.
Section 390
Consequences of the refusal to testify
(1) If a witness refuses to testify or to be sworn in without providing any grounds for such refusal, or bases his refusal on grounds that have been declared insignificant in a final and binding judgment, the costs resulting from such refusal shall be imposed on the witness without this requiring any petition to be filed with the court. Concurrently, a coercive fine shall be levied against him and, should it not be possible to recover this fine, the witness shall be sentenced to coercive detention.
(2) In the event the witness repeatedly refuses to testify, the detention of the witness shall be ordered upon a corresponding application being made so as to exact a testimony from him; however, such detention shall not continue beyond the point in time at which the proceedings are terminated at that respective level of jurisdiction. The rules concerning detention in compulsory enforcement proceedings shall apply mutatis mutandis.
(3) A complaint subject to a time limit may be lodged against the orders.
Section 391
Placing a witness under oath
Subject to the exemptions resulting from section 393, a witness is to be placed under oath if the court believes this is mandated in light of the significance of the testimony, or in order to procure a truthful statement, provided that the parties to the dispute do not waive having the witness placed under oath.
Section 392
Oath sworn subsequently; wording of the oath
The witness shall be sworn in following his examination. A plurality of witnesses may be sworn in simultaneously. The oath shall be worded to the effect that the witness has said nothing but the truth to the best of his knowledge, and that he has not concealed anything.
Section 393
Examination of a witness who is not placed under oath
Anyone who, at the time of their examination, is not yet 16 years of age, or who, due to a lack of intellectual maturity or due to an intellectual incapacity, has no sufficient understanding of the nature and significance of an oath, is to be examined without being placed under oath.
Section 394
Examination of each witness individually
(1) Each witness is to be examined individually and without those witnesses being present who are to be examined at a later time.
(2) Witnesses whose statements contradict each other may be brought face to face.
Section 395
Instruction of a witness to tell the truth; personal information of the witness
(1) Prior to the examination, the witness shall be instructed to tell the truth; his attention shall be drawn to the fact that, in the cases provided for by law and under certain circumstances, he may have to swear an oath regarding his testimony.
(2) The examination shall begin by the witness providing to the court his given name and surname, his age, his profession or business, and his residence. Should this be required, he is to be asked questions concerning those circumstances that concern his credibility in the matter at hand, this being in particular his relationship to the parties to the dispute.
Section 396
Examination regarding the dispute
(1) The witness is to be induced to tell the court in context whatever facts are known to him regarding the subject matter of his examination.
(2) By way of ensuring the clarity and completeness of the testimony, while also investigating the basis on which the knowledge of the witness is based, the court is to ask further questions where necessary.
(3) The presiding judge is to grant to each member of the court making the corresponding request the opportunity to ask questions.
Section 397
Right of the parties to ask questions
(1) The parties are entitled to have those questions put to the witness that they believe expedient for clearing up the matter, or for establishing the circumstances of the witness.
(2) The presiding judge may permit the parties to directly address questions to the witness, and is to grant this permission to their counsel upon the latter’s request.
(3) In case of doubt, the court shall rule on whether or not a question is admissible.
Section 398
Repeated examinations; subsequent examinations
(1) The court hearing the case may order, at its discretion, that a witness be examined several times.
(2) Where a delegated or a requested judge has refused to ask a question as suggested by a party in examining a witness, the court hearing the case may order that the witness be subsequently examined on this question.
(3) Should an examination be repeated, or should it be performed subsequently, the judge may refrain from placing the witness under oath once again and instead have him give an assurance that his testimony is correct while invoking the oath he swore previously.
Section 399
Waiver of a witness’s examination
The party may waive having a witness examined by the court that it has itself named; however, the opponent may demand that the witness appearing be so examined and, where such examination has already begun, that it be continued.
Section 400
Authorisation of the judge charged with taking evidence
In the event the witness fails to appear or refuses to testify, the judge charged with taking evidence is authorised to issue the statutory directions and, provided this is at all admissible: to himself repeal them after he has completed the task with which he was charged, to take a preliminary decision regarding the admissibility of a question submitted to a witness, and to once again examine a witness.
Section 401
Compensation of witnesses
The witness shall be compensated pursuant to the Judicial Remuneration and Compensation Act (Justizvergütungs- und –entschädigungsgesetz, JVEG).
Title 8
Evidence provided by experts
Section 402
Applicability of the rules for witnesses
Unless otherwise provided for by the subsections hereinbelow, the rules in place for the evidence provided by witnesses shall apply mutatis mutandis to the evidence provided by experts.
Section 403
Offer to provide evidence
Evidence shall be offered by designating the items regarding which a report is to be prepared.
Section 404
Selection of the expert
(1) The court hearing the case shall select the experts to be involved and shall determine their number. It may limit itself to appointing a single expert. It may appoint other experts to take the stead of the expert first appointed.
(2) Should experts have been publicly appointed for certain types of reports, other persons shall be selected only if particular circumstances so require.
(3) The court may ask the parties to the dispute to designate persons who are suited to be examined as experts.
(4) Should the parties to the dispute agree on certain persons to be appointed as experts, the court is to comply with what they have agreed; however, the court may limit the selection made by the parties to a certain number.
Section 404a
Directions by the court as regards the expert’s activities
(1) The court is to direct the expert in terms of his activities and may issue instructions as concerns their nature and scope.
(2) Insofar as the special aspects of the case require, the court is to hear the expert prior to wording the question regarding which evidence is to be taken; it is to familiarise the expert with his tasks; and is to explain to the expert the task it has allocated to him should he so request.
(3) Where the facts of a case are at issue, the court shall determine the facts on which the expert is to base his report.
(4) To the extent required, the court shall determine the scope in which the expert shall be authorised to elucidate the question regarding which evidence is to be taken, and it shall also determine whether or not he may contact the parties, and at which point he is to permit them to participate in his investigations.
(5) Any instructions given to the expert shall be communicated to the parties. If a separate hearing is held at which the expert is familiarised with his tasks, the parties are to be allowed to attend.
Section 405
Selection of the judge charged with taking evidence
The court hearing the case may authorise the judge charged with taking evidence to appoint the expert. In such event, the judge shall have the authorities and obligations of the court hearing the case pursuant to section 404 and section 404a.
Section 406
Rejection of an expert
(1) An expert may be rejected for the same reasons for which a party is entitled to challenge a judge. However, the fact that the expert has been examined as a witness cannot be taken as grounds for rejecting him.
(2) The petition for rejection is to be filed with the court or judge by whom the expert has been appointed, prior to the expert being examined; at the latest, however, within two weeks following the pronouncement or service of the order concerning the expert’s appointment. Any such rejection shall be admissible at a later date only if the petitioner demonstrates to the satisfaction of the court that he was prevented, through no fault of his own, from asserting and filing the reasons for rejecting the expert. The petition may be recorded with the registry for the files of the court.
(3) The reasons for rejecting the expert must be demonstrated to the court’s satisfaction; the party may not be admitted to make a statutory declaration in lieu of an oath.
(4) The decision shall be issued by the court or judge designated in subsection (2) hereinabove by court order.
(5) There is no remedy available against a court order by which the rejection is declared as having been substantiated, whereas a complaint subject to a time limit may be lodged against the court order declaring the rejection to be unsubstantiated.
Section 407
Obligation to submit a report
(1) The party appointed as expert is to comply with this appointment if he is a publicly appointed expert responsible for the submission of reports of the type required, or if he publicly pursues, as an economic activity, the science, art or commercial activities, knowledge of which is a pre-requisite for preparing the report, or if he has been publicly appointed or authorised for the exercise of such activities.
(2) Any person who has declared to the court that he is willing to submit such a report shall be under obligation to do so.
Section 407a
Other obligations of the expert
(1) The expert is to review, without undue delay, whether the task allocated to him by the court in fact falls within his field and whether it can be completed without involving further experts. Should this not be the case, the expert is to notify the court of this fact without undue delay.
(2) The expert does not have authority to transfer the task allocated to him by the court to another party. To the extent the expert avails himself of the collaboration of another person, he is to provide that person’s name and set out the scope in which that person contributed to his report, unless the work so done concerned ancillary services of minor significance.
(3) Should the expert be in doubt as to the content and scope of the task allocated to him by the court, he is to procure clarification from the court without undue delay. Should the expert foresee that the costs recognisably will be disproportionate to the value of the subject matter being litigated, or that they will be significantly higher than the advance on the costs of litigation required by the court, he is to draw the attention of the court to this circumstance in due time.
(4) Should the court so demand, the expert is to surrender or communicate the files and any other documents he has used to prepare his report, as well as any results of his investigations, doing so without undue delay. Should he fail to comply with this obligation, the court shall order that such files, documents, and results be surrendered.
(5) The court is to instruct the expert as concerns his obligations.
Section 408
Right to refuse to prepare a report
(1) The same grounds entitling a witness to refuse to testify shall entitle an expert to refuse to prepare a report. The court may also release an expert from the obligation to prepare a report for other reasons.
(2) The specific stipulations of civil service law shall apply when examining judges, civil servants, and other persons in the public service as experts. The special rules governing the actions of members of the federal government or of a Land government shall apply for these persons.
(3) Anyone who has assisted with a judicial ruling may not be examined as an expert regarding questions that were the subject matter of the court’s decision.
Section 409
Consequences of the failure to appear or of the refusal to submit a report
(1) Should an expert fail to appear in court, or should he refuse to submit a report in spite of being under obligation to do so, or should an expert retain files or other documents, the costs entailed by this conduct shall be imposed upon him. Concurrently, a coercive fine shall be levied against him. In the event of repeated disobedience, the coercive fine may be levied once again.
(2) A complaint subject to a time limit may be lodged against the order.
Section 410
Placing the expert under oath
(1) The expert shall be sworn in, either prior to his submitting the report to the court or after he has done so. The oath shall be worded to the effect that the expert will prepare, or has prepared, the report demanded of him in an impartial manner and to the best of his knowledge and belief.
(2) Where the expert is a generally sworn expert concerning the preparation of reports of the type entailed by the proceedings, it shall suffice for him to invoke the oath he has sworn; this may also be done in his written report.
Section 411
Written report
(1) If it is ordered that the report be submitted in writing, the court shall set a period for the expert within which he is to transmit his signed report.
(2) Should an expert obligated to submit the report fail to meet the deadline imposed on him, a coercive fine may be levied against him. A warning that a coercive fine may be levied must have been previously issued, with a period of grace being set in the warning. Should the deadline be missed in repeated instances, the coercive fine may be levied once again in the same manner. Section 409 (2) shall apply mutatis mutandis.
(3) The court may order the expert to appear before it for the purpose of explaining the written report.
(4) Within a reasonable period of time, the parties are to communicate to the court their objections to the report, any petitions with regard to the preparation of the report, and supplementary questions to the written report. The court may set a deadline within which they are to do so; section 296 (1) and (4) shall apply mutatis mutandis.
Section 411a
Use of expert reports prepared in other proceedings
The preparation of a written report may be forgone if an expert report can be used that has been obtained by the court or the public prosecution office in other court proceedings.
Section 412
New report
(1) The court may order the same experts or other experts to prepare a new report if it finds that the report is not to its satisfaction.
(2) The court may order another expert to prepare a report if, following the submission of a report by an expert, the rejection of that expert has met with success.
Section 413
Remuneration of the expert
The expert shall be remunerated pursuant to the Judicial Remuneration and Compensation Act (Justizvergütungs- und –entschädigungsgesetz, JVEG).
Section 414
Expert witnesses
Insofar as knowledgeable persons are to be examined in order to obtain evidence regarding past facts and circumstances, or situations given in the past, which required special technical competence in order to be perceived, the rules governing the taking of evidence by hearing witnesses shall be applicable.
Title 9
Evidence provided by records and documents
Section 415
Evidentiary value of public records and documents regarding declarations
(1) Records and documents that have been prepared, in accordance with the requirements as to form, by a public authority within the scope of its official responsibilities, or by a person or entity vested with public trust within the sphere of business assigned to him or it (public records and documents), shall establish full proof, provided they have been executed regarding a declaration made before the public authority or the public official issuing the deed.
(2) Evidence proving that the transaction has been improperly recorded is admissible.
Section 416
Evidentiary value of private records and documents
To the extent that private records and documents are signed by the parties issuing them, or have been signed using a mark that has been certified by a notary, they shall establish full proof that the declarations they contain have been made by the parties who prepared such records and documents.
Section 416a
Evidentiary value of the hard-copy printout of a public electronic document
The certified hard-copy printout of an electronic document pursuant to section 371a (3) that a public authority has created, in accordance with the requirements as to form, within the scope of its official responsibilities, or a person or entity vested with public trust within the sphere of business assigned to him or it, as well as the hard-copy printout of an electronic document issued by a court bearing an endorsement by the competent court pursuant to section 298 (2) shall be equivalent to the certified copy of a public record or document.
Section 417
Evidentiary value of public records and documents regarding a directive, ruling or decision issued by an authority
The public records and documents containing a directive, ruling or decision issued by a public authority shall establish full proof of their content.
Section 418
Evidentiary value of public records and documents with other content
(1) Public records and documents setting out other content than that designated in sections 415 and 417 establish full proof of the facts set out therein.
(2) Evidence proving that the facts set out therein are wrong is admissible unless the laws of a federal Land rule out or limit such evidence.
(3) Should the certification not be based on the own perception of the public authority or the public official issuing the deed, the rule established in subsection (1) shall be applied only where it is apparent from the laws of a federal Land that the evidentiary value of the certification is independent of that own perception.
Section 419
Evidentiary value of flawed records and documents
The court shall decide at its discretion and conviction to which extent flaws such as text having been struck out, erasures, insertions, or other external defects will abrogate or reduce the evidentiary value of a record or document as a whole or in part.
Section 420
Production by the party tendering evidence; offer to provide evidence
Producing the record or document will constitute the offer of evidence.
Section 421
Production by the opponent; offer to provide evidence
Should the party tendering evidence allege that the record or document is in the hands of the opponent, evidence shall be offered by filing a petition that the court direct the opponent to produce said record or document.
Section 422
Opponent’s obligation under civil law to produce a record or document
The opponent is under obligation to produce the record or document if, pursuant to the stipulations of civil law, the party tendering evidence may demand the surrender or production of the record or document.
Section 423
Opponent’s obligation to produce a record or document in the event of reference being made to same
The opponent is also under obligation to produce a record or document to which he has referred in the proceedings by way of tendering evidence, even where he did so only in a preparatory written pleading.
Section 424
Petition in the event the record or document is to be produced by the opponent
The petition shall:
1. Designate the record or document;
2. Designate the facts the record or document is intended to prove;
3. Designate, as completely as possible, the contents of the record or document;
4. Cite the circumstances based on which it is being alleged that the opponent has possession of the record or document;
5. Designate the grounds based on which the obligation results to produce the record or document. These grounds must be demonstrated to the satisfaction of the court.
Section 425
Order that the opponent produce the record or document
Should the court deem the facts or circumstances to be significant that are to be proven by the record or document, and the petition to be justified, it shall order the opponent to produce the record or document if the opponent has acknowledged that the record or document is in his hands, or in the event that the opponent fails to react to the petition in substance.
Section 426
Examination of the opponent regarding the whereabouts of the record or document
Should the opponent dispute that the record or document is in his possession, he is to be examined as to its whereabouts. In the summons to the hearing at which he is to be examined, he is to be directed to carefully research the whereabouts of the record or document. Furthermore, the stipulations of sections 449 to 454 shall apply mutatis mutandis. Should the court become convinced that the record or document is in the opponent’s possession, it shall order it to be produced.
Section 427
Consequences of the opponent failing to produce the record or document
Should the opponent fail to comply with the order to produce the record or document, or should the court become convinced, in the case provided for by section 426, that he has not carefully researched the whereabouts of the record or document, a copy of the record or document produced by the party tendering evidence may be deemed to be proper evidence. Where no copy of the record or document has been produced, the allegations made by the party tendering evidence regarding the nature and content of the record or document may be assumed to be proven.
Section 428
Production by third parties; offer to provide evidence
In cases in which, according to the allegations made by the party tendering evidence, the record or document is in the possession of a third party, evidence shall be deemed offered where a petition has been filed with the court that it determine a period for the procurement of the record or document, or that it deliver an order pursuant to section 142.
Section 429
Obligation of third parties to produce a record or document
For the same reasons as apply to the opponent of the party tendering evidence, the third party is under obligation to produce the record or document; the third party can be compelled to produce the record or document only by bringing an action. Section 142 shall remain unaffected hereby.
Section 430
Petition for the record or document to be produced by a third party
In order to provide the reasoning for the petition to be filed pursuant to section 428, the party tendering evidence is to comply with the requirements set out in section 424 numbers 1 to 3 and number 5, and moreover is to demonstrate to the satisfaction of the court that the record or document is in fact in the hands of the third party.
Section 431
Period set for the third party to produce the record or document
(1) If the facts or circumstances that the record or document is to prove are significant, and if the petition corresponds to the stipulations of the preceding section, the court is to determine a period within which the record or document is to be produced.
(2) The opponent may petition that the proceedings be continued prior to the expiry of the deadline if the action brought against the third party has been dealt with and terminated, or if the party tendering evidence is tardy in filing the corresponding suit, protracts the litigation, or delays compulsory enforcement.
Section 432
Production of records or documents by public authorities or civil servants; offer to provide evidence
(1) Where, according to the allegation made by the party tendering evidence, the record or document is in the hands of a public authority or of a civil servant in the narrower sense of the term, evidence shall be offered by filing the petition with the court that the public authority or the civil servant be requested to provide the record or document.
(2) This rule is not to be applied to records or documents which, according to the stipulations of the law, the parties to the dispute are able to procure without requiring the involvement of the court.
(3) Should the public authority or the civil servant refuse to communicate the record or document in cases in which the obligation to produce same is based on section 422, the stipulations of sections 428 to 431 shall apply.
Section 433
(repealed)
Section 434
Production of records or documents to judges correspondingly delegated or requested
If a record or document cannot be produced at the hearing because this is prevented by significant impediments, or if there are concerns regarding its production in light of its importance and the concern that it might be lost or damaged, the court hearing the case may order that the record or document be produced to one of its members or to another court.
Section 435
Production of public records and documents as originals or as certified copies
A public record or document may be produced as an original or as a certified copy if it meets the requirements regarding a public record or documents where its certification is concerned; the court may order, however, that the party tendering evidence produce the original or that it state which facts and circumstances prevent it from so producing the original, demonstrating such facts and circumstances to the satisfaction of the court. Should this order not meet with success, the court shall decide at its discretion and conviction on the evidentiary value it intends to accord to the certified copy.
Section 436
Waiver following the production of a record or document
Following the production of a record or document, the party tendering evidence may waive the evidence represented by said record or document only with the consent of the opponent.
Section 437
Authenticity of German public records and documents
(1) Records and documents which, by their form and content, appear to have been executed by a public authority or by a person or entity, shall be presumed to be authentic.
(2) Should the court have doubts as to the authenticity of a record or document, it may also demand ex officio of the public authority or the person alleged to have executed the record or document that they make a statement regarding its authenticity.
Section 438
Authenticity of foreign public records and documents
(1) The court is to exercise its discretion in deciding, based on the circumstances of the case, whether or not a record or document appearing to have been executed by a foreign public authority or by a foreign person or entity vested with public trust, may be deemed to be authentic without obtaining any further proof by supporting documents.
(2) Legalisation by a consul or a minister of the Federal Republic shall suffice as proof of the authenticity of such a record or document.
Section 439
Declaration as to the authenticity of private records and documents
(1) Pursuant to the stipulations of section 138, the opponent of the party tendering evidence is to react in substance as regards the authenticity of a private record or document.
(2) Insofar as the record or document is signed by a name, the said declaration is to address the authenticity of the signature.
(3) Where this declaration is not made, the record or document shall be deemed to have been acknowledged as authentic unless the other declarations made by the party indicate that it intends to dispute the record’s or the document’s authenticity.
Section 440
Evidence of the authenticity of private records and documents
(1) Evidence is to be provided of the authenticity of a private record or document that has not been acknowledged as authentic.
(2) If the signature by a name has been established to be authentic as a definite fact, or if the signature using a mark set underneath a record or document has been certified by a notary, the writing above the signature or the mark shall be presumed to be authentic.
Section 441
Handwriting comparison
(1) The proof of the authenticity or falsity of a record or document may also be provided by a handwriting comparison.
(2) In such event, the party tendering evidence is to submit handwritings suitable for comparison, or is to petition that such handwritings be submitted pursuant to the stipulations of section 432 and, if necessary, is to offer evidence of their authenticity.
(3) If the handwriting suited for comparison is in the hands of the opponent, he is under obligation to produce such handwriting upon corresponding application being made by the party tendering evidence. The stipulations of sections 421 to 426 shall apply mutatis mutandis. Should the opponent fail to comply with the court order to produce the handwriting suited for comparison, or should, in the case provided for by section 426, the court have come to the conviction that the opponent has not carefully researched the whereabouts of the handwritings, the record or document may be deemed to be authentic.
(4) Should the party tendering evidence demonstrate to the satisfaction of the court that handwritings suited for comparison are in the hands of a third party, with the party tendering evidence being able to have such handwritings produced by bringing a corresponding court action, the stipulations of section 431 shall apply mutatis mutandis.
Section 442
Evaluation of the handwriting comparison
The court is to decide at its discretion and conviction regarding the results obtained by comparing the handwriting, and upon having heard an expert wherever appropriate.
Section 443
Safekeeping of suspicious records or documents
Records or documents, the authenticity of which is at issue, or the content of which is said to have been modified, shall remain in the safekeeping of the court registry until the legal dispute has been dealt with and terminated, unless they must be surrendered to another authority in the interests of public order.
Section 444
Consequences of the removal of a record or document
Where a record or document has been removed or has been rendered unfit for use in the intention of preventing the opponent from using it, the allegations made by the opponent regarding the nature and the content of the record or document may be deemed to have been proven.
Title 10
Evidence provided by examination of a party
Section 445
Examination of the opponent; offer to provide evidence
(1) Any party that has not fully provided other evidence by way of complying with its obligation to provide evidence, or that has failed to so submit other evidence, may offer to provide evidence by filing the petition that the opponent be examined regarding the facts and circumstances to be proven.
(2) This petition is not to be complied with if it concerns facts and circumstances regarding which the court deems the contrary to have been proven.
Section 446
Refusal by the opponent to be examined
Should the opponent refuse to have himself examined, or should he fail to make a statement in spite of having been asked to do so by the court, the court is to decide at its discretion and conviction, taking account of the overall factual situation and in particular the grounds cited in the refusal, whether or not it intends to deem proven the facts and circumstances alleged.
Section 447
Examination, upon corresponding application being made, of the party upon whom it is incumbent to provide evidence
The court may also examine the party upon whom it is incumbent to provide evidence regarding the facts and circumstances at issue where one party petitions that this be done and the other consents.
Section 448
Ex officio examination
Even if no petition has been filed by a party, and without consideration of the onus of proof, the court may direct that a party or both of the parties be examined regarding the facts and circumstances at issue, if the results of the hearings and of the taking of evidence, if any, do not suffice to establish to the satisfaction of the court the truth or untruth of a fact or circumstance that is to be proven.
Section 449
Examination of joined parties
Where the party to be examined consists of several joined parties, the court shall determine, depending on the circumstances of the case, whether all of the joined parties or only some of them are to be examined.
Section 450
Court order for evidence to be taken
(1) The court shall direct the examination of a party by issuing an order for evidence to be taken. If the party is not present in person when the order is pronounced, it is to be summoned ex officio to the examination, with the order for evidence being communicated to it. The summons shall be communicated to the party in person even if it has appointed an attorney of record; the summons need not be served.
(2) The implementation of the order may be suspended if, following its issuance, new evidence regarding the facts and circumstances to be proven is brought before the court. Once the new evidence has been taken, the court is to refrain from examining a party if the court regards the question to have been dealt with regarding which evidence is to be taken.
Section 451
Actual examination
The stipulations of sections 375, 376, 395 (1), subsection (2), first sentence, and of sections 396, 397, 398 shall apply mutatis mutandis to the examination of a party.
Section 452
Placing a party under oath
(1) Should the result obtained from the testimony of a party that has not been sworn in not suffice to convince the court of the truth or untruth of the fact or circumstance that is to be proven, the court may direct that the party is to be placed under oath regarding its testimony. Where both parties have been examined, the court may demand only of one party that it swear an oath regarding its statement on the same facts and circumstances.
(2) The oath shall be worded to the effect that the party has said nothing but the truth to the best of its knowledge, and that it has not concealed anything.
(3) The opponent may waive having the respectively other party sworn in.
(4) No party may admissibly be placed under oath if it has been convicted of perjury in a final and binding judgment.
Section 453
Evaluation of the evidence obtained in examining a party
(1) The court is to evaluate, at its discretion and conviction, the testimony of the party pursuant to section 286.
(2) Should the party refuse to testify or to swear an oath, section 446 shall apply mutatis mutandis.
Section 454
Failure of the party to appear
(1) Should the party fail to appear at the hearing determined for its examination, or for it to be placed under oath, the court shall decide at its sole discretion whether or not the testimony is to be deemed to have been refused, and shall do so in consideration of all circumstances, in particular of the reasons, if any, that the party has cited for its failure to appear.
(2) Where the hearing, at which the party failing to appear was to be examined or placed under oath, was arranged by the court hearing the case, then that hearing is to be used to hear oral argument on the merits of the case unless the court believes that arranging a new hearing for the examination is mandated.
Section 455
Persons under a legal disability
(1) If a party is a person under a legal disability, their legal representative is to be examined, subject to the rule set out in subsection (2). Should the party have a plurality of legal representatives, section 449 shall apply mutatis mutandis.
(2) Minors who are 16 years of age or older may be examined regarding facts and circumstances consisting of their own actions, or facts and circumstances they have perceived, and may also be placed under oath pursuant to section 452 wherever the court deems this to be reasonable based on the circumstances of the case. The same shall apply for a person having the capacity to sue and to be sued who is represented in the legal dispute by a custodian or curator.
Sections 456 to 477
(repealed)
Title 11
Administration of oaths and affirmations
Section 478
Oath taken in person
The oath must be sworn in person by the person under obligation to so swear it.
Section 479
Oath taken before the judge correspondingly delegated or requested
(1) The court hearing the case may direct that the oath be taken before one of its members, or before another court if the person under obligation to swear an oath is prevented from appearing before the court hearing the case, or if he is located at a great distance from the seat of the court and the oath will not be taken in the form governed by section 128a (2).
(2) The President of the Federal Republic of Germany shall take the oath in his residence before a member of the court hearing the case, or before another court.
Section 480
Cautionary remarks regarding the oath to be sworn
Prior to the oath being taken, the judge is to appropriately instruct the person under obligation to swear an oath as to the importance of swearing an oath, and is to likewise instruct him that he may swear the oath with or without a religious confirmation.
Section 481
Taking of the oath; wording of the oath
(1) The oath with religious confirmation is sworn such that the judge speaks the oath’s words, introducing it by the words
“You hereby swear, by God the almighty and all-knowing”,
with the person under obligation to swear an oath thereupon speaking the words (wording of the oath)
“I swear it, so help me God.”
(2) The oath without a religious confirmation is sworn such that the judge speaks the oath’s words, introducing it by the words
“You hereby swear”,
with the person under obligation to swear an oath thereupon speaking the words (wording of the oath)
“I swear it.”
(3) Where the person under obligation to swear an oath states that, as a member of a specific religious community or of a faith-based group, he wishes to confirm his oath using words of that community, he may add such words to the oath.
(4) In taking the oath, the party so swearing it is to raise his right hand.
(5) In cases in which a plurality of witnesses is to be sworn in simultaneously, the oath’s words shall be spoken by each person individually who is under obligation to swear an oath.
Section 482
(repealed)
Section 483
Oaths taken by persons suffering from a speech disorder or a hearing impairment
(1) A person suffering from a speech disorder or a hearing impairment shall, at his selection, take the oath by repeating the words of the oath, by copying them and signing them, or by being assisted by a person enabling communication with such person, whereby such assistant is to be involved by the court. The court is to provide the technical aids suitable for this purpose. The court is to draw the attention of the person suffering from a speech disorder or from a hearing impairment to his right to choose in this regard.
(2) Where the person suffering from a speech disorder or a hearing impairment has not exercised his right to choose pursuant to subsection (1), the court may demand that he take the oath in writing, or it may direct that a person enabling communication with such person be involved; the court may also do so if it is not possible to take the oath in the form selected pursuant to subsection (1), or only by making efforts that are not justified by the intended purpose.
Section 484
Solemn affirmation deemed equivalent to an oath
(1) If the person under obligation to swear an oath states that, for reasons of his faith or of his conscience, he does not wish to swear an oath, he is to make an affirmation. This affirmation shall be equivalent to an oath; the attention of the party so obligated is to be drawn to this fact.
(2) The affirmation shall be made such that the judge speaks the wording of the oath as the wording of the affirmation, introducing them by the words
“You affirm, being conscious of your responsibility before the court”,
with the person under obligation to make an affirmation thereupon speaking the words:
“Yes.”
(3) Section 481 subsections (3) and (5) and section 483 shall apply mutatis mutandis.
Title 12
Independent evidentiary proceedings
Section 485
Admissibility
(1) Upon the corresponding petition having been filed by a party, the court may direct in the course of litigation or outside of the proceedings that visual evidence be taken on site, that witnesses be examined, or that an expert prepare a report, provided that the opponent consents to doing so, or provided that there is the concern that evidence might be lost, or that it will become difficult to use it.
(2) Wherever a legal dispute is not yet pending, a party may petition that an expert prepare a written report if it has a legitimate interest in establishing:
1. The state of a person or the state or value of an object;
2. The cause of personal injury, property damage, or a material defect;
3. The effort required to remedy a personal injury, property damage or material defect.
Interests under law are assumed to be given if the establishment of the above facts may serve to avoid a legal dispute.
(3) To the extent the court has already directed that a report be prepared, a new report shall be prepared only if the prerequisites set out in section 412 have been met.
Section 486
Competent court
(1) Wherever a legal dispute is pending, the petition is to be filed with the court hearing the case.
(2) If a legal dispute is not yet pending, the petition is to be filed with that court that would be competent, according to the submission by the petitioner, to take the decision in the main action. In the subsequent litigation, the petitioner may not take recourse to the court having lacked jurisdiction.
(3) In cases of imminent danger, the petition may also be filed with the local court (Amtsgericht, AG) within the judicial district of which the person has his abode who is to be examined, or regarding whom a report is to be prepared, or within the judicial district of which the object is located that is to be visually inspected on site, or regarding which a report is to be prepared.
(4) The petition may be recorded with the registry for the files of the court.
Section 487
Content of the petition
The petition must:
1. Designate the opponent;
2. Designate the facts and circumstances regarding which evidence is to be taken;
3. Name the witnesses or designate the other evidence that may admissibly be taken pursuant to section 485;
4. Demonstrate to the satisfaction of the court the facts and circumstances the petitioner believes justify the independent evidentiary proceedings and the jurisdiction of the court.
Sections 488 and 489
(repealed)
Section 490
Decision on the petition
(1) The court shall decide on the petition by a court order.
(2) The order by which the court complies with the petition is to set out the facts and circumstances regarding which evidence is to be taken, as well as the evidence, naming the witnesses to be examined and the experts. The order is not contestable.
Section 491
Summons of the opponent
(1) The opponent is to be summoned to the hearing determined for the taking of evidence in such due time that he is able to protect his rights, provided that this can be achieved in light of the circumstances of the case; the order and a copy of the petition are to be served on him.
(2) Failure to comply with this rule shall not contravene the taking of evidence.
Section 492
Taking of evidence
(1) Evidence shall be taken in accordance with the rules applicable for the taking of evidence as such.
(2) The record of the taking of evidence is to remain in the safekeeping of the court that has directed the evidence to be taken.
(3) The court may summon the parties to the dispute to be heard in oral argument if it can be expected that the parties will settle; any such settlement is to be recorded by the court.
Section 493
Use in proceedings
(1) Should a party refer to facts or circumstances in proceedings regarding which independent evidentiary proceedings have been held, the independent evidentiary proceedings shall be equivalent to the taking of evidence before the court hearing the case.
(2) Where the opponent has failed to make an appearance at a hearing of the independent evidentiary proceedings, the result obtained therein may be used only if the opponent had been summoned in due time.
Section 494
Unknown opponent
(1) If the party tendering evidence does not designate an opponent, its petitions shall be admissible only if the party tendering evidence demonstrates to the satisfaction of the court that it is unable, through no fault of its own, to designate the opponent.
(2) Should the court comply with the petition, it may appoint a representative for the unknown opponent, who is to protect that opponent’s rights in the course of the evidence being taken.
Section 494a
Period for bringing proceedings in the courts
(1) Absent a pending legal dispute, the court is to direct that the petitioner is to bring proceedings within a period to be determined, and shall do so following the close of the taking of evidence, and upon corresponding application being made, without a hearing for oral argument.
(2) Where the petitioner fails to comply with this order, and upon corresponding application being made, the court is to pronounce in a corresponding court order that the petitioner is to bear the costs incurred by the opponent. A complaint subject to a time limit may be lodged against the decision.
Chapter 2
Proceedings pursued before the local courts (Amtsgerichte)
Section 495
Rules to be applied
(1) The rules applying to proceedings before the regional courts (Landgerichte) shall apply to the proceedings before the local courts, unless deviations result from the general regulations set out in Book 1 hereof, the special provisions made hereinbelow, and the constitution of the local courts.
Section 495a
Proceedings performed at the court’s equitably exercised discretion
The court may decide at its equitably exercised discretion on how to implement its proceedings if the value of the claim does not exceed the amount of 600 euros. Upon corresponding application being made, the matter must be dealt with in oral argument.
Section 496
Submission of written pleadings; declarations made for the record
The action, the statement of defence as well as any other petitions and declarations by a party that are to be served must be submitted to the court in writing, or must be recorded with the registry for the files of the court.
Section 497
Summonses
(1) The summons of the plaintiff to the hearing determined for the action is to be communicated by simple letter unless the court orders that it be served. Section 270 second sentence shall apply mutatis mutandis.
(2) A party need not be sent a summons if it was informed of the hearing when it brought the action or the petition, or recorded same with the registry for the files of the court, based on which the date of the hearing is determined by the court. This communication is to be recorded in the files.
Section 498
Service of the record of the action
Where an action has been recorded with the registry for the files of the court, the record of this filing shall be served instead of the statement of claim.
Section 499
Instructions
(1) In serving the statement of claim, or the record as to the action having been brought, to the defendant, he is to be instructed that the rules do not require him to be represented by counsel.
(2) Together with the instruction provided for by section 276, the defendant is to be instructed about the consequences of any written acknowledgment he may submit.
Sections 499a to 503
(repealed)
Section 504
Notification in the event the local court lacks jurisdiction
Should the local court (Amtsgericht) lack jurisdiction, this being local jurisdiction or competence ratione materiae, it shall indicate this fact to the defendant prior to holding the hearing on the merits of the case, and shall likewise draw the defendant’s attention to the consequences of entering an appearance on the merits of the case without filing a corresponding objection.
Section 505
(repealed)
Section 506
Subsequent lack of jurisdiction ratione materiae
(1) If, by countercharges being brought or by extending the demand for relief (section 264 numbers 2 and 3), a claim is raised for which the regional courts (Landgerichte) are competent, or if it is petitioned pursuant to section 256 subsection (2) that the court determine a legal relationship, for which the regional courts are competent, the local court is to declare by corresponding court order, provided a party has filed the corresponding petition, that it lacks jurisdiction, and shall do so prior to any further hearings being held on the merits of the case; the local court is to refer the legal dispute to the regional court.
(2) The stipulations of section 281 subsections (2) and (3), first sentence, shall apply mutatis mutandis.
Sections 507 to 509
(repealed)
Section 510
Declarations made regarding records or documents
A record or document is to be deemed as having been acknowledged as authentic if, in the event of a declaration not having been made, the party is asked by the court to make a declaration regarding its authenticity.
Section 510a
Content of the record
Declarations by a party, other than admissions and declarations regarding the petition for examination of a party, are to be included in the record of the hearing to the extent the court believes this is required.
Section 510b
Judgment requiring a party to take specific action
Should a party be sentenced to take specific action, the defendant may concurrently be sentenced, upon corresponding application being made by the plaintiff, to pay compensation for the case that the action is not taken within the period to be determined; the court is to assess such compensation at its sole discretion.
Section 510c
(repealed)
Book 3
Appellate remedies
Chapter 1
Appeal
Section 511
Appeal available as a remedy
(1) Appeals are an available remedy against the final judgments delivered by the court of first instance.
(2) An appeal shall be admissible only if:
1. The value of the subject matter of the appeal is greater than 600 euros, or if
2. In its ruling, the court of first instance has granted leave to appeal.
(3) The plaintiff in the appeal is to demonstrate to the satisfaction of the court the value pursuant to subsection (2) number 1; the plaintiff in the appeal may not file a statutory declaration in lieu of an oath.
(4) The court of first instance shall admit an appeal in cases in which:
1. The legal matter is of fundamental significance or wherever the further development of the law or the interests in ensuring uniform adjudication require a decision to be handed down by the court of appeal, and wherever
2. The judgment does not adversely affect the party by an amount higher than 600 euros.
The court of appeal is bound to the admission.
Section 512
Prior decisions handed down by the court of first instance
Those decisions taken prior to the final judgments shall also be subject to the assessment by the court of appeal unless they are incontestable pursuant to the stipulations of the present Code, or unless they are contestable by way of filing a complaint subject to a time limit.
Section 513
Grounds for appeal
(1) An appeal may only be based on the decision handed down having been based on a violation of the law (section 546), or on the facts and circumstances that should have been used as a basis pursuant to section 529 justifying a different decision.
(2) The appeal may not be based on the fact that the court of first instance erred in assuming it had jurisdiction.
Section 514
Default judgments
(1) A default judgment may not be contested by the party against which it has been delivered by filing an appeal or a cross appeal.
(2) A default judgment against which protest as such is not an available remedy shall be liable to appeal or cross appeal nonetheless insofar as such an appeal or cross appeal is based on the fact that there was no negligent or intentional failure to comply with procedural requirements. Section 511 (2) shall not be applied.
Section 515
Waiver of the right to appellate remedy
The waiver of the right to file an appeal shall be valid regardless of whether or not the opponent has accepted the declaration of waiver.
Section 516
Withdrawal of an appeal
(1) The plaintiff in the appeal may withdraw the appeal until the appellate judgment is pronounced.
(2) The withdrawal shall be declared to the court. Unless the withdrawal is declared at the hearing, it shall be declared by submitting a written pleading.
(3) The withdrawal shall result in the loss of the appeal filed and in the obligation to bear the costs arising as a consequence of the appeal having been filed. These effects are to be pronounced in a corresponding court order.
Section 517
Time limit for filing an appeal
The time limit for filing an appeal shall amount to one (1) month; this is a statutory period and shall begin upon the fully worded ruling having been served, at the latest, however, upon the expiry of five (5) months following pronouncement of the judgment.
Section 518
Time limit for filing an appeal in the event the judgment is amended
Should, within the time limit set for filing an appeal, a judgment be amended by a subsequent ruling (section 321), the period set for filing an appeal shall recommence upon the subsequent ruling having been served, also for the appeal against the ruling first promulgated. Should the same party lodge an appeal against both judgments, the two appeals are to be consolidated into a single appeals procedure.
Section 519
Notice of appeal
(1) The appeal is lodged by way of submitting a notice of appeal with the court of appeal.
(2) The notice of appeal must set out:
1. The reference number and designation of the judgment against which the appeal is being lodged;
2. The declaration as to an appeal being filed against the said judgment.
(3) An execution or certified copy of the judgment being challenged shall be submitted together with the notice of appeal.
(4) The general regulations as to preparatory written pleadings shall apply also to the notice of appeal.
Section 520
Particulars of the appeal
(1) The plaintiff in the appeal must provide particulars of the appeal.
(2) The period for submitting the particulars of the appeal shall amount to two (2) months and shall begin upon the fully worded ruling having been served, at the latest, however, with the expiry of five (5) months following pronouncement of the judgment. Upon a corresponding petition having been filed, the presiding judge may extend the period provided the opponent has consented. Without such consent, and if the presiding judge is satisfied that an extension will not delay the legal dispute, or if the plaintiff in the appeal has submitted substantial grounds to the court, then the presiding judge may exercise his discretion in extending the period by up to one (1) month.
(3) Unless already included in the notice of the appeal, the particulars of the appeal must be submitted to the court of appeal as a written pleading. The particulars of the appeal must:
1. Declare the extent to which the judgment is being contested, and must set out the specific petition as to how the judgment is to be modified (petitions in the appeal proceedings);
2. Designate the circumstances indicating a violation of the law and the significance they have for the ruling being contested;
3. Name the specific indications giving rise to doubts as to the court having correctly or completely established the facts in the ruling being contested, and therefore mandating a new fact-finding process;
4. Designate the new means by which the plaintiff in the appeal intends to challenge the opponent or defend his case, listing the facts and circumstances based on which these new means of challenge or defence are to be admitted pursuant to section 531 (2).
(4) The particulars of the appeal furthermore shall include:
1. Information on the value of the subject matter of the appeal if this does not consist of a specific amount of money, provided that the admissibility of the appeal depends on it;
2. A statement as to whether any reasons would prevent the matter from being ruled on by a judge sitting alone.
(5) The general regulations governing preparatory written pleadings apply also to the particulars of the appeal.
Section 521
Service of the notice of appeal and its particulars
(1) The notice of appeal and the particulars of the appeal are to be served on the opponent party.
(2) The presiding judge or the court of appeal may set a deadline by which the opponent party is to submit a written statement of defence in appeal proceedings and by which the plaintiff in the appeal is to submit its reply to the statement of defence in appeal proceedings. Section 277 shall apply mutatis mutandis.
Section 522
Review of the appeal’s admissibility; court order denying leave to appeal
(1) The court of appeal is to review, ex officio, whether the appeal as such is admissible, whether it has been lodged in the form required by law and within the period set and whether particulars have been provided. Should one of these requirements not have been met, the appeal is to be overruled as inadmissible. The decision may be given as a court order. The court order may be challenged by way of filing a complaint on points of law.
(2) The court of appeal is to immediately deny leave to appeal in a decision if all of its members are unanimously satisfied that:
1. The appeal manifestly has no chance of success,
2. The legal matter is not of any fundamental significance,
3. The further development of the law or the interests in ensuring uniform adjudication do not require a decision to be handed down by the court of appeal, and that
4. No hearing for oral argument is mandated.
Prior to handing down such a ruling, the court of appeal or the presiding judge is to indicate to the parties to the dispute its intention to deny leave to appeal and the reasons therefor, and is to provide the plaintiff in the appeal with the opportunity to submit its position within a period of time to be set. Insofar as the reasons for denying leave to appeal are not already provided in the notice stipulated by the second sentence hereof, the court order provided for in the first sentence is to set out these reasons. Moreover, a court order, which is contestable, is to refer to the facts as established by the court of prior instance in the ruling being contested, and is to summarise any modifications or amendments that may have been made.
(3) The plaintiff in the appeal is entitled to lodge such appellate remedy against the court order pursuant to subsection (2), first sentence, that would have been admissible had the court handed down its decision by a ruling.
Section 523
Notice scheduling a hearing
(1) Should leave to appeal not be denied or should the appeal not be overruled by a court order pursuant to section 522, the court of appeal shall decide on whether or not to transfer the legal dispute to the judge sitting alone. Thereupon, a hearing is to be scheduled without undue delay.
(2) Section 274 (3) shall apply mutatis mutandis to the period that must lapse between the time at which notice of the hearing scheduled is given and the hearing itself.
Section 524
Cross appeal
(1) The respondent in the appeal may join the appeal. This shall be effected by filing the notice of cross appeal with the court of appeal.
(2) A cross appeal is an available remedy also if the respondent in the appeal has waived an appeal or if the time limit for filing an appeal has lapsed. A cross appeal may admissibly be filed until the deadline has expired by which the respondent in the appeal is to submit its statement of defence in appeal proceedings. This deadline shall not apply should the cross appeal have as its subject matter a sentence for recurrent performance becoming due in the future (section 323).
(3) The reasons for the cross appeal must be set out in the notice of cross appeal. The stipulations of section 519 subsections (2) and (4), of section 520 (3) and of section 521 shall apply mutatis mutandis.
(4) The cross appeal shall cease to be effective should the appeal be withdrawn, should leave to appeal have been denied, or should it have been overruled by a court order.
Section 525
General procedural rules
Unless otherwise provided for in the present Chapter, the rules applying to the proceedings before the regional courts (Landgerichte) as courts of first instance are to be applied mutatis mutandis to the further proceedings. No conciliation hearing need be held.
Section 526
Judge taking the decision
(1) The court of appeal may transfer, by a court order, the legal dispute to one of its members as a judge sitting alone, for him to take the decision where:
1. The contested decision was delivered by a judge sitting alone,
2. The matter does not entail any factual or legal difficulties,
3. The legal matter is not of any fundamental significance, and
4. Oral argument on the merits of the case has not already been heard at the main hearing, unless a judgment subject to a reservation of rights, partial judgment, or interlocutory judgment has been handed down in the meantime.
(2) The judge sitting alone shall submit the legal dispute to the court of appeal for it to decide on whether it intends to assume the proceedings or not if:
1. A material change to the litigation circumstances engenders special factual or legal difficulties of the matter or the fundamental significance of the legal matter, or if
2. This is petitioned by the parties in congruent declarations.
The court of appeal shall assume the legal dispute if the prerequisites stipulated by number 1 first sentence are met. Upon having heard the parties, it shall rule on the matter by court order. Once again transferring the matter to the judge sitting alone is ruled out.
(3) An appellate remedy may not be based on the fact that a transfer, referral or assumption has been made or has been failed to be made.
(4) Solely the presiding judge of the division for commercial matters may act as judge sitting alone on matters in that division’s purview.
Section 527
Judge sitting alone in preparatory proceedings
(1) Should the legal dispute not be transferred to a judge sitting alone pursuant to section 526, the court of appeal may assign the matter to one of its members as a judge sitting alone by way of preparing the decision. The presiding judge of the division for commercial matters shall act as judge sitting alone; outside of a hearing no such assignment need be made.
(2) The judge sitting alone is to promote the matter such that it can be dealt with and terminated in a hearing before the court of appeal. For this purpose, he may take individual evidence to the extent this is desirable in the interests of simplifying the hearing before the court of appeal and insofar as it is to be assumed, from the outset, that the court of appeal will be able to properly evaluate the results obtained in taking evidence also without having a direct impression of its course.
(3) The judge sitting alone shall decide:
1. On the referral pursuant to section 100 in conjunction with sections 97 to 99 of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG);
2. Wherever the action or the appeal is withdrawn, the claim lodged is waived or acknowledged;
3. In the event of one of the parties or both parties failing to comply with procedural rules;
4. On the obligation to bear the costs of the proceedings unless the court of appeal will rule on this together with the merits of the case;
5. On the value of the subject matter being litigated;
6. On costs, fees and expenditures.
(4) Should the parties agree to so proceeding, the judge sitting alone may also decide on other matters.
Section 528
Binding effect of petitions filed in appeal proceedings
Solely the petitions filed in the appeal proceedings shall be subject to review and decision by the court of appeal. The judgment handed down by the court of first instance may be modified only to the extent its modification has been petitioned.
Section 529
Scope of the review by the court of appeal
(1) The court of appeal is to base its hearing and decision on:
1. The facts established by the court of first instance, unless specific indications give rise to doubts as to the court having correctly or completely established the facts relevant for its decision, and therefore mandate a new fact-finding process;
2. New facts and circumstances insofar as these may permissibly be considered.
(2) The judgment contested will only be reviewed for a defect in the proceedings that is not to be taken into account ex officio if such defect has been asserted pursuant to section 520 (3). In all other regards, the court of appeal shall not be bound to the grounds for appeal asserted.
Section 530
Delays in submitting means of challenge or of defence
Should, in contravention of the stipulations made in section 520 and section 521 (2), means of challenge or defence not be submitted in due time, section 296 subsections (1) and (4) shall apply mutatis mutandis.
Section 531
Means of challenge or defence that have been dismissed; new means of challenge or defence
(1) Any means of challenge or defence that were rightly dismissed in the proceedings before the court of first instance shall be ruled out.
(2) New means of challenge or defence are to be admitted only if they:
1. Concern an aspect that the court of first instance has recognisably failed to see or has held to be insignificant,
2. Were not asserted in the proceedings before the court of first instance due to a defect in the proceedings or
3. Were not asserted in the proceedings before the court of first instance, without this being due to the negligence of the party.
The court of appeal may demand that those facts be demonstrated to its satisfaction based on which the new means of challenge or defence may permissibly be brought before the court.
Section 532
Objections as to a complaint being inadmissible
Non-essential objections concerning the admissibility of the complaint that, in contravention of the stipulations made in sections 520 and 521 (2), were not lodged in due time are to be admitted only if the party provides sufficient excuse for such delay. The same shall apply to any non-essential new objections concerning the admissibility of the complaint if the party would have been able to submit them in the proceedings before the court of first instance. Should the court so demand, the grounds precluding culpability are to be substantiated.
Section 533
Modification of the suit filed; declaration as to claims being offset; counterclaims
The suit filed may admissibly be modified, claims may admissibly be declared to be offset and counterclaims may admissibly be brought only if:
1. The opponent consents to this being done or the court believes this to be expedient, and
2. These actions can be based on facts and circumstances on which, pursuant to section 529, the court of appeal is to base its hearing and decision regarding the appeal in any case.
Section 534
Loss of the right to file objections
Should a rule concerning the proceedings before the court of first instance have been violated, this can no longer be objected to before the appellate instance on fact and law wherever the party has already lost its right to file objections in the proceedings before the court of first instance pursuant to the stipulations of section 295.
Section 535
Admission of guilt before the court
Any admission of guilt made before the court of first instance shall remain effective also before the appellate instance on fact and law.
Section 536
Examination of a party
(1) The court of appeal may only order a party to be examined or to be sworn in, which has declined to be examined in the proceedings before the court of first instance or which has refused to make a statement or to be sworn in, if the court is satisfied that the party had sufficient reason to so decline to be examined or refuse to be sworn in and that these grounds have in the meantime ceased to exist.
(2) If a party was examined in the proceedings before the court of first instance and was sworn in as regards the statements made, the court of appeal may order the opponent to be examined under oath only if the examination or placement under oath in the proceedings before the court of first instance was inadmissible.
Section 537
Provisionally enforceable judgments
(1) A judgment handed down by the court of first instance that is not, or not unconditionally, declared provisionally enforceable is to be declared provisionally enforceable by the court of appeal by delivering a corresponding court order upon accordingly having been petitioned to do so, unless the petitions in the appeal proceedings have contested the judgment. The decision may permissibly be taken only following expiry of the deadline set for submitting particulars of the appeal.
(2) The court order is incontestable.
Section 538
Referral to a court of lower instance
(1) The court of appeal is to take the evidence required and is to decide on the matter as such.
(2) The court of appeal may refer the matter to a court of lower instance, insofar as further hearings are required, while repealing the judgment and the proceedings, only:
1. Insofar as the proceedings before the court of first instance are subject to a material irregularity and, due to this irregularity, it will be necessary to take evidence in a comprehensive scope or under considerable expenditure of time and effort;
2. If a protest entered has been overruled as inadmissible by the judgment contested;
3. If the judgment contested has only ruled on the admissibility of the action;
4. If, in the case of a claim that is in dispute both on its merits and as regards its amount, a preliminary decision has been taken by the judgment contested as regards the merits of the claim, or if the action has been dismissed, unless, however, the dispute regarding the amount of the claim is ready for decision;
5. If the judgment contested was delivered, subject to a reservation of rights, in proceedings on claims arising from a deed, in which solely documentary evidence is submitted, or proceedings on claims arising from a bill of exchange;
6. If the judgment contested is a default judgment; or
7. If the judgment contested is a partial judgment delivered contrary to the pre-requisites set out in section 301;
and if one party petitions that the matter be referred to a court of lower instance. In the case set out under number 3 hereinabove, the court of appeal is to conclusively deal with all objections. In the case set out under number 7, no petition need be filed.
Section 539
Default proceedings
(1) Should the plaintiff in the appeal fail to appear at the hearing scheduled, his appeal shall be dismissed by a default judgment at the petition of a party.
(2) Should the respondent in the appeal fail to appear at the hearing scheduled, and should the plaintiff in the appeal petition for a default judgment to be delivered against the respondent in the appeal, the submissions admissibly made by the plaintiff in the appeal as regards the facts and circumstances of the matter shall be deemed to have been acknowledged by the respondent. Insofar as these statements justify the petition filed in the appeal, the court is to decide in accordance with the petition filed; to the extent this is not the case, leave to file the appeal shall be denied.
(3) In all other regards, the rules governing default proceedings before the court of first instance shall apply mutatis mutandis.
Section 540
Content of the appellate judgment
(1) Instead of the facts of the case and the reasons on which the ruling is based, the appellate judgment shall set out:
1. A reference to the findings of fact as made in the ruling being contested, depicting any changes or amendments,
2. A brief summary of the reasons for the modification, repeal or confirmation of the decision contested.
Should the judgment be pronounced at the hearing at which the court proceedings have been declared terminated, the presentation of the case as stipulated by the first sentence hereof may also be included in the record of the hearing.
(2) Section 313a and section 313b shall apply mutatis mutandis.
Section 541
Court records of the dispute
(1) Immediately upon the notice of appeal having been submitted, the registry of the court of appeal is to procure the records of the dispute from the registry of the court of first instance. The records are to be sent to the court of appeal without undue delay.
(2) Upon the appeal having been conclusively dealt with and terminated, the registry of the court of first instance is to return the records, together with a certified copy of the decision handed down by the appellate instance on fact and law.
Chapter 2
Appeal on points of law
Section 542
Appeal on points of law as an available remedy
(1) Subject to the following provisions, an appeal on points of law may be filed against the final judgments delivered by the appellate instance on fact and law.
(2) No appeal on points of law may be filed against rulings by which a decision was taken on the issuance, modification, or repeal of a seizure or an injunction. The same shall apply to any judgments regarding instances in which a party has been put into possession early in expropriation proceedings or procedures for the reallocation of land.
Section 543
Admission to appeal
(1) An appeal on points of law may be lodged only if:
1. The court of appeal has admitted its being lodged in the judgment, or
2. The court hearing the appeal on points of law has admitted its being lodged based on a complaint against the refusal to grant leave to appeal on points of law.
(2) An appeal on points of law is to be admitted if:
1. The legal matter is of fundamental significance, or
2. The further development of the law or the interests in ensuring uniform adjudication require a decision to be handed down by the court hearing the appeal on points of law.
The court hearing the appeal on points of law is bound to the admission of the appeal by the court of appeal.
Section 544
Complaint against denial of leave to appeal
(1) Any denial of leave to appeal on points of law by the court of appeal is subject to the right to file a complaint against it (complaint against denial of leave to appeal). Such complaint is to be lodged with the court hearing the appeal on points of law within a statutory period of one (1) month following service of the fully worded ruling, at the latest, however, by the expiry of six (6) months after the judgment has been pronounced. An execution or certified copy of the ruling against which an appeal on points of law is to be lodged shall be submitted to the court along with the brief on appeal.
(2) A reasoning for the complaint is to be filed within two (2) months following service of the fully worded ruling, at the latest, however, by the expiry of seven (7) months after the judgment has been pronounced. Section 551 (2) fifth and sixth sentences shall apply mutatis mutandis. The reasoning must set out the grounds on which leave to file an appeal should be granted (section 543 (2)).
(3) The court hearing the appeal on points of law shall give the claimant’s opponent in the appeal the opportunity to state his position.
(4) The court hearing the appeal on points of law shall rule on the complaint in a corresponding court order. The reasons on which the order is based shall be summarised briefly; such reasoning may be forgone where it would not contribute to clearing up the prerequisites based on which leave for filing an appeal on points of law is to be granted, or where the court finds for the party filing the complaint. The decision regarding the complaint is to be served upon the parties.
(5) If a complaint is lodged, this shall suspend the legal validity of the judgment. Section 719 subsections (2) and (3) shall apply mutatis mutandis. Once the court hearing the appeal on points of law refuses to comply with the appeal, the judgment will become final and binding.
(6) Insofar as the court finds for the party filing a complaint against the refusal to grant leave to appeal on points of law, the complaint procedure shall be continued as appellate proceedings on points of law. In such event, the complaint filed in proper form and in due time against denial of leave to appeal shall count as the filing of the appeal on points of law. Upon the decision being served on the parties, the period for submitting the reasoning for the appeal on points of law shall commence.
(7) Should the court of appeal have violated the claimant’s right to be given an effective and fair legal hearing in a manner relevant to the decision, the court hearing the appeal on points of law may repeal the judgment contested, in derogation from subsection (6), in its order complying with the appeal, and may refer the legal dispute back to the court of appeal, for it to once again hear the case and to rule on it.
Footnote: Section 544: Regarding the application of this stipulation until December 31st, 2011 cf. Section 26 number 8 first sentence of the Introductory Law for the Code of Civil Procedure (Gesetz, betreffend die Einführung der Zivilprozessordnung, ZPOEG).
Section 545
Grounds for an appeal on points of law
(1) An appeal on points of law may only be based on the reason that the contested decision is based on a violation of the law.
(2) An appeal on points of law may not be based on the fact that the court of first instance was wrong in assuming that it had or did not have jurisdiction.
Section 546
Definition of the term “violation of the law”
The law is violated where a legal norm has not been applied, or has not been applied properly.
Section 547
Absolute grounds for an appeal on points of law
A decision shall always be regarded to have been based on a violation of the law where:
1. The composition of the court of decision was not compliant with the relevant provisions;
2. A judge was involved in the decision who, by law, was prohibited from holding judicial office, unless this impediment has been asserted by a motion to recuse a judge without meeting with success;
3. A judge was involved in the decision although he had been recused for fear of bias and the motion to so recuse him had been declared justified;
4. A party to the proceedings had not been represented in accordance with the stipulations of the law, unless it had expressly or tacitly approved the litigation;
5. The decision has been given based on a hearing for oral argument in which the rules regarding the admission of the public to the proceedings were violated;
6. Contrary to the provisions of the present Code, the decision does not set out the reasons for the judgment.
Section 548
Time limit for filing an appeal on points of law
The period for submitting an appeal on points of law shall amount to one (1) month; this is a statutory period and shall begin upon the fully worded appellate judgment having been served, at the latest, however, upon the expiry of five (5) months of the judgment having been pronounced.
Section 549
Filing an appeal on points of law
(1) The appeal on points of law is filed by submitting the notice on appeal on points of law to the court hearing the appeal on points of law. The notice on appeal on points of law must include:
1. The reference number and designation of the judgment against which the appeal on points of law is being filed;
2. The declaration that an appeal on points of law is being filed against the said judgment.
Section 544 (6), second sentence, shall remain unaffected hereby.
(2) The general regulations regarding preparatory written pleadings are applicable also to notices on appeal on points of law.
Section 550
Service of the notice on appeal on points of law
(1) An execution or certified copy of the judgment being contested is to be enclosed with the notice on appeal on points of law, unless this has already been done pursuant to section 544 (1), third sentence.
(2) The notice on appeal on points of law is to be served on the opponent party.
Section 551
Reasoning provided for the appeal on points of law
(1) The appellant must provide reasoning for filing the appeal on points of law.
(2) Unless already set out in the brief on appeal on points of law, the reasoning for the appeal on points of law is to be submitted to the court hearing the appeal on points of law in a written pleading. The period for submitting the reasoning for the appeal on points of law shall amount to two (2) months. It shall commence upon the fully worded ruling having been served, at the latest, however, with the expiry of five (5) months upon the judgment having been pronounced. Section 544 (6), third sentence, shall remain unaffected hereby. Upon a corresponding petition having been filed, the presiding judge may extend the period, subject to this being consented to by the opponent. Should the opponent not grant his consent, the period may be extended by up to two (2) months provided that the presiding judge is satisfied, at his discretion and conviction, that this extension will not delay the legal dispute, or if the appellant demonstrates substantial grounds; if, within this period, it is not possible to grant the appellant the opportunity to inspect the court records of the dispute for a reasonable period of time, the presiding judge may extend the period, upon corresponding application being made, by up to two (2) months following the court records of the dispute having been sent.
(3) The reasoning for the appeal on points of law must include:
1. The declaration to which extent the judgment is being contested and a petition is being made for its repeal (petitions made in the appeal on points of law);
2. The grounds for the appeal on points of law, these being:
a) The specific designation of the circumstances from which the violation of the law is apparent;
b) Insofar as the appeal on points of law is based on the allegation that the law has been violated with regard to the proceedings: the designation of the facts that reflect this irregularity.
If the appeal on points of law has been admitted on the basis of a complaint against denial of leave to appeal, reference may be made, in providing the reasoning for the appeal on points of law, to the reasons cited in the complaint against denial of leave to appeal.
(4) Section 549 (2) and section 550 (2) shall apply mutatis mutandis to the reasoning for the appeal on points of law.
Section 552
Review of admissibility
(1) The court hearing the appeal on points of law is to review ex officio whether the appeal on points of law as such is an available remedy, whether or not it has been filed in keeping with statutory requirements as to form and time, and whether or not the grounds for it have been provided. Should one of these requirements not have been met, the appeal on points of law is to be overruled as inadmissible.
(2) The decision may be given as a court order.
Section 552a
Court order denying leave to appeal
The court hearing the appeal on points of law shall dismiss by unanimous decision the appeal on points of law admitted by the court of appeal if the court hearing the appeal on points of law is convinced that the prerequisites for admitting the appeal on points of law have not been met and that the appeal on points of law has no chance of success. Section 522 (2) second and third sentences hereof shall apply mutatis mutandis.
Section 553
Hearing date as determined by the court; time for entering an appearance
(1) Where the appeal on points of law is not overruled as inadmissible by a court order and where it is not dismissed pursuant to section 552a, a hearing is to be scheduled for oral argument and this date is to be made known to the parties.
(2) Section 274 (3) shall apply mutatis mutandis to the period that must lapse between the time at which the hearing date is made known and the hearing itself.
Section 554
Cross appeal on points of law
(1) The respondent in the appeal on points of law may join the appeal on points of law. This shall be effected by filing a notice of cross appeal on points of law with the court hearing the appeal on points of law.
(2) A cross appeal on points of law is an available remedy also if the respondent in the appeal on points of law has waived an appeal on points of law, if the time limit for filing an appeal on points of law has lapsed, or if the appeal on points of law has been dismissed. A cross appeal on points of law is to be declared prior to the expiry of one (1) month following service of the reasoning for the appeal on points of law.
(3) The grounds for the cross appeal on points of law must be set out in the notice of cross appeal. Section 549 (1), second sentence, and subsection (2) and sections 550 and 551 (3) shall apply mutatis mutandis.
(4) The cross appeal on points of law shall cease to be effective should the appeal on points of law be withdrawn, should it have been overruled or dismissed by a court order.
Section 555
General procedural rules
(1) Unless otherwise provided for in the present Chapter, the rules applying to the proceedings before the regional courts (Landgerichte) as courts of first instance are to be applied mutatis mutandis to the further proceedings. No conciliation hearing need be held.
(2) The stipulations of sections 348 to 350 are not to be applied.
(3) A judgment based on the defendant's acknowledgment shall be handed down only where the plaintiff has filed a separate petition to this effect.
Section 556
Loss of the right to file objections
Should a rule concerning the proceedings before the appellate instance on fact and law have been violated, this can no longer be objected to before the court hearing the appeal on points of law wherever, pursuant to the stipulations of section 295, the party has already lost its right to file objections in the proceedings before the appellate instance on fact and law.
Section 557
Scope of the review performed upon an appeal having been filed on points of law
(1) Solely the petitions filed by the parties shall be subject to review by the court hearing the appeal on points of law.
(2) Those decisions shall also be subject to assessment by the court hearing the appeal on points of law that preceded the final judgment, unless they are incontestable pursuant to the stipulations of the present Code.
(3) The court hearing the appeal on points of law is not bound to the grounds being asserted in the appeal on points of law. The judgment contested may only be reviewed for irregularities in the proceedings that are not to be taken into account ex officio if such irregularities have been objected to pursuant to sections 551 and 554 (3).
Section 558
Provisionally enforceable judgments
A judgment handed down by the court of appeal that is not, or not unconditionally, declared provisionally enforceable is to be declared provisionally enforceable by the court hearing the appeal on points of law delivering a corresponding court order upon having been petitioned to do so, unless the judgment has been contested by the petitions submitted in the proceedings of the appeal on points of law. The decision may permissibly be taken only following expiry of the period set for submitting the reasoning for the appeal on points of law.
Section 559
Limited review of the facts as established by the courts of prior instance
(1) Only those submissions by the parties in the proceedings shall be subject to assessment by the court hearing the appeal on points of law that are apparent from the appellate judgment or the record of the session of the court. Moreover, solely those facts may be taken into account that have been set out in section 551 (3) number 2 lit. b.
(2) If the court of appeal has established that an allegation as to fact is true or untrue, this determination shall be binding upon the court hearing the appeal on points of law, unless it has been challenged by an admissible and justified petition that the court hearing the appeal on points of law review such determination.
Section 560
Acts not open to review
The decision of the court of appeal regarding the existence and the content of acts, on the violation of which the appeal on points of law pursuant to section 545 cannot be based, shall govern for the decision to be delivered in the appeal on points of law.
Section 561
Denial of leave to appeal on points of law
If the reasoning provided for the appellate judgment does indicate that the law has been violated, but the decision itself appears to be correct based on other grounds, leave to appeal on points of law is to be denied.
Section 562
Reversal of the contested judgment
(1) To the extent the appeal on points of law is deemed justified, the contested judgment is to be reversed.
(2) Where the judgment is reversed due to irregularities in the proceedings, the proceedings are to be reversed concurrently to the extent they are affected by such irregularities.
Section 563
Referral to a court of lower instance; decision on the merits of the case by the court hearing the appeal on points of law
(1) In the event the judgment is reversed, the matter is to be referred to the court of appeal, which is to hear it once again and is to decide on it. The matter may also be referred to another formation of the court of appeal.
(2) The court of appeal is to base its decision on the legal assessment on which the reversal of the judgment was based.
(3) However, the court hearing the appeal on points of law is to decide on the matter as such if the judgment is reversed only due to a violation of the law, in application of the law to the situation of fact as established, and if in light of said situation the matter is ready for the final decision to be taken.
(4) If it is conceivable, in the case set out hereinabove in subsection (3) for the decision to be delivered on the matter as such, that acts might be applied on the violation of which the appeal on points of law pursuant to section 545 cannot be based, the matter may be referred to the court of appeal, which is to hear it once again and is to decide on it.
Section 564
No reasoning for the decision in the case of objections due to irregularities in the proceedings
No reasoning need be provided for the decision insofar as the court hearing the appeal on points of law is of the opinion that the objections as to irregularities in the proceedings are inconsequential. This shall not apply to objections pursuant to section 547.
Section 565
Rules of the appeal proceedings to be applied in appeals on points of law
The rules applicable to the appeal regarding the contestability of default judgments, regarding the declaration of waiver of appellate remedies and their withdrawal, regarding the objections as to a complaint being inadmissible and regarding the demand for, transmission and return of the court records of the dispute, shall apply mutatis mutandis to the appeal on points of law. An appeal on points of law may be withdrawn without the consent of the respondent in the appeal on points of law only prior to the time at which the respondent in the appeal on points of law commences oral argument on the merits of the case.
Section 566
Immediate appeal on points of law in lieu of an appeal on facts and law
(1) Upon corresponding application being made, an appeal on points of law may be filed directly with the competent court against final judgments delivered in proceedings before the court of first instance where an appeal against such judgments is admissible, thus passing over the appellate instance on fact and law (leap-frog appeal), if:
1. The opponent consents to passing over the appellate instance on fact and law; and
2. The court hearing the appeal on points of law allows the leap-frog appeal.
The petition for leave to file a leap-frog appeal as well as the declaration of consent shall be deemed to be a waiver of the appellate remedies provided by the appeal.
(2) Leave to appeal is to be petitioned by submitting a written pleading (brief for leave to appeal) to the court hearing the appeal on points of law. Sections 548 to 550 shall apply mutatis mutandis. The petition must set out the prerequisites for granting leave to file a leap-frog appeal (subsection (4)). The written declaration of consent by the respondent is to be attached to the petition for leave to appeal; it may also be submitted by the attorney of record in the proceedings of first instance or, if the legal dispute in the proceedings before the court of first instance was none in which the parties had to be represented by counsel, it may be recorded with the registry for the files of the court.
(3) The petition for leave to file a leap-frog appeal shall suspend the legal validity of the judgment. Section 719 subsections (2) and (3) shall apply mutatis mutandis. The court registry of the court hearing the appeal on points of law is to demand, and shall do so without undue delay once the petition has been submitted, that the registry of the court of first instance provide it with the court records of the dispute.
(4) Leave to file a leap-frog appeal shall be granted only if:
1. The legal matter is of fundamental significance; or
2. The further development of the law or the interests in ensuring uniform adjudication require a decision by the court hearing the appeal on points of law.
The leap-frog appeal may not be based on irregularities in the proceedings.
(5) The court hearing the appeal on points of law shall decide on the petition for leave to file a leap-frog appeal by delivering a corresponding order. The order is to be served on the parties.
(6) Should the court refuse to comply with the petition for leave to appeal on points of law, the judgment shall become final and binding.
(7) Where leave is granted to file an appeal on points of law, the proceedings shall be continued as appellate proceedings on points of law. In this case, the petition for leave to appeal on points of law, submitted in proper form and in due time, shall be deemed to be the filing of the appeal on points of law. Upon the decision being served, the period for submission of the reasoning for the appeal on points of law shall commence.
(8) The further procedure is determined by the provisions applying to the appeal on points of law. Section 563 is to be applied subject to the proviso that the matter is referred to the court of first instance. If an appeal is filed against the subsequent decision of the court of first instance, the court of appeal is to base its decision on the legal assessment that serves as the basis for the reversal of the judgment by the court hearing the appeal on points of law.
Chapter 3
Complaints
Title 1
Complaints subject to a time limit
Section 567
Complaints subject to a time limit; cross appeal under a complaint
(1) A complaint subject to a time limit may be filed against the decisions delivered by the local courts (Amtsgerichte) and regional courts (Landgerichte) in proceedings before them as courts of first instance if
1. This has been expressly determined by law; or
2. The decisions so being challenged did not require a hearing for oral argument and dismissed a petition concerning the proceedings.
(2) A complaint may be filed against decisions as to costs only if the subject matter of the appeal is in excess of 200 euros.
(3) The respondent in the complaint may join the complaint even in those cases in which he has waived filing a complaint, or the period within which such a complaint must be filed has lapsed. This joinder shall cease to be effective should the complaint be retracted or overruled as inadmissible.
Section 568
Judge sitting alone as the court of decision
The court hearing the complaint shall rule by one of its members acting as a judge sitting alone in cases in which the contested decision was delivered by a judge sitting alone or a senior judicial officer. The judge sitting alone shall transfer the proceedings to the court hearing the complaint for it to decide in the composition required by the stipulations of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG) if:
1. The matter is characterised by particular difficulties in fact or in law; or
2. The legal matter is of fundamental significance.
Appellate remedies may not be based on a transfer that has been made or has been failed to have been made.
Section 569
Time limit and formal requirements
(1) Unless any other period has been determined, the complaint subject to a time limit is to be filed within a statutory period of two (2) weeks with the court the decision of which is being contested, or with the court hearing the complaint. Unless determined otherwise, the statutory period shall commence running upon service of the decision, and at the latest upon expiry of five (5) months of the judgment having been pronounced. Should the requirements be met for an action for annulment or for an action for retrial of the case, the complaint may also be filed following expiry of the statutory period within the statutory periods applying for these actions.
(2) The complaint is filed by submitting a notice regarding the complaint on points of law. The brief regarding the complaint on points of law must designate the contested decision as well as the declaration that a complaint is being filed against this decision.
(3) The complaint may also be declared by recording it with the registry for the files of the court if:
1. The legal dispute in the proceedings before the court of first instance is not, or was not, to be pursued as proceedings in which the parties must be represented by counsel;
2. The complaint concerns assistance with court costs; or
3. The complaint is brought by a witness, an expert or a third party in the sense as defined by sections 142 and 144.
Section 570
Suspensive effect; interim orders
(1) The complaint shall have suspensive effect only where it concerns an order of means of administrative coercion or other coercive measures.
(2) The court or the presiding judge whose decision is being contested may suspend the enforcement of the decision.
(3) The court hearing the complaint may issue an interim order prior to delivering its decision; in particular, it may suspend the enforcement of the contested decision.
Section 571
Reasoning; extinction of the exercise of a right (preclusion); exceptions from the statutory requirement to be represented by an attorney
(1) The grounds for filing the complaint are to be provided.
(2) The complaint may be based on new means of challenge or defence. It may not be based on the fact that the court of first instance was wrong in assuming that it had jurisdiction.
(3) The presiding judge or the court hearing the complaint may set a period within which the means of challenge or defence are to be submitted to the court. If the means of challenge or defence are not submitted within this period, they are to be admitted only if the court holds, in its discretion and conviction, that admitting them would not delay the proceedings being dealt with and terminated, or if the party provides sufficient excuse for such delay. Should the court so require, the grounds ruling out culpability are to be demonstrated to the satisfaction of the court.
(4) Should the court order that a written declaration be made, this may be recorded with the registry for the files of the court in all instances in which the complaint may be recorded with the registry for the files of the court (section 569 (3)).
Section 572
Course of the complaint procedure
(1) Should the court or the presiding judge whose decision is being contested hold that the complaint is justified, they are to grant redress; in all other cases, the complaint is to be presented to the court hearing the complaint without undue delay. Section 318 shall remain unaffected hereby.
(2) The court hearing the complaint is to review ex officio whether the complaint as such is an available remedy and whether or not it has been filed in keeping with statutory requirements as to form and time. Should one of these requirements not have been met, the complaint is to be overruled as inadmissible.
(3) Should the court hearing the complaint hold that the complaint is justified, it may transfer the required order to the court or presiding judge who had delivered the decision giving rise to the complaint.
(4) The decision as to the complaint shall be delivered by court order.